April 21, 2020

The sweeping ruling follows an emergency application for a preliminary injunction filed by Willkie and civil rights organizations seeking COVID-19 protections for people in immigration detention centers.

On April 20, a federal judge ordered Immigration and Customs Enforcement (ICE) to promptly revisit custody determinations, including consideration of release for all persons in ICE detention whose age or health conditions place them at increased risk due to the Covid-19 pandemic. The order comes weeks after Willkie, along with Civil Rights Education and Enforcement Center, Disability Rights Advocates, the Southern Poverty Law Center and Orrick, filed for an emergency preliminary injunction on March 25.

The order comes amid a spike in confirmed cases of Covid-19 inside detention centers. Recent numbers provided to Congress reveal that only 400 detained individuals have been tested for Covid-19, and of those, nearly one in three have tested positive. As the court noted, ICE exercises control over the size of its detention population as a whole, and thus determines one of the most important factors in the spread of disease: the density of the detained population.

Although the agency could immediately release thousands of individuals in its custody to preserve public health in the face of the pandemic, it has refused to do so. Officials stated Friday that ICE had released fewer than 700 medically vulnerable people. This ruling opens the door to that relief to thousands of people.

The preliminary injunction requested that ICE be required to promptly assess medically vulnerable people for COVID-19 risk factors and either immediately implement medically necessary precautions consistent with CDC standards of care, or release them. If ICE could not or would not take medically necessary precautions, the motion requested immediate release of the medically vulnerable. In his order, Judge Bernal ruled ICE must conduct new assessments of every individual at heightened risk of contracting Covid-19 under their custody and make a new release determination, regardless of whether or not the individual has already applied for parole, habeas, or other forms of relief.

The preliminary injunction was requested as part of an existing class action lawsuit, Fraihat v. ICE, on behalf of the tens of thousands of people held in ICE facilities throughout ICE’s nationwide detention system. Last week, Judge Bernal denied the government’s motion to dismiss the lawsuit.

The organizations representing the plaintiffs in Fraihat v. ICE are Civil Rights Education and Enforcement Center, Disability Rights Advocates, and the Southern Poverty Law Center. Law firms Orrick, Herrington & Sutcliffe LLP and Willkie Farr & Gallagher LLP are serving as pro bono co-counsel.

Partner Michael Johnson led the pro bono Willkie team, which also included associates Dania Bardavid, Leigh Coutoumanos, Joseph Bretschneider, Jessica Blanton, and Timothy Ryan.