BREAKING: Judge Rules ICE has “exhibited callous indifference to the well being” of Immigrants in Detention

by Cindy Knoebel

by Cindy Knoebel

The numbers keep growing: on Friday, April 24, ICE reported 317 cases of COVID-19 among people in ICE custody, an increase of 110% since April 7.

But recent court rulings are starting to recognize the imminent danger faced by immigrants in detention as the pandemic continues to spread. Javier Hernandez, director of the Inland Coalition for Immigrant justice was recently quoted as saying, “What we’re seeing from judges is that they are prioritizing health over detention. It’s important, not just for those detained but for the folks who work there and their families and communities.”

In a stunning victory for immigrants in detention who are at risk of contracting the COVID-19 virus, on April 20th a US District Judge in Riverside, CA granted a preliminary injunction ordering ICE to immediately begin identifying people in detention with have underlying health conditions that could put them at higher risk if they contract coronavirus and consider releasing them. That injuction is part of a class action lawsuit, Fraihat v. ICE, which argues that tens of thousands of detained immigrants are being denied adequate health care and disability accommodations.

The judge, Jesus G. Bernal, wrote that ICE has “exhibited callous indifference to the well being” of the immigrants in detention and has ordered ICE to establish a process to*:

  1. Review all people in ICE custody to identify and track people with relevant Risk Factors within 10 days of the date the order was issued on April 20, 2020 or within five days of their detention (whichever is later);
  2. Undergo custody redeterminations for any detained people with Risk Factors. This means that they will review whether people with Risk Factors may be adequately protected from COVID-19 infection in detention or whether they must be released because ICE cannot adequately protect them based on their individual vulnerabilities;
  3. Update their internal protocol for responding to the pandemic to better protect people who remain in detention from COVID-19 infection;
  4. Ensure that the requirements of this order be implemented at every detention facility across the nation, regardless of whether the facility is operated directly by ICE, local authorities, or private companies that have contracted with ICE.

This order applies to all people in ICE detention who have risk factors that make them particularly vulnerable to COVID-19 infection, including people who are over the age of 55, are pregnant, or have health conditions or disabilities including heart disease, high blood pressue, respiratory diseases, diabetes, cancer, liver disease, kidney disease, autoimmune diseases, and severe psychiatric illness.

4/26 Update: Unfortunately, on the evening of 4/25 the Ninth Circuit granted a (brief) administrative stay of the district court’s order. That stay will remain in effect at least until Wednesday, while the Ninth Circuit considers whether to grant a stay for the duration of the appeal.

Then, on the evening of Wednesday, April 23, headlines started to appear about another court victory: a federal judge ruled that the Adelanto ICE Processing Center must dramatically reduce its population to enable social distancing. Approximately 1,300 immigrants are currently detained at the facility, one of the largest in the U.S.

The ruling resulted from a preliminary injunction request on April 14 filed by the American Civil Liberties Union Foundation of Southern California (ACLU SoCal) and the law firm Latham & Watkins LLP.

A press release by the ACLU SoCal states that ICE must reduce the facility's population in three ways:

  • Releasing selected detained persons with or without conditions of release.
  • Deporting selected detained persons who have final deportation orders and have exhausted all appeals.
  • Transferring selected detained persons to other detention facilities where they can maintain social distancing.

The court actions filed by the ACLU SoCal had pointed out that medical experts had concluded that immigration detention centers such as Adelanto were potential COVID-19 tinderboxes.

Among the conditions at the Adelanto, the release noted that:

  • Bunk beds are placed only 2½ to 3 feet apart.
  • Cells as small as 8x10 feet are populated by four to eight people.
  • Sinks, toilets, counters, and showers are shared, with no disinfectant cleaner available for after use.
  • Showers are placed less than six feet apart.
  • Food preparation and service is communal, with six to ten people eating at the same table.

“Holding people in civil immigration detention in the midst of the COVID-19 pandemic without taking basic steps to protect them from infection from this deadly virus from is, as the court found ‘inconsistent with contemporary standards of human decency,’” ACLU SoCal Senior Attorney Jessica Bansal said in the release. “We are relieved that people detained at Adelanto will now receive the protections for their lives and health that every human being deserves.”

The judge ruled that the reductions in the center’s population must start by April 27th and be completed by May 4.

The ACLU continues to be on the forefront of legal action against ICE. On April 21, the ACLU's San Diego (ACLUF-SDIC) chapter filed a lawsuit to demand a drastic reduction in the number of immigrants held at the Otay Mesa Detention Center and also seeks an emergency temporary restraining order demanding the immediate release of all Otay Mesa detainees over the age of 45 and people with underlying medical conditions, due to a heightened risk of coronavirus-related illness or death. In its press release, Monica Y. Langarica, immigrants' rights staff attorney at ACLUF-SDIC says that "ICE is knowingly jeopardizing the lives of people in its custody by refusing to take action to mitigate the outbreak of COVID-19 at Otay Mesa and prevent the introduction of the virus at Imperial. ICE’s disregard for public health recommendations threatens community safety and risks collapsing surrounding healthcare systems.”

*From a summary factsheet developed by the Southern Poverty Law Center