The Ninth Circuit Court of Appeals struck down on Oct. 20 a preliminary injunction that protected COVID-19 vulnerable immigrant detainees. The injunction, from April 2020, stemmed from a suit that included three Adelanto detainees and one Rancho Cucamonga nonprofit.
The preliminary injunction created a subclass of Immigration and Customs Enforcement detainees who were vulnerable to COVID-19, and ordered ICE to track members of the subclass, define minimum acceptable detention conditions for them, reduce their risk of infection and make “timely custody determinations” for them.
Faour Abdallah Fraihat, Thomas Ragland and Martin Munoz, all then detained at the Adelanto ICE Processing Center, and the Inland Coalition for Immigrant Justice, headquartered in Rancho Cucamonga, were among the plaintiffs. Jesus Bernal, Central District of California judge, wrote the injunction.
A split decision by the Ninth Circuit Court of Appeals, with the majority opinion written by Judge Daniel Bress, ruled that the plaintiffs did not show a likelihood of success in their case, a prerequisite for preliminary injunctions.
The district court ruled the plaintiffs were likely to win on three claims: medical indifference in violation of the Fifth Amendment; punitive conditions of confinement in violation of the Fifth Amendment; and denying people with disabilities the benefits of Executive Agency programs and activities in violation of Section 504 of the Rehabilitation Act, because detainees who die from COVID-19 cannot participate in ICE’s removal process, the injunction reads.
The majority argued that the injunction “challenged ICE’s nationwide COVID-19 directives, forcing a strict review. ICE’s multiple guidance documents aimed at reducing the risk of COVID-19 infections prior to the preliminary injunction, and one specific document that advised its agents to reassess the custody of some medically vulnerable detainees, were proof that the agency did not operate with medical indifference or with punitive conditions, the majority said.
“Participation in the removal process” is not a benefit, and if it were, plaintiffs did not lose their ability to participate in their proceedings, the majority said.
The minority opinion, written by Judge Marsha Berzon, argued that the preliminary injunction only directed ICE directives, and should be set aside only if the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact, guidance from Doe vs. Kelly, 878 F.3d 710, 719 (Ninth Circuit, 2017). Berzon wrote that ICE’s guidance referenced by the majority was irrelevant because it affected all inmates, not the subclass of vulnerable inmates, and the document that advised custody reassessment for the COVID-19 vulnerable was ineffective and optional to follow.
Ragland, a 63-year-old detainee at the Adelanto ICE Processing Center, told his lawyer in March 2020 that he was confined with about 80 detainees. Fraihat, 58, who has asthma and was also detained in Adelanto, said in March 2020 that he had not received any information about COVID-19 from ICE or Adelanto staff, that soap wasn’t easy to access and that older individuals are cohorted in a unit that shares a door with detainees with COVID-19 symptoms. Fraihat has since been released.
At the time of the injunction, ICE reported no confirmed COVID-19 cases at Adelanto, that detainees are screened for disabilities at admission, and that Adelanto identified detainees at greater risk for contracting COVID-19.
Read more about the cases:
The appellate case: EDCV 19-1546 JGB (SHKx)
The original case: EDCV 19-1546 JGB (SHKx)
