The urgent request to the judge came at 7:44 a.m. on a Saturday – and it seemed harrowing.
A detainee at the Buffalo Federal Detention Facility in Batavia, the federal judge was told, had been on a hunger strike for 19 days and had missed 62 meals and was refusing to drink water or nutritional supplements. A government lawyer said that without the judge’s immediate intervention, the detainee could suffer significant adverse consequences, maybe even death.
Less than three hours later on that Nov. 19 morning, Chief U.S. District Judge Elizabeth A. Wolford signed an order authorizing the facility to use reasonable force to perform a medical examination, take vital signs, draw blood and provide hydration – and to use medical restraints if needed. She did not grant the request to force feed the detainee, Israel Negriel.
It turned out Negriel wasn’t as hungry as the government request made out.
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Sworn statements that he was refusing to eat were false, Wolford said in court on Dec. 20.
Four days before her November order, Negriel ate two slices of bread, two servings of peanut butter, potato chips, an apple, an orange drink and a Boost nutritional supplement, Wolford said she learned later. On Nov. 16, he consumed a “snack bag,” orange juice, a doughnut, an orange and two Boost nutritional supplements. The next day, he ate an orange, potato chips, a turkey sandwich and a Boost nutritional supplement. And the day before the government sought the emergency order, he ate chicken, an orange and two Boost nutritional supplements.
The government’s records show that in the days leading up to its request for the order, he was consistently consuming solid food and nutritional supplements, Wolford said in decision filed on Dec. 21.
“It goes without saying that it significantly frustrates the court’s ability to do justice when it cannot rely on the veracity of information supplied to it by government attorneys, who have a heightened ethical duty,” Wolford said in her ruling. “It also undermines the public’s confidence in the justice system.”
What’s more, although Negriel was represented by legal counsel for his immigration proceedings, the government did not inform either of his attorneys about the order, Wolford added.
In her decision Wednesday, the judge took steps to keep this from happening again.
From now on, before seeking an emergency order involving an immigration detainee on a hunger strike, the Office of the Principal Legal Advisor for Immigration and Customs Enforcement must determine whether the detainee is represented by counsel in immigration proceedings. If so, the lawyer’s name and contact information must be turned over to the assistant U.S. attorney requesting the emergency order, who, in turn, must provide that information to the court, Wolford said.
The judge ordered all attorneys under the supervision of ICE and the U.S. Attorney’s Office for the Western District of New York to read her Dec. 21 decision within two weeks.
Last Friday, Carol Bridge, chief counsel at the Office of the Principal Legal Advisor for ICE, confirmed to the court that each attorney under Bridge’s supervision read the court’s decision.
The judge did not find that any government attorney engaged in intentional misconduct.
But, she said it became clear to her, after hearing from the government lawyers at a hearing on Dec. 20 “that this entirely unacceptable occurrence was the result of insufficient lawyering by both the OPLA and the U.S. Attorney’s Office.”
The judge cited the drafting of legal documents by people untrained in the law, failing to carefully review documents before submitting them to court, overly relying on templates and acting on an emergency basis without adequate resources.
An attorney who represents Negriel called it “a case of inexperience and negligent sloppiness resulting in the deprivation of someone’s rights.”
“The reason why this was a massive disaster is because the government attorneys rushed this and did not do their homework,” Aaron J. Aisen, an attorney with the Erie County Bar Association’s Volunteer Lawyers Project. “The government had plenty of time to address this, and it chose to make this an emergency, even though its own records indicated it was not.
“In addition, they had no experience handling one of these,” Aisen said of the government lawyers. “The attorneys and non-attorneys who created these documents relied on templates from ICE headquarters in Washington and other sources. They basically just plugged in some information and went with it without the careful review that should go into the preparation of these types of documents. This led to the creation of sworn court documents that did not reflect the actual situation on the ground. I understand inexperience. But inexperience should lead to more thoughtful preparation, not less. And, as Judge Wolford noted in her decision, the United States government has a higher obligation to get it right. “
Aisen said the judge’s new order should help.
“It ensures the court can get appropriate counsel involved, and I sincerely hope ICE will be a lot more careful about making sure anything it files against a detainee in any court is true,” he said. “Because at the end of the day, ICE controls this entire process. I hope this experience will lead to changes in how ICE and the U.S. Attorney’s Office handles these types of situations going forward. As attorneys for the detainees, we are always available to help. All they have to do is pick up the phone.”
Seeking release from detention
Negriel, a 37-year-old native and citizen of Haiti, entered the Buffalo Federal Detention Facility in April 2021.
On Oct. 30, 2022, he missed his ninth consecutive meal and was classified as a hunger striker, according to court files.
Negriel told detention facility officials he went on his hunger strike because he wants to be released from custody. His pre-hunger strike weight was 180 pounds. On Nov. 18 he weighed 163 pounds, a loss of 17 pounds, according to the medical staff at the facility.
On Nov. 4, he fainted due to dehydration and was transported to Erie County Medical Center, where he received IV fluids and a blood work up was performed. Once he recovered, he was sent back to the detention facility. Staff members repeatedly tried to convince him to eat and drink, but he refused, according to the facility’s clinical director.
The facility’s clinical director, Dr. Carlos M. Quinones-Ortiz, said in a court filing that if he continued his hunger strike, he would reach a state of severe metabolic imbalance, risking permanent damage to his kidneys, liver and heart, and could die.
When filing the emergency motion for medical intervention, the U.S. Attorney’s Office relied on information it received from the detention facility, including what Quinones-Ortiz said about his condition, U.S. Attorney Trini E. Ross said.
“This case was presented to our office as a potential life or death situation late on Friday, Nov. 18, 2022,” Ross said.
The information included a sworn statement by a physician, received at approximately 4:20 p.m., who determined the detainee needed forced examination and hydration, she said.
The U.S. Attorney’s Office relied on the physician’s assessment, she said, with the understanding “that the detainee’s life may have been in jeopardy.”
So, an assistant U.S. attorney in Rochester applied for an emergency order early the next day, a Saturday morning.
“In situations like this, which possibly involve life and death, and which occur over a weekend when there is limited staff at the agency requesting the temporary restraining order, this office must rely on the information the agency provides,” Ross said.
The following Monday, the agency provided additional information that the detainee had consumed some food and drink during the time period cited in its request. Upon receipt of that information, the U.S. Attorney’s Office promptly notified the court, Ross said.
In a letter to the judge on that Monday, the U.S. Attorney’s Office said Negriel had been transferred to United Memorial Medical Center in Batavia on the previous Saturday, where he voluntarily underwent examination, checking of his vital signs, the drawing of blood and the provision of IV fluids. He did not eat on Sunday, but remained in medically stable condition.
Although Negriel had, in fact, consumed some food before Wolford’s order, the letter said the medical opinion of the facility’s clinical director remained unchanged, including the need for the involuntary examination, blood draw and hydration.
In another letter to the judge a couple of days later, the U.S. Attorney’s Office said the medical staff at the facility believed his nutritional intake remained inadequate, but noted that on Monday he consumed two oranges and a Boost nutritional drink, and the following Tuesday he ate a turkey sandwich, an apple and drank two cups of water.
The Nov. 23 update from the U.S. Attorney’s Office indicated that Negriel was found to be medically stable by Quinones-Ortiz.
In a Nov. 30 court filing, Quinones-Ortiz replied to the court’s request for him to explain why he had earlier indicated Negriel “is on day 19 of his hunger strike and has missed 62 meals” and “has consumed no water or food since he initiated his hunger strike.”
“I now understand that I needed to clarify that Mr. Negril had not been observed consuming any water or food since his hunger strike,” Quinones-Ortiz said in his reply filing.
On Nov. 17, the Immigration Health Service Corp staff recorded that Negriel consumed a snack bag and a Boost, but he was never observed by any staff member eating or drinking, nor did he self-report that he ate or drank, the doctor said in the filing.
He was presumed to have consumed the snack bag based on an observation that the bag was missing some of its contents and the Boost bottle was empty, the doctor said in the court filing.
Negril was never observed consuming any food or drink prior to the urgent request to the judge on Nov. 19, and since he also refused labs and vitals, the doctor was unable to verify whether he was receiving hydration or nutrition.
“We have recently implemented a policy requiring that staff must notate whether the detainee was observed consuming food or drink or whether it was presumed from an empty package or bottle,” Quinones-Ortiz said in the court filing.
The doctor also explained how the facility tracks hunger strikes. It tracks missed meals, not individual food or drink. The facility concludes a detainee is on a hunger strike after nine missed meals. An occasional piece of food or drink will not suffice to remove someone from hunger strike protocols, he said.