Advocates Take ICE Back to Court Requesting Enforcement of Previous Ruling to Protect People in Custody from COVID-19

RIVERSIDE, Calif. – Last night, civil rights advocates filed a motion to enforce a preliminary injunction in the U.S. District Court for the Central Division of California, seeking to enforce U.S. District Judge Jesus Bernal’s recent order imposed on Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS). Attorneys in the ongoing system-wide class action lawsuit Fraihat v ICE argue that ICE has flouted Judge Bernal’s order in three critical areas: failure to implement meaningful oversight measures; failure to review for release all people with COVID-19 risk factors; and failure to quickly and adequately update their detention standards to ensure the safety of medically vulnerable people in detention.

In recent weeks, COVID-19 cases have continued to skyrocket in ICE detention centers across the country – a grim reality proving that the agency is knowingly putting people at risk in defiance of the Court’s order. By ICE’s own count, there were 124 people in their custody who tested positive for COVID-19 at the time of the April 20 order. Today, that number is close to 2,500. ICE continues to detain the majority of medically vulnerable people in their custody in unsafe conditions.

Two individuals, Carlos Ernesto Escobar Mejia and Santiago Baten-Oxlaj, recently died of COVID-19 while in ICE custody – a tragic and senseless loss of life resulting from the agency’s decision to continue to detain them in dangerous conditions despite having broad discretion to release people. 

“Six weeks ago, the Court ordered ICE to evaluate at-risk populations for potential release and ensure that those still in custody receive appropriate care and safe conditions of confinement.” said Tim Fox, Co-executive Director of Civil Rights Education and Enforcement Center. “ICE has failed to meaningfully conduct custody reviews and has failed to protect medically vulnerable people. Such blatant disregard for the lives and health of thousands of human beings is a disgrace.”

Attorneys argue that ICE was unwilling or unable to quickly and adequately revise their detention standards as ordered by the court on April 20, continuing to permit dangerous conditions and practices in detention facilities that threaten the lives of detained immigrants, especially the medically vulnerable. These practices include inadequate COVID-19 testing, unnecessary transfers, use of solitary confinement as a form of infection control, and inadequate medical screening and surveillance.  

In Aurora Detention Center in Aurora, Colorado, a 57-year-old man with hypertension has been detained at the facility since being transferred there on May 15 from Sterling Prison, the site of one of Colorado’s largest COVID-19 outbreaks. Later that month, he was admitted to the hospital with severe COVID-19 symptoms. Upon returning to Aurora approximately one week later, ICE placed him in disciplinary segregation, or “the Hole.” Said the man in a sworn declaration, “I felt so bad when I first returned that I could not really stand up and I had to ask for a shower chair when I used the shower. My cell was filthy and freezing and I had nothing to clean with.” The man is still suffering from shortness of breath. “I have not been seen by the doctor since I got back from the hospital,” he continued. ICE is refusing to release him to shelter in place with his family.

“I am very worried that I am going to have more heart issues and I will die without them noticing,” said another man detained at Adelanto Detention Center in California. In May of 2020, he was admitted to the hospital for severe chest pain but returned to Adelanto four days later. As soon as he returned from the hospital, ICE locked him in solitary confinement as a form of quarantine. Noting the agency’s lack of adequate testing, the man added, “I have never received a COVID-19 test. I was not tested when I returned from the hospital.” Despite the risks of his continued detention and right to a Court-ordered custody redetermination, the 37-year-old refugee remains at Adelanto and ICE refuses to release him.

“By all accounts, we’re seeing ICE treat people with the same ‘callous indifference’ the Court recognized in granting our preliminary injunction in April,” said Jared Davidson, Senior Staff Attorney with the Southern Poverty Law Center. “In proving themselves incapable of treating those in its custody humanely, ICE is systematically depriving the freedom and safety of tens of thousands of people in violation of its constitutional and statutory obligations.” 

The motion to enforce also asserts that ICE has failed to meaningfully conduct custody redeterminations in a timely manner, as required by the Court’s April 20 order. ICE has refused to release the vast majority of people with risk factors, often issuing perfunctory denials of release without explanation. This practice is in violation of the Court’s order to review all detained people with risk factors “regardless of their statutory authority for their detention.”

Given the inadequate response from ICE and the rising number COVID-19 infections in detention centers, the motion to enforce requests that the Court appoint a Special Master to monitor ICE’s future compliance and to provide real-time reports that will help protect medically vulnerable people in detention from grave harm. The motion also requests that the Court order the release of medically vulnerable people unless ICE can demonstrate that they are a flight risk or danger. In addition, the motion demands that specific precautions be added to ICE’s detention standards, including universal testing, prohibitions on transfers (which spread the virus), a prohibition on the use of solitary confinement as a means of medical isolation or quarantine, expanded medical monitoring, and treatment planning for medically vulnerable people, amongst other measures.  

“ICE’s failure to comply with the court’s order, combined with the gravity of the health risks at issue for detained persons with risk factors for COVID-19, necessitates having a third party Special Master do what ICE has demonstrated it has failed to do on its own,” said Stuart Seaborn, Managing Director of Litigation at Disability Rights Advocates.

The Fraihat v. ICE lawsuit filed by the Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Southern Poverty Law Center (SPLC), Orrick, Herrington & Sutcliffe LLP, and Willkie Farr & Gallagher LLP in August of 2019 seeks an end to the inhumane and traumatic experience of ICE detention affecting tens of thousands across the country.

See plaintiffs’ motion to enforce the April 20, 2020 preliminary injunction order here. 
 
See the complaint here and all other filings in the case here.

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Civil Rights Education and Enforcement Center (CREEC) is a nonprofit membership organization whose goal is to ensure that everyone can fully and independently participate in our nation’s civic life without discrimination based on race, gender, disability, religion, national origin, age, sexual orientation, or gender identity. https://creeclaw.org/.
 
Disability Rights Advocates (DRA), founded in 1993, is the leading national nonprofit disability rights legal center.  Its mission is to advance equal rights and opportunity for people with all types of disabilities nationwide. DRA represents people with the full spectrum of disabilities in complex, system-changing, class action cases.  Thanks to DRA’s precedent-setting work, people with disabilities across the country have dramatically improved access to health care, employment, transportation, education, disaster preparedness planning, voting, housing, and juvenile justice. https://www.dralegal.org.
 
The Southern Poverty Law Center (SPLC) is a catalyst for racial justice in the South and beyond, working in partnership with communities to dismantle white supremacy, strengthen intersectional movements, and advance the human rights of all people. Through its Southeast Immigrant Freedom Initiative, the SPLC provides direct representation to immigrants in remote, rural detention centers in two of the states with the highest numbers of detained individuals, Louisiana and Georgia. https://www.splcenter.org/.
 
Orrick has 27 offices worldwide, and focuses on serving the Technology, Energy & Infrastructure and Finance sectors globally. Clients worldwide call on Orrick’s teams for forward-looking commercial advice on transactions, litigation and compliance matters. https://www.orrick.com/en/About-Us.

Willkie Farr & Gallagher LLP is an international law firm of more than 700 attorneys with offices in New York, Washington, Houston, Palo Alto, San Francisco, Chicago, Paris, London, Frankfurt, Brussels, Milan and Rome. The Firm is headquartered in New York City at 787 Seventh Avenue. Tel: 212.728.8000. https://www.willkie.com/about-us