On April 20, 2020 a federal district court ordered Immigration and Customs Enforcement (ICE) to reassess the appropriateness of detention for all migrants nationwide at increased risk during the COVID-19 pandemic. ICE was ordered to swiftly identify those in its custody at greater risk due to health conditions or age and release them if their well-being could not be protected in the crowded detention centers that ICE administers. The court issued the order in response to a motion for preliminary injunction filed as part of the ongoing lawsuit Fraihat v. ICE, a class action brought by detained migrants represented by Disability Rights Advocates, the Civil Rights Education and Enforcement Center (CREEC), Southern Policy Law Center, and partnering law firms.
On June 24, 2020 these parties filed a motion to enforce the court’s April 20th order, alleging that ICE had failed to reassess custody determinations in good faith, even as the COVID-19 pandemic escalated in the intervening months.
In its April order, the United States District Court for the Central District of California found it intolerable that, over a month into the COVID-19 pandemic in the United States, ICE had failed to undertake appropriate measures on its own to address population density in its facilities. Acknowledging that density is one of the most important factors influencing the spread of COVID-19 both in the community at large and in detention settings, the court used strong words of condemnation: Judge Jesus Bernal found that through its “systemwide inaction,” ICE had “exhibited callous indifference” towards migrants who face severe illness or death due to the rapid spread of COVID-19.
Since ICE had failed to respond adequately to the pandemic, the court ordered a systematic review of all detentions of those over age 55, pregnant, and/or living with one or more chronic health conditions, including HIV. Importantly, ICE was ordered to assess whether further detention was warranted for anyone in these at-risk groups, regardless of whether an individual had any request for legal relief already pending.
This ruling came following documented evidence that COVID-19 was already widespread among migrant detainees: While testing had been extremely limited in facilities nationwide, nearly one third of those tested were positive for COVID-19.(1) With healthcare that was already limited behind bars, the current pandemic poses a significant threat to all people in immigration detention centers, similar to the threat posed in correctional facilities. Judge Bernal recognized the danger and ordered ICE to take much more significant action than it endeavored to take prior to legal intervention.
The preliminary ruling in this case is instructive for clients and advocates across the country who are concerned about conditions of confinement, how they affect health outcomes, and how these deficiencies are exacerbated during a public health crisis such as the COVID-19 pandemic. That a federal court ordered the release of recent migrants, who enjoy few of the rights guaranteed to permanent residents and US citizens, speaks strongly to the potential for similar legal actions regarding conditions of confinement in jails, prisons, and state psychiatric institutions. This ruling is especially useful for its findings regarding facilities’ responsibilities under the federal Rehabilitation Act of 1973 as they relate to detained people living with disabilities, including chronic health conditions such as HIV.
1. CREEC, In Victory for Detained Immigrants, Federal Judge Orders ICE to Review for Release Every Person with COVID-19 Risk Factors, April 20, 2020, available at creeclaw.org/in-victory-for-detained-immigrants-federal-judge-orders-ice-to-review-for-release-every-person-with-covid-19-risk-factors/