(CN) — Federal immigration officials argued to the Ninth Circuit Wednesday they should not be under a nationwide court order to provide special care to disabled detainees due to Covid-19 because they responded to the pandemic in a timely manner.
Despite numerous outbreaks of Covid-19 at multiple Immigration and Customs Enforcement facilities, an attorney for the government argued before a Ninth Circuit panel that the injunction, issued by U.S. District Judge Jesus Bernal in April, put the agency “in a very rough place.”
The pandemic caused outbreaks of Covid-19 at federal immigration detention facilities where detainees were not able to distance themselves from one another.
A class action lawsuit, filed August 2019, argued disabled detainees are discriminated against because there is a lack of adequate mental and physical health care.
The class includes detainees at 160 facilities run by private prison companies under contract with ICE and the Department of Homeland Security.
The lead plaintiff in the case, Faour Fraihat, is partially blind and was detained at the Adelanto facility about 85 miles northeast of Los Angeles. He said his vision problems are ignored by federal officials and staff at the facility.
Immigration advocacy groups who filed the complaint on behalf of the detainees maintain that poor conditions are commonplace at facilities across the country.
Outbreaks of Covid-19 at detention facilities earlier this year brought a new level of urgency to the case and in April 2020, a nationwide preliminary injunction was granted by Judge Bernal from the Central District of California.
The court ordered ICE to identify people with risk factors if they were exposed to Covid-19 and to provide special precautions to keep them safe. The agency was also tasked to prioritize the release of those detainees when appropriate and for the federal agency to follow its own detention standards.
The government appealed the court’s preliminary injunction order and the certification of the class action lawsuit, claiming that the court based its decision on anecdotal evidence at just a few detention facilities.
The federal immigration agency argued the plaintiff’s substantive due process claim was based on an alleged deliberate indifference to the medical needs of the detainees.
On Wednesday, an attorney for the government argued that the district court did not provide a highly granular analysis of the conditions at ICE detention facilities, but instead relied on anecdotal evidence.
U.S. Circuit Judges Marsha Berzon, a Bill Clinton appointee, Daniel Bress and Eric Miller, both Trump appointees, made up the panel.
Deputy Assistant Attorney General Scott Stewart said individual declarations provided by the plaintiffs fall short of an attack on the systemwide policies followed by ICE. He said the plaintiffs "cherry picked” their claims.
“The problem here is you cannot resolve the propriety of ICE response in this fluid context with one broad stroke,” Stewart said.
He argued that the issues presented by the plaintiffs should be addressed on a person-by-person basis.
The situation is there are some facilities with large populations and others with smaller populations, Stewart said. He added that the federal government was “in a very rough place” under the preliminary injunction, one that places the agency under court supervision and could result in contempt.
Plaintiffs’ attorney Brian Goldman began to launch into his argument when Judge Bress questioned how the district court could prove reckless disregard against the entire class of detainees.
“This is a monster type allegation,” Bress said. “The allegation here is that at a systemwide level across the nation, 250 facilities, thousands of people and the allegation is one of a sort of negligence or they could have done better. But it’s actually quite a high standard of deliberate indifference. It seems to me that you have both a difficult legal standard on the merits and a difficult path under class certification. I just think it’s a very ambitious lawsuit.”
Goldman said the district court ordered a modest order when it asked ICE to comply with its own pandemic standards to keep detainees safe. He described the preliminary injunction to “just move them into constitutional guardrails.”
Later, Stewart said the order covers hundreds of facilities, and could stretch out for years.
“That is not a modest injunction,” he said.
Bress asked Goldman, based on the April injunction order, how the plaintiffs could show that there was deliberate indifference.
Goldman said there is a long history of ICE not complying with its policies and given the evidence that was submitted, the court found that there was a failure to address the substantial risk Covid-19 posed to detainees even with the emergency policies put in place.
Bress pushed further, asking for proof that the April injunction had not been enforced at ICE facilities.
Goldman said there were statements from detainees about poor conditions in eight centers in Georgia and similar statements from advocates who have a systemwide view of the facilities that shows a lack of response to the pandemic.
“The district court could look at the combination and the contemporaneous evidence and the fact that ICE had moved so slowly in the first couple of months of the pandemic” to say this is not being done quickly enough and a limited injunction is needed, Goldman said.
A follow-up court order was filed in October that tightened up the federal government’s response to the pandemic in its immigrant detention facilities.
ICE has appealed that ruling. Goldman said there has been some compliance with the order, but there are still thousands of class members that have been overlooked.
The panel took the argument under submission and did not indicate when they would issue their ruling.
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