Federal judge orders ICE to consider releasing detainees most threatened by COVID-19
© WikiMedia (U.S. Customs and Border Control)
Federal judge orders ICE to consider releasing detainees most threatened by COVID-19

A federal district court judge on Monday issued a preliminary injunction ordering Immigration and Customs Enforcement (ICE) to improve its measures for protecting the health of detainees in the agency’s facilities and consider releasing those most at risk of contracting COVID-19.

Numerous individual detainees and two advocacy organizations have sued ICE, arguing that its relative inaction in the face of the COVID-19 pandemic and the conditions in its facilities violate the constitutional rights of those in detention. The judge found that the plaintiffs were likely to succeed on each of their claims and, given the likelihood of serious harm to their health as the case proceeds, ordered ICE to take steps to remedy the situation in the meantime. Among other steps, the agency must now “identify and track” all detainees with a set of risk factors that includes being over the age of 55, pregnant, or having one of a host of chronic health conditions. ICE must then timely resolve those individuals’ detention statuses and consider releasing them until their court dates to protect their health and the health of the public.

“Stated in general terms,” wrote Judge Jesus Bernal of the Central District of California, “the common question driving this case is whether Defendants’ system-wide response—or the lack of one—to COVID-19 violates Plaintiffs’ rights.” And on each of a series of allegations by the plaintiffs, Bernal concluded they were likely to win and likely to suffer irreparable harm without an injunction now. “From March 11, 2020, when the pandemic was declared by the World Health Organization, until April 10, 2020, Defendants’ policy documents equivocated dangerously,” wrote the judge. “This Court is particularly disturbed,” he added, that ICE’s health services arm “did not more strongly recommend social distancing or even PPE for the most at risk detainees stuck in cohorts.”

Bernal wrote that ICE’s inaction on health measures and poor conditions in its facilities likely “exhibited callous indifference to the safety and wellbeing” of the plaintiffs and others similarly situated. One of the plaintiffs’ complaints, for example, was that the conditions of their detention were unconstitutional “punishment,” given that they were merely being held for civil offenses and not criminal charges. Bernal agreed and noted that the Bureau of Prisons, for comparison, “has issued a more decisive and urgent call to action.” He also pointed out that ICE’s arguments about the need to detain people do not hold up under pandemic conditions. Typically, the agency holds people simply to secure their attendance at later immigration hearings and generally to ensure public safety. But “attendance at hearings cannot be secured reliably when the detainee has … a deadly infectious disease with no known cure,” noted the judge. “Participation in immigration proceedings is not possible for those who are sick or dying, and is impossible for those who are dead.” Furthermore, he said, large outbreaks in ICE facilities would actually threaten broader public safety by taxing health resources.

Consequently, Bernal’s order requires ICE to identify and monitor at-risk detainees within 10 days. Additionally, the agency will have to improve their pandemic response standards and better enforce “facility-wide compliance” with those more robust requirements.

For more on COVID-19, see our special coverage.