Bench Memos

Law & the Courts

Ninth Circuit Panel Rejects District Court’s Covid Takeover of Immigration Detention Facilities

In a divided panel opinion today in Fraihat v. ICE, the Ninth Circuit reversed a district court’s preliminary injunction that, on the basis of covid risk, imposed a broad range of obligations on the federal government’s operation of all immigration detention facilities in the United States. Judge Daniel Bress, joined by Judge Eric Miller, wrote the 70-page majority opinion. Judge Marsha Berzon issued a lengthy dissent.

Here is an excerpt from the opening of Bress’s opinion:

In March 2020, toward the beginning of the COVID-19 pandemic, the plaintiffs in this case sought a preliminary injunction that would effectively place this country’s network of immigration detention facilities under the direction of a single federal district court. The named plaintiffs were five detainees housed at three detention centers. But plaintiffs made allegations and requested preliminary injunctive relief that far transcended their individual circumstances. They contended that as to all of the approximately 250 immigration detention facilities nationwide, U.S. Immigration and Customs Enforcement’s (ICE) directives in response to the COVID-19 pandemic reflected “deliberate indifference” to medical needs and “reckless disregard” of known health risks, in violation of the Fifth Amendment.

The district court agreed with the plaintiffs. In April 2020, it certified two nationwide classes and issued a preliminary injunction that applied to all immigration detention facilities in the United States. The injunction imposed a broad range of obligations on the federal government, including ordering ICE to identify and track detainees with certain risk factors that the district court identified; requiring ICE to issue a comprehensive Performance Standard covering a myriad of COVID-19- related topics, such as social distancing and cleaning policies; and setting directives for releasing detainees from custody altogether. Several months later, the district court issued a further order imposing more detailed requirements, such as twice-daily temperature checks, as well as procedures expressly designed to result in the release of substantial numbers of detainees from ICE custody….

We hold that the preliminary injunction must be set aside because plaintiffs have not demonstrated a likelihood of success on the merits of their claims. Our holding is a function of the sweeping relief plaintiffs sought and the demanding legal standards that governed their request. Plaintiffs did not seek individualized injunctive relief. Nor did they seek relief specific to the conditions at the detention centers in which they were housed. They instead challenged ICE’s nationwide COVID-19 directives, asking a district court mid-pandemic to assume control over the top-level policies governing ICE’s efforts to combat the viral outbreak. To obtain the extraordinary relief they sought, plaintiffs needed to come forward with evidence of constitutional and statutory violations on a programmatic, nationwide level. Plaintiffs did not do so.

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. 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….

While a preliminary injunction is always an extraordinary remedy, the relief sought here was extraordinary beyond measure. Based on claimed deficiencies in ICE’s national directives, plaintiffs sought a sweeping injunction that would and did place the district court in charge of setting the COVID-19 policies that apply to every immigration detention facility in the United States—for which the Executive Branch bears primary authority. As ICE was in the middle of confronting an unprecedented and evolving public health problem, it found its nationwide policies almost immediately subject to judicial revision.

Neither the facts nor the law supported a judicial intervention of that magnitude. 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. Plaintiffs here did not make the showing required to justify the extraordinary relief they requested.


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