9th Circ. Says ICE Failed To Protect Detainees From COVID-19

By Hailey Konnath
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Law360 (October 13, 2020, 9:59 PM EDT) -- The Ninth Circuit on Tuesday slammed U.S. Immigration and Customs Enforcement for failing to provide safe conditions for detainees packed into a California detention center, ruling that a federal court acted within its authority when it directed the government to reduce the center's population.

However, the three-judge panel noted that the circumstances have "changed dramatically" since a California federal court issued the preliminary injunction in April, ordering the court to reconsider the specific measures included in the injunction on remand.

Individuals detained at the Adelanto ICE detention center sued in April, claiming that their confinement there is a "death sentence." Later that month, the district court provisionally certified a class of 1,300 individuals at the facility and ordered the federal government to reduce the center's population by 100 before April 27, and by another 150 three days after that deadline.

On appeal, ICE argued that the district court doesn't have the authority to order reductions in the number of detainees held at a facility.

But the appellate panel on Tuesday sided with the detainees, rejecting that argument and noting that the center had more than 60 confirmed COVID-19 cases as of Sept. 22. Twenty of the detainees with COVID-19 were in high-risk groups and nine have been hospitalized, the panel said.

The detainees have claimed that the packed facility is dirty, lacks cleaning supplies, social distancing, quarantining of new arrivals and other safety protocols, and the government hasn't shown those claims to be clearly erroneous, the Ninth Circuit said.

"[W]e agree with the district court that the conditions at Adelanto in April violated the detainees' due process right to reasonable safety," the panel said. It added that at the time that the preliminary injunction was issued in April, Adelanto was "so crowded that social distancing to combat the spread of the novel coronavirus was impossible."

Detainees had inadequate access to masks, guards weren't required to wear masks, there wasn't enough soap or hand sanitizer to go around and detainees had to clean the facility themselves with dirty towels and dirty water, the panel said.

"The government was aware of the risks these conditions posed, especially in light of high-profile outbreaks at other carceral facilities that had already occurred at the time, and yet had not remedied the conditions," the Ninth Circuit panel said.

The district court correctly found that the detainees were likely to prevail on the merits of their case and that they were likely to suffer irreparable harm without the injunction, the panel said.

But since the order came down in April, the facility's population has dropped from 1,370 to 748, according to the panel.

"More pressingly — and despite the reduced population level — the facility is experiencing a COVID-19 outbreak, which was not the case when the preliminary injunction issued."

Unlike the Ninth Circuit, the California federal court has been continually apprised of developments at the facility and is better situated to determine how to proceed, according to the opinion.

"We therefore decline to speculate about which provisions of the preliminary injunction should still apply," the panel said.

U.S. Circuit Judge Eric D. Miller concurred, writing that he disagreed that the government likely failed to meet its constitutional duty to provide safe conditions to the detainees.

"The injunction we review today was issued based on the record before the district court in April," Judge Miller said. "Perhaps the plaintiffs were likely to establish a constitutional violation on that record, or perhaps not, but at this point the question is academic."

The judge emphasized that, on remand, the district court must make its decision on a new record and said he agreed with the majority's direction to "avoid imposing provisions that micromanage the government's administration of conditions at Adelanto."

ICE declined to comment on Tuesday, though a spokesperson noted that Adelanto has a total capacity of 2,084 and is currently operating at roughly 35% of that capacity. ICE spends $260 million annually on health care for detainees, and "comprehensive medical care is provided from the moment detainees arrive and throughout the entirety of their stay," the spokesperson said. 

The detainees filed suit on April 13, saying the agency was risking their lives by refusing to alter the conditions in which they're kept in the face of the coronavirus pandemic. Many of the individuals being held at the facility don't have criminal records, according to the suit.

At the Adelanto facility, four to eight people are forced to sleep in cells as small as 8 by 10 feet, and showers are so crowded that a person in one shower stall can reach out and press the neighboring shower's button, the detainees said.

The detained individuals are also responsible for cleaning the facility's common spaces and shared items, for which they're given limited cleaning supplies, according to the complaint.

On April 23, U.S. District Judge Terry J. Hatter Jr. said the center's population should be reduced by releasing detainees, carrying out final deportation orders that have already been issued or transferring individuals to other facilities where they can maintain a safe distance.

Judge Hatter specified he would maintain jurisdiction over all class members, regardless of where they wind up. The class includes all individuals currently at the Adelanto facility and those who were detained there at any time between March 23 and when the order came out.

If the federal government breaks with any section of the order, Judge Hatter said he would consider mandating the immediate release of all Adelanto detainees.

That order was paused a few days later when the case landed in the Ninth Circuit.

Constitutional law professors and public health professionals weighed in on the detainees' behalf, saying their risk of contracting COVID-19 increases each day they're in the facility.

"ICE cannot lawfully seize people, subject them to a substantial risk of exposure to the coronavirus, deny them any ability to protect themselves, and then disclaim responsibility for their fate," the experts said. "Yet that is exactly what has happened at Adelanto Detention Center."

The Ninth Circuit also issued an unpublished version of Tuesday's decision in September, "[i]n light of the urgency of the situation described in the emergency motion," it said on Tuesday.

Counsel for the detainees didn't immediately respond to a request for comment.

U.S. Circuit Judges Paul J. Watford, Michelle T. Friedland and Eric D. Miller sat on the panel for the Ninth Circuit.

The detainees are represented by Samir Deger-Sen, William M. Friedman, Margaret A. Upshaw, James Tomberlin, Amanda Barnett and Jessie Cammack of Latham & Watkins LLP and Ahilan Arulanantham, Michael Kaufman, Jessica Karp Bansal and Michelle Cho of the ACLU Foundation of Southern California.

The government is represented by Victor M. Mercado-Santana and Hans H. Chen of the U.S. Department of Justice's Civil Division, and Scott G. Stewart and Jeffrey S. Robins of the DOJ's Office of Immigration Litigation.

The case is Kelvin Hernandez Roman et al. v. Chad F. Wolf et al., case number 20-55436, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Alyssa Aquino. Editing by Nicole Bleier.

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

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