By Jeannie O'Sullivan

Law360 (April 22, 2020, 5:51 PM EDT) -- U.S. Immigration and Customs Enforcement can pursue its challenge of a district court's order to release 20 immigrant detainees from two Pennsylvania prisons due to COVID-19 fears, the Third Circuit ruled Tuesday in a precedential finding that the lower court's order was appealable.

The appeals court reasoned that while temporary restraining orders typically constitute nonappealable actions since they usually aim to preserve the status quo, the "unusual circumstances" created by the pandemic thrust this order into new territory because it granted affirmative relief. As a result, the judges concluded, the appeals court has jurisdiction over the challenge brought by ICE and the prisons' wardens.

"By directing the release of the twenty petitioners on their own recognizance, the district court ordered mandatory, affirmative relief — indeed, the ultimate relief sought by the petitioners in their underlying habeas petition. The grant of affirmative relief is a strong indicator that the district court's orders are immediately appealable under § 1292(a)(1)," the opinion said, referring to the section of the U.S. Code for interlocutory appeals.

The Third Circuit further considered the possibility that the detainees' release could result in "serious and potentially irreversible consequences." The opinion noted the government's contention that many of them are flight risks, dangers to the community given their individual criminal histories, and subject to mandatory detention under federal rules regarding the arrest, detention and release of immigrants.

Also, there is no guarantee the order can comply with the 14-day time limit for temporary restraining orders since the release is effective until the coronavirus state of emergency is lifted, which indicates "infinite duration," according to the Third Circuit. The order likewise failed to contemplate the possibility of retention or the practical difficulties involved in finding and re-detaining the detainees should that become necessary.

"A delayed appeal would increase the prospect that the effects of the district court's order will last beyond the purported expiration of the TRO and, indeed, may potentially yield consequences that cannot be undone," the opinion said.

Having established that the Third Circuit can hear the appeal, the panel said it would consider its merits once the parties had the opportunity to submit briefs.

The detainees, who were lodged in York County Prison and Pike County Correctional Facility, filed their habeas corpus petition on April 3. They claimed that incarceration during the pandemic put them at "imminent risk" of serious injury and death due to various underlying health conditions and moved for a temporary restraining order directing their immediate release.

Without waiting for a response from the government, U.S. District Judge John E. Jones III granted the temporary restraining order April 7 after concluding that the detainees would face irreparable harm absent the order and that the government would face "very little potential" harm if the prisoners were released.

The wardens and ICE moved for reconsideration, after which the court stayed the temporary restraining order and directed the detainees to respond. The court ultimately denied the reconsideration, ruling on April 10 that the government didn't "demonstrate a change in controlling law, provide previously unavailable evidence, or show a clear error of law or the need to prevent manifest injustice."

Representatives for the parties didn't immediately respond to requests for comment.

The detainees are represented by Carla G. Graff, Kelly A. Krellner, Thomas J. Miller and Will W. Sachse of Dechert LLP, Vanessa Stine and Muneeba S. Talukder of the American Civil Liberties Union of Pennsylvania and Witold J. Walczak of the American Civil Liberties Union.

The government is represented by Richard Euliss and Harlan W. Glasser of the U.S. Attorney's Office for the Middle District of Pennsylvania and Jeffrey S. Robins of the U.S. Department of Justice's Office of Immigration Litigation.

The case is Aaron Hope et al. v. Warden York County Prison et al., case number 20-1784, in the U.S. Court of Appeals for the Third Circuit.

--Editing by Jack Karp.

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