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9th Circuit ends court oversight of COVID policies at ICE detention facilities

Calling a nationwide injunction on ICE’s COVID-19 response “sweeping” and unwarranted, a divided Ninth Circuit Court of Appeals panel on Wednesday ended requirements for ICE to adopt policies to protect vulnerable immigrants from COVID-19 at 250 U.S. detention centers.

The three-judge panel found a federal judge in Riverside, California, improperly granted a preliminary injunction in April 2020 that forced Immigration and Customs Enforcement to adopt COVID-19 safeguards for all of its detention centers.

Writing for the majority, U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, said ICE’s pandemic response policies may have been flawed, but they were not so lacking as to warrant extraordinary court oversight of the entire agency’s COVID-19 protocols and guidelines.

“Like many aspects of government that were potentially unprepared for a highly contagious airborne virus, ICE’s initial response to the COVID-19 pandemic may have been imperfect, even at times inadequate,” Bress wrote in a 78-page opinion. “But the slew of national guidance, directives, and mandatory requirements that the agency issued and then frequently updated in the spring of 2020 belies the notion that ICE acted with the ‘reckless disregard’ necessary to support a finding of unconstitutional, system-wide deliberate indifference.”

U.S. District Judge Jesus Bernal, a Barack Obama appointee, issued the injunction in April 2020 after finding ICE’s COVID-19 policies fell short of guidelines recommended by the U.S. Centers for Disease Control and Prevention.

Bernal found ICE was slow to issue nationwide directives on preventing the spread of COVID-19 and that it failed to issue adequate guidelines on social distancing and releasing detainees at a high risk of dying or developing severe illness from the virus, among other deficiencies identified.

The judge ordered ICE to identify and track detainees with certain COVID-19 risk factors, to adopt comprehensive standards on social distancing, mask wearing and cleaning policies, and to start considering certain medically vulnerable detainees for release from custody.

Joined by U.S. Circuit Judge Eric D. Miller, also a Trump appointee, Bress disagreed with many of Bernal’s findings on the adequacy of ICE’s pandemic response. He also noted a preliminary injunction is an “extraordinary remedy” and that plaintiffs must meet an exceptionally high standard to obtain such relief.

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“Neither the facts nor the law supported a judicial intervention of that magnitude,” Bress wrote. “The standards that governed plaintiffs’ request reflected not only the all-embracing relief they sought but the core principle, grounded in the separation of powers, that far-reaching intrusion into matters initially committed to a coordinate Branch requires a commensurately high showing sufficient to warrant such a significant exercise of judicial power.”

In a 31-page dissent, U.S. Circuit Judge Marsha Berzon stated that her colleagues applied the “incorrect standards” in reaching their conclusion that an injunction was unwarranted. The Bill Clinton appointee accused the majority of mischaracterizing the court order as “sweeping” and “far-reaching” when it was "actually limited, modest, and deferential to the government’s primary role in crafting policy and administering the detention facilities that house immigration detainees.”

Berzon wrote that the injunction identified specific areas that needed to be addressed — such as identifying high-risk detainees and making timely determinations on whether they should be released from custody — but allowed ICE to develop the specific policies and procedures.

She argued her colleagues ought to look closely at what was actually occurring in April 2020 when the injunction was issued. At that time, ICE did little to carry out its broad COVID-19 directives and the coronavirus spread rapidly among medically vulnerable detainees, she wrote.

“Because the district court appropriately concluded that an injunction was needed to safeguard the health of both detainees and the communities surrounding detention centers, its issuance of a preliminary injunction was in the public interest,” Berzon wrote.

The majority noted that ICE had released 693 medically vulnerable detainees before the injunction was issued. But Berzon said that given that ICE had more than 30,000 people in custody, the release of 693 was not a proper measure of whether the agency was doing enough to consider releasing all people at risk of death or severe illness.

“Contrary to the majority’s suggestion, the district court’s remedy does not place all federal detention facilities under its control nor purport to set policy,” Berzon wrote. “The injunction directs ICE to craft, implement, and enforce its own policies, adequate to meet the needs of the medically vulnerable members of the plaintiff subclasses.”

Plaintiffs’ attorney Elizabeth Jordan of the Civil Rights Education and Enforcement Center said her clients and their legal team were still reviewing the ruling and evaluating their next steps.

“We fully agree with Judge Berzon’s dissent and we’re considering our options for further review,” Jordan said in a brief phone interview.

An ICE spokesperson declined to comment on the ruling.

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CBP

Young unaccompanied migrants at the U.S. Customs and Border Protection facility, the main detention center for unaccompanied children in the Rio Grande Valley, in Donna, Texas on February 25, 2021.