Disability Rights Advocates, the Southern Poverty Law Center, the Civil Rights Education and Enforcement Center, and the law firm Orrick, Herrington & Sutcliffe LLP requested emergency action from the court as part of ongoing immigration detention litigation in Fraihat v. ICE – a class action lawsuit initiated in 2019. In this March 2020 memorandum supporting their motion for a preliminary injunction, the parties requested the court to order ICE to significantly improve its response to COVID-19, either by taking swift action to protect those detained in its custody facing increased risk during the pandemic or by releasing them.
The parties asked the court to recognize a subclass within the larger class of detained migrants in the class action, the subclass ICE had failed most egregiously in the public health crisis — those most likely to face serious illness or death if they contracted COVID-19. With this motion, plaintiffs defined this subclass as people with risk factors identified by public health experts: being pregnant, being over age 55; living with one or more chronic health conditions such as HIV, liver disease, cardiovascular disease, chronic respiratory disease, diabetes, cancer, or severe psychiatric illness.
This motion was successful. The court granted it and ordered ICE to implement social distancing by modifying practices or by releasing people at high risk where distancing could not be enforced. The motion is therefore useful for advocates representing people who are incarcerated during the current public health crisis, not just in immigration detention but also in jails, prisons, or psychiatric institutions. The motion describes the inadequacy of ICE’s response to the pandemic by outlining current practices at detention facilities in several Southern states as well as in Colorado and California. It argues that detained migrants’ rights were violated by the failure to ensure safe conditions. On page 11, or page 18 in the PDF pagination, the motion describes all the necessary actions ICE failed to take by citing declarations providing anecdotes from the various facilities. Wherever the conditions described here are similar to those in prisons, jails, or state psychiatric institutions (e.g., hand sanitizer is not being provided), similar arguments can be made on behalf of criminal defendants who, under the law, are entitled to more protections than non-citizens.