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Trump Judge Halts Protections for ICE Detainees at High-Risk from COVID-19: Our Courts, Our Fight

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Trump Judge Halts Protections for ICE Detainees at High-Risk from COVID-19: Our Courts, Our Fight

“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects. Supreme and appellate court cases in the series can be found by issue and by judge at this link.


In a case with literally life and death implications, Trump Ninth Circuit judge Daniel Bress wrote an opinion, joined by Trump judge Eric Miller, which overturned a district court injunction during the Trump Administration  that had required U.S. Immigration and Customs Enforcement (ICE) to take steps to help protect vulnerable detained immigrants at high risk of hospitalization and death from COVID-19.  The  October 2021 ruling was in Frahait v. ICE

The case arose from ICE’s failure during  the Trump Administration  to protect detainees against COVID-19 , including releasing some at high risk from the disease. Even though ICE issued guidance in early 2020 suggesting that detention facilities evaluate these detainees for release so that only those who posed a significant public safety risk would remain detained, there was no enforcement mechanism or timetable for evaluation. As a result, only a relatively few such COVD high-risk detainees were released, and there were serious problems for those who remained in custody.

A class of detainees at high risk from COVID filed suit against ICE, alleging the agency violated their Fifth Amendment rights by exhibiting “deliberate indifference” to their medical needs. These concerns were not merely theoretical­—the detainees alleged a series of failures by ICE to observe basic infection control measures. One detainee spoke of eating all his meals in a crowded room with seventy others. Another testified that hand sanitizer stations at his facility had been empty for over two weeks. The district court issued an injunction requiring ICE to immediately institute infection-control measures such as regular testing. The court further mandated that ICE ensure detainees with high-risk medical conditions receive “timely” custody determinations taking no longer than a week. ICE appealed.

The case was argued before a Ninth Circuit panel in December 2020, while Trump was still in office. The incoming Biden administration engaged in discussions with the plaintiffs and informed the court on June 1 that they were considering asking the court for referral to its mediation services. On September 9, the administration and the plaintiffs formally made that request, asking the court to suspend consideration of the case in the meantime. Six weeks later, a divided panel denied the request and issued a ruling in the case, over the objection of Judge Marsha Berzon, who noted that in her time on the court, panels “rarely if ever” have denied a joint request for mediation.

Trump Ninth Circuit judges Bress and Miller overruled the district court’s injunction in a 2-1 decision. Bress claimed in his majority opinion that by imposing standards on ICE, the district court had “inhibited” the agency’s “flexibility… to respond to changing world conditions.” He further maintained that the nationwide injunction was “overbroad” and an “abuse” of the district court’s “discretion.

Judge Berzon strongly dissented, explaining that the urgency of the case made the district court’s injunction appropriate. Berzon noted that an estimated 15% of the high-risk detainees would die if they contracted COVID, demonstrating an immediate need for their release. Berzon also maintained that the district court had given ICE adequate deference to craft its own standards for release and protection of those remaining in custody, undercutting the majority’s claims that the district court had overstepped its bounds. Berzon wrote that these facts show the majority failed to show the district court “abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact,” as is required to overturn such an injunction. She characterized the district court’s decision as “limited, modest, and deferential to the government’s primary role in crafting policy and administering the detention facilities that house immigration detainees.”

ICE’s failure to release detainees at high risk from COVID has had tragic consequences. While the agency hasn’t released a full tally of COVID deaths, it reported 16 deaths of immigrants in its custody over the first year of the pandemic, its highest toll in 15 years. Although the Biden Administration will hopefully resolve the matter voluntarily, at least at the moment, the Trump judges’ ruling is yet another effort to vindicate Trump policies and means that immigrants in ICE’s custody will continue to face a heightened risk of hospitalization and death from the ongoing pandemic. This case reflects the importance, as part of our  fight for our courts, of confirming  fair-minded judges who will hold the federal government to account when it fails to protect public health and uphold constitutional rights.

Note: Andrew Kliewer is a law student fellow at People For the American Way.


covid-19, Daniel Bress, Eric Miller, Immigration, Ninth Circuit Court of Appeals, Our Courts Our Fight, Trump judges