Fraihat v. U.S. Immigration and Customs Enforcement

In August 2019, Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Orrick, Herrington & Sutcliffe, and Southern Poverty Law Center (SPLC) filed a nationwide class action lawsuit against U.S. Immigration and Customs Enforcement (ICE) and U.S. Department of Homeland Security (DHS), challenging ICE’s systemic failure to monitor its facilities, which results in policies, procedures, and conditions that discriminate against detainees, including people with all types of disabilities.

The lawsuit represents persons currently detained by ICE in prison-like settings who are routinely discriminated against in the form of disciplinary segregation, improper medical screening, delayed and denied medical care, and denial of reasonable accommodations such as hearing aids and mobility devices. Organizational plaintiffs for the case are the bi-national direct legal services organization Al Otro Lado and the advocacy collective Inland Coalition for Immigrant Justice (ICIJ).

In March 2020, the coalition of civil rights legal organizations and their pro bono partners filed an emergency application for a preliminary injunction in the U.S. District Court for the Central District of California seeking a court order requiring ICE take immediate steps to protect people in immigration detention facilities from COVID-19, particularly those at heightened risk. The motion immediately followed ICE’s own admission of the first confirmed positive case of COVID-19 of a person in ICE detention. 

The motion argued that if ICE cannot or would not immediately take steps to ensure that medically vulnerable people are protected from COVID-19 – including providing timely access to qualified and necessary healthcare – then the Court should order ICE to release those individuals in the interest of public health.

The motion provided first-hand observations from attorneys serving clients inside detention centers and direct reports from people who are detained that the conditions were medically dangerous and failed to meet standard public health recommendations for addressing the pandemic. ICE’s failure to take preventative measures – like reducing crowding to implement social distancing or providing soap and hand sanitizer – placed individuals with underlying conditions including heart conditions, diabetes, and other serious health conditions in imminent danger of infection and death. ICE protocols did not even consider trying to identify high-risk individuals, much less take the significant steps necessary to reduce the risk of contagion, illness, serious complications, and death. 

In a victory for detained immigrants, in April 2020 a federal judge ordered ICE to promptly revisit custody determinations, including consideration of release for all persons in ICE detention whose age or health conditions placed them at increased risk due to the pandemic. In his blistering rebuke of the government’s response to COVID-19 in detention centers, the judge wrote, “As a result of these deficiencies, many of which persist more than a month into the COVID-19 pandemic, the Court concludes Defendants have likely exhibited callous indifference to the safety and wellbeing of [detained immigrants at risk]. The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.’” The injunction required ICE to take a number of different precautionary measures to protect people from COVID-19, including custody redeterminations for those with risk factors, issuance of new standards to protect people from COVID-19 who are in detention, and meaningful oversight and monitoring to ensure that people are protected from COVID-19 while in custody.

In June 2020, DRA and partners filed a motion to enforce the preliminary injunction as ICE continued to flout the judge’s order. COVID-19 cases continued to skyrocket in ICE detention centers across the country – a grim reality proving that the agency was 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 2020 order. By June, that number approached 2,500. ICE continued to detain the majority of medically vulnerable people in their custody in unsafe conditions, and DRA and partners continued to fight for the health and safety of immigrants in ICE detention.

In October 2020, U.S. District Judge Jesus Bernal granted the organizations’ motion to enforce a preliminary injunction in the class-action lawsuit against ICE, ordering the agency to perform custody determinations to all individuals in all of their detention centers across the country with medical risk factors that increase their risk of serious COVID-19 complications in compliance with the Court’s April 20 injunction.

In his order, Judge Bernal found that ICE had fallen “far short” of complying with the April 20 order, adding that “the Court is gravely concerned that Fraihat custody decisions are a disorganized patchwork of non-responses or perfunctory denials” and that “more active monitoring of Defendants’ compliance is needed.” The Court went on to issue several clarifications to the April 20 injunction including ICE’s obligation to identify and track individuals with risk factors within five days of their detention and to make timely custody determinations, including individuals subject to mandatory detention.

The order also clarified limits on transfers between facilities, a practice that has contributed to massive COVID-19 outbreaks inside detention centers, and banned solitary confinement as a quarantine measure, a punitive and inhumane practice that goes against public health recommendations.

In October 2021, the Ninth Circuit issued a ruling overturning the preliminary injunction order, which was ultimately vacated on September 22, 2022. The lawsuit was dismissed without prejudice on March 17, 2025. 

During the time that the preliminary injunction was in effect, over 60,000 people were released from detention and many received access to COVID-19 vaccines as a result of this order. DRA is proud of the relief achieved through this case and thank our plaintiffs, co-counsel, and the many advocates who contributed to this case.