ICE Ordered To Consider Releasing High-Risk Detainees

By Hailey Konnath
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Law360 (April 20, 2020, 11:44 PM EDT) -- A California federal judge on Monday ordered U.S. Immigration and Customs Enforcement to promptly evaluate and potentially release thousands of immigrant detainees who are at a higher risk of contracting COVID-19 or dying from it, blasting the agency for its "callous indifference for the safety and well-being" of its more vulnerable detainees.

In the 39-page minute order, U.S. District Judge Jesus G. Bernal sided with detainees suing ICE over allegedly inadequate medical, mental health and disability accommodations, certifying two subclasses of high-risk detainees and issuing a preliminary injunction that requires ICE to "make timely custody determinations" regarding those detainees, in particular those who are older or pregnant.

Within 10 days of the order — or within five days of any future detentions — ICE must identify and track any detainees at its facilities across the country who are at higher risk of infection or complications, per the judge. Judge Bernal said the deficiencies at ICE's detention centers have persisted more than a month into the pandemic.

"The evidence suggests systemwide inaction that goes beyond a mere 'difference of medical opinion or negligence,'" he said.

Judge Bernal said even in the early days of the pandemic, courts didn't hesitate in finding "irreparable harm" as a result of potential COVID-19 exposure in prisons and detention centers. And ICE doesn't deny that about 15% of individuals vulnerable to COVID-19 "will die if they are infected or that more will suffer lasting consequences," Judge Bernal said.

"Defendants also fail to respond to plaintiffs' evidence that detained populations tend to have worse health outcomes than the population as a whole," the judge added.

Martin Munoz, a former detainee and plaintiff in the suit, said in a statement Monday that he was always worried for his health while in custody and the pandemic only ushered in more fear.

"ICE never responded to me, they never took steps to protect me," Munoz said. "I am so happy the judge is forcing ICE to take steps to protect others."

Agency policy prohibits ICE from commenting on litigation. However, a spokesperson told Law360 on Monday that ICE is taking "all necessary precautionary measures to ensure detainees are screened medically upon their arrival to our facilities."

ICE's Enforcement and Removal Operations has limited the intake of new detainees during the pandemic, and the agency has identified more than 160 individuals to be released, the spokesperson said. The agency has comprehensive protocols for protecting staff and detainees in accordance with Centers for Disease Control and Prevention guidelines, he said.

"ICE makes custody determinations on a case-by-case basis prioritizing detention for those serious criminal offenders and other aliens who pose a significant threat to public safety," the spokesperson said.

The detainees filed their proposed class action in August, accusing ICE of shirking its legal obligation to provide adequate accommodations at 158 detention facilities nationwide.

According to the suit, ICE has contracted out the operation of the vast majority of its detention centers to private prison companies, like the GEO Group Inc., while failing to conduct necessary oversight to ensure the centers meet standards of confinement mandated by federal law and the U.S. Constitution. They said the detention centers pose an imminent risk to their health and subject detainees with disabilities to discriminatory treatment in violation of the Rehabilitation Act.

The named plaintiffs are 15 detainees with a range of medical conditions, including diabetes, cerebral palsy, chronic pain, hypertension, bipolar disorder and schizophrenia. They're looking to represent an estimated class of 55,000 immigrants in detention around the country.

The plaintiffs argued that the government has chosen to keep thousands of immigrants in grievous conditions in violation of their Fifth Amendment due process rights, despite often having the option of releasing them or enrolling them in programs that are alternatives to detention. Many of the immigrants in detention do not have criminal records and are seeking asylum, meaning ICE could release them on parole while they await their immigration court hearings, per the suit.

Last week, Judge Bernal denied the government's motion to dismiss the suit, according to the case docket.

The detainees said in Monday's statement that detention centers are seeing a spike in confirmed cases of COVID-19. And ICE has thus far tested only 400 of its detainees, they said. As of Friday, ICE had released fewer than 700 medically vulnerable people, the plaintiffs said.

Lisa Graybill, counsel for the detainees, said in the statement that ICE has acknowledged it has a responsibility for the care of the individuals in its custody, yet its approach to coronavirus prevention and management has been inconsistent with CDC guidelines.

"ICE had time to act, and it failed," she said. "Fortunately, the court has ordered ICE to do what it should have done long ago: take appropriate measures to reduce risk to medically vulnerable individuals or free them."

The detainees are represented by Timothy Fox, Maria del Pilar Gonzalez Morales and Elizabeth Jordan of the Civil Rights Education and Enforcement Center; Stuart Seaborn and Melissa Riess of Disability Rights Advocates; William Alderman, Mark Mermelstein and Jack Routhier of Orrick Herrington & Sutcliffe LLP; Michael Johnson, Dania Bardavid, Jessica Blanton, Joseph Bretschneider, Leigh Coutoumanos and Timothy Ryan of Willkie Farr & Gallagher LLP; and Lisa Graybill, Jared Davidson, Maria Fleischman, Shalini Goel Agarwal and Elissa Johnson of the Southern Poverty Law Center.

The government is represented by Joseph H. Hunt of the U.S. Department of Justice's Civil Division, and William C. Peachey, Jeffrey S. Robins, Lindsay M. Vick and Anna L. Dichter of the DOJ's Office of Immigration Litigation.

The case is Faour Fraihat et al. v. U.S. Immigration and Customs Enforcement et al., case number 5:19-cv-01546, in the U.S. District Court for the Central District of California.

--Additional reporting by Nicole Narea. Editing by Breda Lund.

Update: This story has been updated to include additional counsel for the detainees.

For a reprint of this article, please contact reprints@law360.com.

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