Fraihat v. U.S. Immigration and Customs Enforcement

Click here for community resources (English and Spanish) including information explaining the consequences of the court’s order, who it applies to, and aspects of the decision that may be useful in your advocacy.

According to the April 20, 2020 emergency order, ICE must conduct custody redeterminations for all subclass members. Click here for information on how to submit a request for ICE to perform a custody review, plus related materials.

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).

Although ICE facilities are classified as civil, conditions for detainees in ICE facilities are similar to and in some cases worse than those in prison. In violation of the 5^th Amendment of the U.S. Constitution and Section 504 of the Rehabilitation Act, there are nearly 40,000 immigrants currently being held across 121 ICE detention facilities that are being subjected to horrific, inhumane, and unlawful conditions of confinement. Over the course of Fiscal Year 2018, ICE detained approximately 396,448 people. These individuals are packed into immigration prisons in which they are routinely denied healthcare and disability accommodations, and are subjected to arbitrary and punitive isolation, often over 22 hours per day. Thousands have suffered in detention, many of whom have abandoned viable claims for relief and accepted deportation out of a desperate desire to be released or to obtain necessary medical care, and dozens have died as a result of insufficient care.

Plaintiffs do not seek monetary damages, but instead aim to reform the way our nation treats the human beings who have immigrated to the United States.

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 argues that if ICE cannot or will 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.

Based on first-hand observations from attorneys serving clients inside detention centers and direct reports from people who are detained, the current conditions are medically dangerous and fail to meet standard public health recommendations for addressing the pandemic.

According to the court filing, ICE has not provided even the most basic public health protections inside detention centers. Its failure to take preventative measures – like reducing crowding to implement social distancing or providing soap and hand sanitizer – places individuals with underlying conditions including heart conditions, diabetes, and other serious health conditions in imminent danger of infection and death. Current ICE protocols do 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. 

The threat of COVID-19 compounds the existing inhumane conditions in detention centers already highlighted in the lawsuit. In several instances, detention centers have not provided any information about COVID-19 to detained people, meaning they do not know the symptoms or how to even try to protect themselves from infection.

If the preliminary injunction is granted, ICE would be required to immediately assess medically vulnerable people for COVID-19 risk factors and either immediately implement medically necessary precautions consistent with standards of care, or release them. Additionally, ICE would immediately be required to provide basic protections such as providing ample soap and hand sanitizer, protocols for transporting people to the hospital, and appropriately testing and treating anyone with COVID-19 symptoms. The motion seeks the release of those in detention if ICE cannot take medically necessary precautions.

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.’”

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 have continued to skyrocket in ICE detention centers across the country – a grim reality proving that the agency is 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 continues to detain the majority of medically vulnerable people in their custody in unsafe conditions, and DRA and partners continue 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 has 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 clarifies limits on transfers between facilities, a practice that has contributed to massive COVID-19 outbreaks inside detention centers, and bans solitary confinement as a quarantine measure, a punitive and inhumane practice that goes against public health recommendations.

In March 2021, the court granted a motion to appoint a special master, or independent third party, that will ensure the federal government’s compliance with an injunction in the groups’ class-action lawsuit against ICE.

The decision paves the way for systemized custody reviews and releases of people at higher risk of COVID-19 infection and serious illness. The order follows months of noncompliance by the government and its continued detention of thousands of medically vulnerable people in ICE detention facilities where COVID-19 continues to spread.