By Hailey Konnath

Law360 (October 8, 2020, 8:23 PM EDT) -- A California federal judge on Wednesday tore into U.S. Immigration and Customs Enforcement for its "spotty compliance" with a COVID-19 safety order he issued in April, noting that the agency has failed to release a number of high-risk immigrant detainees from its detention centers during the deadly pandemic. 

The group of detainees sued ICE in August over allegedly inadequate medical, mental health and disability accommodations. In April, U.S. District Judge Jesus G. Bernal certified two subclasses of high-risk detainees and ordered the agency to promptly evaluate and potentially release thousands of immigrant detainees who are at a higher risk of contracting the virus or dying from it. At the time, the judge blasted the agency for its "callous indifference for the safety and well-being" of its more vulnerable detainees.

The injunction also required the government to define the minimum acceptable detention conditions for detainees with defined risk factors and to monitor and enforce facility-wide compliance with those standards.

Since that order was issued, the virus has continued to ravage detention centers, infecting hundreds of detainees, Judge Bernal noted in Wednesday's minute order. Meanwhile, ICE continues to arrest, detain and depart large numbers of noncitizens, including those who are high risk, the judge said.

Now the pandemic is accelerating, and ICE's actions thus far "fall far short of compliance with the preliminary injunction," the judge said. Judge Bernal granted the detainees' motion to enforce the injunction and slammed the agency for failing to comply, saying that failure warranted a modified and clarified preliminary injunction. Notably, the judge instructed the agency to make more timely custody determinations for detainees with risk factors, clarifying that "blanket or cursory denials [of release] do not comply with the preliminary injunction."

"Only in rare cases should a subclass member not subject to mandatory detention remain detained," Judge Bernal said.

He also ordered ICE to mandate more widespread and regular testing of the detainees and to develop minimum care and hospitalization protocols for detainees who test positive. And the agency must establish that medical isolation and quarantine are distinct from solitary, segregated or punitive housing, Judge Bernal said, adding that extended lockdowns as a means of COVID-19 prevention "are not allowed." Access to books, television, telephones and recreational activities must be maintained to the fullest extent possible, he said.

In particular, Judge Bernal said he was "dismayed" that more than five months after the injunction was issued, ICE still hasn't issued a performance standard to address the "substantial risk of death" to the detainees during the pandemic. The agency's "weak" monitoring of facility-wide compliance is also "perplexing," he said.

The agency still allows facilities to self-report their levels of compliance, relying on a "meager survey," according to the order.

"Defendants have made strides identifying subclass members, but the court is gravely concerned that … custody decisions are a disorganized patchwork of non-responses or perfunctory denials," Judge Bernal said.

He added that he is especially distressed that about 70% of the detained subclass members aren't subject to mandatory detention, yet haven't been released.

Southern Poverty Law Center attorney Veronica Salama, who is representing the detainees, said in a statement Thursday that ICE had "ample time" to fulfill its obligation to release people.

"ICE's failure to release people from detention bears responsibility for over 6,000 positive cases and the loss of eight individuals who should be alive and free today," she said. "This disaster is a result of ICE's deliberate indifference to the humanity of the immigrants they choose to detain."

Salama added that while Wednesday's order is a win, "we must ground ourselves in the abhorrent reality that people on the inside continue to face."

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.

In April, Judge Bernal declined to toss the suit and instead certified two subclasses of high-risk detainees. In the judge's order issuing the preliminary injunction, he said the evidence suggests "systemwide inaction that goes beyond a mere 'difference of medical opinion or negligence.'"

Pilar Gonzalez Morales, a senior attorney at the Civil Rights Education and Enforcement Center, said in Thursday's statement that the order shows that ICE has "essentially ignored the court for nearly six months."

"ICE's actions are not just a blatant disregard for the court but have needlessly endangered the life of thousands of immigrants in its custody," said Morales, who is also representing the detainees. "We are pleased that the court has clarified the need for widespread and regular testing, halted unnecessary transfers, and prohibited ICE from using harmful isolation practices."

An ICE representative didn't immediately return a request for comment Thursday.

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, Rosa Lee V. Bichell and Melissa Riess of Disability Rights Advocates; William Alderman, Mark Mermelstein and Jack Routhier of Orrick Herrington & Sutcliffe LLP; Michael Johnson, Jessica Blanton, Joseph Bretschneider, Leigh Coutoumanos and Timothy Ryan of Willkie Farr & Gallagher LLP; Lisa Graybill of the National Immigrant Law Center; Christina Brandt-Young of the Disability Rights Advocates and Benjamin Salk and Veronica Salama 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, Nicole N. Murley, Hans H. Chen, Hayden Windrow, 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 Kelly Duncan.

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