By Jennifer Doherty

Law360 (February 22, 2021, 11:04 PM EST) -- A Ninth Circuit panel is ordering mediation for U.S. Immigration and Customs Enforcement and a class of migrants who claimed they experienced perilous conditions in two California facilities during COVID-19, finding the situations there had evolved past the point where a ruling would be useful.

Addressing the government's appeals of orders issued early in the pandemic, the panel went as far as affirming that the courts were entitled to rule on both the issues raised by the migrants and the appeals Thursday, leaving the sides to work out the rest.

"Because the detention facility conditions challenged in this case have changed while these appeals have been pending, any ruling we enter concerning the conditions that existed in April and June 2020 will provide limited guidance to the parties," the panel said in its order.

ICE challenged a temporary restraining order and preliminary injunction regarding conditions in Yuba County Jail and Mesa Verde ICE Processing Facility as well as bail orders releasing members of the class from those facilities, saying the district court lacked the authority to make those decisions.

But the Ninth Circuit shot down that assertion.

"Contrary to the government's argument, district courts have authority to enter injunctive relief to remedy unconstitutional conditions of confinement, including overcrowding that poses health dangers, under certain circumstances," the panel said in its disposition memorandum.

The panel agreed with the district court's findings last spring that the migrants would likely succeed with their claims that the detention centers were overcrowded and lacked adequate health protocols, violating their constitutional rights.

More than 130 of those detainees have been released on bail since the start of their lawsuit, over the objections of ICE and its contractor, private prison company GEO Group Inc.

Those orders required ICE and GEO Group to take measures against the spread of the virus and update the court regularly on its efforts and how many people had tested positive at each facility.

In January, the district court found that ICE still could not be trusted to take reasonable precautions to protect migrants in its custody from COVID-19 without court supervision, even as a new outbreak stressed health infrastructure in Northern California.

However, the panel recognized that conditions have changed significantly at both facilities since last year's orders. As of Monday, Yuba County Jail held 14 immigration detainees, while Mesa Verde was down to 38, according to Bree Bernwanger, a senior immigrant justice attorney for the Lawyers' Committee for Civil Rights who represents the migrant class.

She applauded the panel's rejection of ICE's argument during a phone call with Law360 Monday.

"ICE took the position that even if the conditions in a facility violate people in custody's constitutional rights — in civil custody — that a court cannot order people released from civil custody to remedy that constitutional violation. That is an extreme position, and the Ninth Circuit rightly rejected it," she said.

Bernwanger also highlighted the former detainees' easy transition back into society as an argument against civil immigration detention as a policy.

"The fact that hundreds of people have been released from civil immigration custody to their homes, to their families where they're living safely in our communities without incident just goes to show how inhumane and unnecessary detention was in the first place," she continued.

Both sides told the panel they were willing to enter mediation during oral arguments earlier this month. A spokesperson for ICE and counsel for the migrants both declined comment on what they hoped to get out of the process.

The panel also directed both sides to discuss adding ICE and GEO Group's appeals of another preliminary injunction the district court issued in December to their mediation agenda.

U.S. Circuit Judges Marsha S. Berzon, Morgan B. Christen and Bridget S. Bade sat on the panel for the Ninth Circuit.

The detainees are represented by Martin Schenker, Timothy Cook and Francisco Unger of Cooley LLP, Amalia Wille and Judah Lakin of Lakin & Wille LLP, Angélica Salceda, William Freeman and Sean Riordan of the ACLU of Northern California, Jordan Wells, Emilou MacLean and Stephanie Padilla of the ACLU of Southern California, Bree Bernwanger and Hayden Rodarte of the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, and Genna Beier, Jennifer Friedman, Kelly Wells and Francisco Ugarte of the San Francisco Office of the Public Defender.

ICE is represented by Adrienne Zack, Shining Hsu, Shiwon Choe, Wendy Garbers, Sergio Sarkany and Jeffrey S. Robins of the U.S. Department of Justice's Civil Division.

GEO Group is represented by Royal Oakes, David Weinstein and Michael Newman of Hinshaw & Culbertson LLP, and Susan Coleman of Burke Williams & Sorensen LLP.

The cases are Zepeda Rivas et al. v. Jennings et al., case numbers 20-16276 and 20-16690 in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Adam LoBelia.

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