Ninth Circuit Grapples With Handling of Covid Risk at ICE Detention Centers

A U.S. appeals judge said the lower court was “micromanaging” two detention centers by deciding which immigrants should be released on bail to reduce Covid-19 spread instead of letting ICE make the calls.

Detainees exercise at the Adelanto ICE Processing Center in Adelanto, Calif. (AP Photo/Chris Carlson, File)

SAN FRANCISCO (CN) — A Ninth Circuit panel signaled Monday that, although judges don’t have to wait for a crisis before acting to prevent one, a federal judge may have overstepped his authority by “micromanaging” the release of immigrant detainees to head off a Covid-19 outbreak.

“Where do you draw the line with the district court micromanaging what’s happening at the facility,” U.S. Circuit Judge Bridget Bade, a Donald Trump appointee, asked during oral arguments Monday.

Bade is one of three Ninth Circuit judges overseeing an appeal of a federal judge’s decision to start a bail review process for hundreds of immigrant detainees at two California detention centers found to be lacking adequate Covid-19 safeguards.

U.S. District Judge Vince Chhbaria issued a temporary restraining order on April 29 requiring Immigration and Customs Enforcement to reduce overcrowding at the Mesa Verde detention center in Bakersfield, which is run by private contractor GEO Group, and Yuba County Jail in Marysville, which also houses immigrant detainees.

The judge set up a process to review each detainee based on age, health conditions, risk of flight and danger posed to the community. A few weeks later the judge issued a preliminary injunction on June 9 requiring ICE to operate both facilities at a lower capacity and continuing the bail release process.

“The court lacks the authority to release individuals on bail as part of an individualized process,” U.S. Justice Department lawyer Jeffrey Robins told the Ninth Circuit panel Monday.

The government maintains conditions at the two facilities did not support an order requiring population reductions. If unsafe conditions did exist, Robins said the court’s power is limited to making ICE cut the population to a specific number. It cannot decide which detainees should be released individually because only the executive branch can make those calls and federal law requires unauthorized immigrants be detained and deported, he argued.

On the question of whether an injunction was justified, the panel seemed to agree the court was entitled to take action to protect detainees from Covid-19 infection, despite the government’s argument that no Covid-19 cases were reported when the court order was issued.

“At the time there weren’t proven Covid cases because they didn’t test people,” U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, said. “The judge has to be able to take into account the risk in light of the science and not the fact that there wasn’t any case yet.”

Covid-19 outbreaks later erupted at both facilities. In August, Chhabria required rapid-result Covid tests for all detainees at Mesa Verde after an outbreak infected more than half the detainees and a quarter of the staff there. In December, the judge ordered Yuba County Jail to stop accepting new detainees until an outbreak that infected a third of the jail’s detainee and inmate population subsided.

“What he found was it was a tinderbox,” U.S. Circuit Judge Morgan Christen said. “If this were literally a fire code violation, we would not require that the prison has to catch on fire before a district court judge issues an order requiring compliance.”

Despite that finding, Christen, a Barack Obama appointee, had some qualms with Chhabria’s June 9 preliminary injunction ruling. Chhabria noted that conditions had improved at both facilities, but he still required the bail review process to continue.

“He says ‘the improved conditions do nothing to disturb the conclusion that interim relief is necessary,’” Christen said, quoting the district court judge’s ruling. “I don’t know how that can be right.”

Representing a class of more than 400 immigrant detainees, attorney Bree Bernwanger explained why those improved conditions had little bearing on the judge’s decision. She said ICE dragged its feet and failed to take any meaningful steps to reduce the population or implement safety protocols without the court aggressively pushing it to do so.

When the court asked ICE to produce a list of detainees with their medical vulnerabilities, ages and criminal histories, ICE not only failed to produce the list but said “it would be too burdensome” to do so, Bernwanger said.

“They could have come to the table and proposed who should have been released,” Bernwanger argued. “They never did that. They opposed every single release application.”

Bade acknowledged that detainees are “likely to prevail” on their claim that ICE was subjecting them to unconstitutional conditions of confinement, but she suggested Chhabria should have used the remedy employed by a judge in a similar case in Southern California. In that case, Hernandez Roman v. Chad Wolf, a judge ordered ICE to reduce a detention center’s population by a certain amount without reviewing individual applications. In October 2020, the Ninth Circuit endorsed that approach in a 25-page opinion.

“I think Roman‘s point is well taken that the court cannot start that level of micromanagement which seems to have happened here,” Bade said.

Bade noted that one of the hundreds of detainees released on bail by Chhabria removed his GPS-monitoring device and ran away. That detainee is wanted for murder in Guatemala.

Bernwanger argued that 99% of immigrant detainees released on bail with GPS-monitoring do not flee, but Bade cited the incident as evidence that the executive branch has more expertise and is better suited to decide which detainees should be released on bail.

After about an hour of debate, the panel took the arguments under submission.

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