by Douglas Ankney

On October 20, 2021, the U.S. Court of Appeals for the Ninth Circuit reversed a district court’s injunction ordering system-wide relief to protect detainees held for federal Immigration and Customs Enforcement (ICE) from COVID-19. In so doing the Court continued a trend of reversing protective injunctions put in place by lower courts since the onset of the pandemic in March 2020.

In April 2020, the U.S. District Court for the Central District of California entered a preliminary injunction and provisionally certified two nationwide subclasses of ICE detainees:

• those with certain risk factors placing them at heightened risk of severe illness and death from COVID-19; and

• those whose disabilities placed them at heightened risk of severe illness and death from COVID-19.

The district court found that plaintiffs were likely to succeed on the merits of their Fifth Amendment claims of punitive conditions of confinement and deliberate indifference to their medical needs, as well as their claims of violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. As the district court explained, “the common question driving this case” is the adequacy of ICE’s “system-wide response” to the pandemic. The district court was clear that its preliminary injunction did “not opine on the lawfulness of conditions by any individual detainee” nor “determine the lawfulness of conditions at any particular facility.”

The preliminary injunction applied to all immigration detention facilities in the U.S. and imposed a broad range of obligations on the federal government, including ordering ICE to identify and track detainees with certain risk factors, requiring the agency to issue a comprehensive Performance Standard covering COVID-19 related topics, as well as setting directives for releasing detainees altogether. The government appealed.

Taking up the case then, the Ninth Circuit observed that “[a]n overbroad injunction is an abuse of discretion,” citing Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009). A preliminary injunction is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion,” the Court continued, citing Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012).

The Court continued, citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008), that in order to obtain a preliminary injunction, a plaintiff must show: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equity tips in his favor; and (4) that an injunction is in the public interest. Likelihood of success on the merits is the most important factor, the Court added, citing California v. Azar, 911 F.3d 558 (9th Cir. 2018).

Regarding the district court’s finding that ICE was deliberately indifferent to the medical needs of the detainees, the Court recounted in extensive detail the agency’s initial response to the pandemic, including separating detainees according to CDC spacing guidelines; providing more sanitation and improved hygiene; and releasing lower-risk detainees critically susceptible to death from COVID-19. The Court also chronicled how ICE’s response changed as knowledge and understanding of risk factors associated with COVID-19 evolved.

The Court found it most unusual that the basis for plaintiffs’ request and the district court’s injunction was not the individual circumstances of any detainee or the conditions of any single ICE facility. Given the inevitable differences in the medical vulnerabilities of individual detainees and the material differences across ICE’s approximately 250 detention facilities nationwide, plaintiffs’ request did not justify a nationwide injunction with nationwide classes.

For example, in Roman v. Wolf, 977 F.3d 935 (9th Cir. 2020), the plaintiffs challenged the conditions of confinement at one ICE detention facility known as Adelanto. The district court had before it detailed information about the conditions at Adelanto, including screening procedures, cleaning routines, and physical layout of the facility, down to the precise distance between bunk beds in feet and inches. And even then, the Ninth Circuit “vacate[d] the provisions of the preliminary injunction that ordered specific measures to be implemented at Adelanto,” cautioning that “the district court should, to the extent possible, avoid imposing provisions that micromanage the Government’s administration of conditions at Adelanto.”

The Court concluded that the district court’s lack of knowledge of conditions at every ICE facility nationwide, coupled with the actions ICE had taken throughout the pandemic, proved that plaintiffs had failed to show that ICE had acted with deliberate indifference to medical needs of detainees.

Regarding the district court’s finding that plaintiffs were subject to punitive conditions, the Court agreed that a civil detainee awaiting adjudication is entitled to conditions of confinement that are not punitive, as laid out in Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004). But if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not amount to punishment, the Court said, citing Bell v. Wolfish, 441 U.S. 520 (1979).

Furthermore, the Court said that ICE has an understandable interest in detaining persons suspected of violating immigration laws or who are otherwise removable to ensure attendance at immigration proceedings, improve public safety, and promote compliance with immigration laws, citing Demore v. Kim, 538 U.S. 510 (2003). Thus, the Court concluded that plaintiffs had not shown that conditions at ICE facilities went beyond what was reasonable to attain those objectives.

Finally, the Court said that plaintiff’s Rehabilitation Act claim required a showing that (1) he is an individual with a disability; (2) he is otherwise qualified to receive a benefit; (3) he was denied the benefits of a program solely by reason of his disability; and (4) the program receives federal financial assistance, citing Updike v. Multnomah County, 870 F.3d 939 (9th Cir. 2017). Examining the third element, the Court concluded that plaintiffs had not identified any benefit of which they had been denied.

Because the plaintiffs failed to show the likelihood of succeeding on the merits of their claims, the district court abused its discretion in granting the preliminary injunction, the Court said. It reversed the preliminary injunction and remanded with directions that all orders premised on it be vacated. See: Fraihat v. United States Immigration & Customs Enf’t, 16 F.4th 613 (9th Cir. 2021).

The case follows a similar reversal of a district court’s injunction by the Eleventh Circuit in Swain v. Junior, 961 F.3d 1276 (11th Cir. 2020). The Fifth Circuit also made a similar ruling. [See: PLN, Nov. 2021, p.11.] If the pandemic doesn’t fade without killing many more prisoners and detainees, these judicial fiats may come to look extremely rash. 

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