Judge Was Right to Protect ICE Detainees From COVID-19 'Tinderbox,' Court Rules

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A corridor inside the Yuba County Jail, one of two California facilities a U.S. district judge called a 'tinderbox' of COVID-19 risk for the ICE detainees held there. (Courtesy Rosen Bien Galvan & Grunfeld LLP)

Immigrants who sued to be released from detention during the COVID-19 pandemic have won support from a federal appeals court in San Francisco. A three-judge panel of the 9th U.S. Circuit Court of Appeals agreed Thursday afternoon that conditions in two California facilities were so hazardous they likely violated the Constitution.

Last spring, the detainees sued U.S. Immigration and Customs Enforcement, saying the impossibility of social distancing and the lack of COVID-19 testing and measures like masks and disinfectant put them at risk of illness and death.

U.S. District Judge Vince Chhabria agreed, calling crowded conditions a “tinderbox” at the Yuba County Jail and the privately run Mesa Verde ICE Processing Facility in Bakersfield.

Chhabria issued a series of injunctions to force ICE to improve the conditions of confinement. And he reviewed scores of bail applications, eventually releasing more than 130 people from the two facilities.

The Trump administration and the private prison company GEO Group appealed, saying the judge lacked authority to remedy conditions or release detainees.

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In an unpublished ruling Thursday, the 9th U.S. Circuit Court of Appeals disagreed, saying that Chhabria had acted properly and that the plaintiffs had shown they were likely to succeed in proving that detention conditions in April violated their right to due process under the Fifth Amendment to the U.S. Constitution.

Citing an earlier decision, the three judges – Marsha Berzon, Morgan Christen and Bridget Bade – wrote, “The Fifth Amendment requires the government to provide conditions of reasonable health and safety to people in its custody.”

Ultimately the Mesa Verde facility suffered an outbreak of COVID-19 in August, and the Yuba County Jail was hit by the virus in December. Almost 70 detained immigrants eventually contracted COVID-19 at the two facilities, according to ICE. Those who got sick included one man who had participated in hunger strikes to draw attention to COVID-19 risks at Yuba County Jail.

Bree Bernwanger, a senior attorney with the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, argued the case. She said the 9th Circuit’s ruling is a reminder that ICE officials must prioritize the safety of people in their custody over the agency’s interest in detaining them.

“ICE violates the Constitution when it subjects people to an unreasonable risk of harm in detention,” she said. “And the risk of contracting COVID is a serious one that is constitutionally protected.”

Bernwanger also noted that ICE detention is a form of civil custody, meant to hold people facing possible deportation if they are a danger to the public or unlikely to appear in immigration court as scheduled.

She said the fact that those who were let free are back in their homes, safe from the pandemic, and with only rare allegations that any of them violated the court order for their release shows that ICE detention is largely unnecessary.

“ICE detention is a sham,” Bernwanger said. “It hasn't been keeping anyone safer. It's actually just been more dangerous to our communities.”

An ICE spokesman said the agency is currently reviewing the 9th Circuit’s decision and has no further comment because the matter is in litigation.

The 9th Circuit panel referred the case to a mediation program to work out next steps, noting that conditions in ICE detention have changed considerably in recent months, as the pandemic progressed and Chhabria ordered additional protections.