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In Victory for Detained Immigrants, Federal Judge Orders ICE to Review for Release Every Person with Covid-19 Risk Factors

In sweeping ruling, ICE ordered to conduct new assessments for every person at heightened risk of contracting Covid-19 in the custody of ICE, regardless of immigration case

RIVERSIDE, Calif. – A federal judge today ordered Immigration and Customs Enforcement (ICE) to promptly revisit custody determinations, including consideration of release for all persons in ICE detention whose age or health conditions place them at increased risk due to the Covid-19 pandemic. The order comes weeks after the Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Southern Poverty Law Center (SPLC), Orrick LLP and Willkie Farr and Gallagher LLP filed for an emergency preliminary injunction on March 25.

In his blistering rebuke of the government’s response to Covid-19 in detention centers, U.S. District Judge Jesus Bernal wrote, “As a result of these deficiencies, many of which persist more than a month into the COVID-19 pandemic, the Court concludes Defendants have likely exhibited callous indifference to the safety and wellbeing of the Subclass members [detained immigrants at risk]. The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.’”

Martín Muñoz, a plaintiff in the case stated, “I was always very worried for my health in ICE custody for the three years I was detained. When the pandemic arrived, I felt even worse; I was resigned that something bad was going to happen and I felt lost. ICE never responded to me, they never took steps to protect me. I am so happy the judge is forcing ICE to take steps to protect others.”

“We are pleased the Court recognized the imminent dangers facing persons in ICE detention whose disabilities place them at increased risk during this pandemic,” said Stuart Seaborn, Managing Director of Litigation for Disability Rights Advocates, “and we will continue to be vigilant to ensure persons with disabilities are provided necessary precautions.”

“Our clients have been living a nightmare, constantly terrified that they will become infected, knowing that ICE is doing little or nothing to prevent that,” said Timothy Fox, Co-Executive Director of the Civil Rights Education and Enforcement Center, “The court ruling today shows that it recognizes the potentially lethal threat that COVID-19 creates for our clients in ICE custody, and forces ICE to take immediate steps to reduce that threat, including release.”

“I feel so happy about this judge’s decision because I met so many people inside who were in really poor conditions and really need to be released,” said Mr. AJ Sanchez-Martinez, a recently released plaintiff of the case and preliminary injunction. “I used to tell people, ‘what you see in here from ICE is the worst of America.’ Now that I am out, I have it on my heart to continue to help the others still inside. Like when I was in detention, I used to help people with their motions and explain their cases to them,” continued Sanchez-Martinez. “Now, I can talk to people outside and they can know what’s really happening.”

The order comes amid an alarming spike in confirmed cases of Covid-19 inside detention centers. Recent numbers provided to Congress reveal that only 400 detained individuals have been tested for Covid-19, and of those, nearly one in three have tested positive. As the court noted, ICE exercises control over the size of its detention population as a whole, and thus determines one of the most important factors in the spread of disease: the density of the detained population.

Although the agency could immediately release thousands of individuals in its custody to preserve public health in the face of the pandemic, it has refused to do so. Officials stated Friday that ICE had released fewer than 700 medically vulnerable people. Today’s ruling opens the door to that relief to thousands of people.

“ICE acknowledged it has system-wide responsibility for the care of individuals in its custody, yet as the court correctly observed, its ‘piecemeal’ approach to Covid-19 prevention and management, inconsistent with CDC guidelines and best practices, has caused ‘turmoil, expense, and difficulty,’” said Lisa Graybill, Deputy Legal Director with the SPLC. “ICE had time to act, and it failed. Fortunately, the court has ordered ICE to do what it should have done long ago: take appropriate measures to reduce risk to medically vulnerable individuals, or free them.”

The preliminary injunction requested that ICE be required to promptly assess medically vulnerable people for COVID-19 risk factors and either immediately implement medically necessary precautions consistent with CDC standards of care, or release them. If ICE could not or would not take medically necessary precautions, the motion requested immediate release of the medically vulnerable. In his order, Judge Bernal ruled ICE must conduct new assessments of every individual at heightened risk of contracting Covid-19 under their custody and make a new release determination, regardless of whether or not the individual has already applied for parole, habeas, or other forms of relief.

“Given the speed with which COVID-19 is spreading, permitting ICE to delay these necessary reforms will place countless lives in danger. Allowing the status quo to endure is a recipe for a public health disaster,” read an amicus brief filed on behalf of 16 doctors and public health experts. “ICE has not—and cannot—take measures sufficient to blunt the spread of COVID-19 in ICE detention facilities,” continued the doctors. “The urgency for the Court to mandate these steps cannot be overstated.”

The preliminary injunction was requested as part of an existing class action lawsuit, Fraihat v. ICE, on behalf of the tens of thousands of people held in ICE facilities throughout ICE’s nationwide detention system. Last week, Judge Bernal denied the government’s motion to dismiss the lawsuit.  

“Immigrants have a strong network of loved ones and community organizations that are ready to help them post-release. Drawing on these networks of support and infrastructure already in place, immigrants can transition into communities in a manner that continues to serve the public interest,” read another amicus brief filed by seven nonprofit organizations.

Until now, ICE has consistently failed to provide even the most basic public health protections inside detention centers. Its failure to take preventative measures – like providing adequate soap and hand sanitizer – puts individuals with underlying conditions in imminent danger of infection and death. ICE protocols did not consider trying to identify high-risk individuals, much less take the significant steps necessary to reduce the risk of contagion, illness, serious complications and death.

Attorneys from the co-counseling organizations and firms are available for interviews.

The full order can be read here.