Fraihat v. U.S. Immigration & Customs Enforcement

• Decision Date: 20 October 2021
• Docket Number: No. 20-55634,20-55634
• Citation: 16 F.4th 613
• Parties: Faour Abdallah FRAIHAT; Marco Montoya Amaya; Raul Alcocer Chavez; Jose Segovia Benitez; Hamida Ali ; Melvin Murillo Hernandez; Jimmy Sudney; Jose Baca Hernandez; Edilberto Garcia Guerrero; Martin Munoz; Luis Manuel Rodriguez Delgadillo; Ruben Dario Mencias Soto; Alex Hernandez; Aristoteles Sanchez Martinez; Sergio Salazar Artaga; Inland Coalition for Immigrant Justice; Al Otro Lado, Plaintiffs-Appellees, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. Department of Homeland Security; Alejandro Mayorkas; Tae D. Johnson; Steve K. Francis; Corey A. Price; Patrick J. Lechleitner; Stewart D. Smith; Jacki Becker Klopp; David P. Pekoske, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

16 F.4th 613

Faour Abdallah FRAIHAT; Marco Montoya Amaya; Raul Alcocer Chavez; Jose Segovia Benitez; Hamida Ali ; Melvin Murillo Hernandez; Jimmy Sudney; Jose Baca Hernandez; Edilberto Garcia Guerrero; Martin Munoz; Luis Manuel Rodriguez Delgadillo; Ruben Dario Mencias Soto; Alex Hernandez; Aristoteles Sanchez Martinez; Sergio Salazar Artaga; Inland Coalition for Immigrant Justice; Al Otro Lado, Plaintiffs-Appellees,

v.U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. Department of Homeland Security; Alejandro Mayorkas; Tae D. Johnson; Steve K. Francis; Corey A. Price; Patrick J. Lechleitner; Stewart D. Smith; Jacki Becker Klopp; David P. Pekoske, Defendants-Appellants.

No. 20-55634

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2020 Seattle, Washington

Filed October 20, 2021

Scott G. Stewart (argued), Deputy Assistant Attorney General; Anna L. Dichter and Lindsay M. Vick, Attorneys; William K. Lane III, Counsel; Christopher A. Bates, Senior Counsel; Jeffrey S. Robins, Deputy Director; William C. Peachey, Director; Ethan P. Davis, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Brian P. Goldman (argued), William F. Alderman, Mark Mermelstein, and Jake Routhier, Orrick Herrington & Sutcliffe LLP, San Francisco, California; Matthew R. Shahabian and Melanie R. Hallums, Orrick Herrington & Sutcliffe LLP, New York, New York; Katherine M. Kopp, Orrick Herrington & Sutcliffe LLP, Washington, D.C.; Timothy P. Fox and Elizabeth Jordan, Civil Rights Education and Enforcement Center, Denver, Colorado; Jared Davidson, Southern Poverty Law Center, New Orleans, Louisiana; Stuart Seaborn, Melissa Riess, and Rosa Lee Bichell, Disability Rights Advocates, Berkeley, California; Maria del Pilar Gonzalez Morales, Civil Rights Education and Enforcement Center, Los Angeles, California; Shalini Goel Agarwal, Southern Poverty Law Center, Tallahassee, Florida; Christina Brandt-Young, Disability Rights Advocates, New York, New York; Michael W. Johnson, Dania Bardavid, Jessica Blanton, and Joseph Bretschneider, Willkie Farr & Gallagher LLP, New York, New York; Leigh Coutoumanos, Willkie Farr & Gallagher LLP, Washington, D.C.; Veronica Salama, Southern Poverty Law Center, Decatur, Georgia; for Plaintiffs-Appellees.

Stephen J. McIntyre, Marissa Roy, and Kevin Kraft, O'Melveny & Myers LLP, Los Angeles, California; Lisa B. Pensabene, O'Melveny & Myers LLP, New York, New York; for Amici Curiae Casa de Paz, Church World Service—Jersey City, Clergy & Laity United for Economic Justice, Detention Watch Network, El Refugio, and Freedom for Immigrants.

Clifford W. Berlow, Michele L. Slachetka, Jonathan A. Enfield, E.K. McWilliams, and Reanne Zheng, Jenner & Block LLP, Chicago, Illinois, for Amici Curiae Public Health Experts.

Before: Marsha S. Berzon, Eric D. Miller, and Daniel A. Bress, Circuit Judges.

Dissent by Judge Berzon

BRESS, Circuit Judge:

In March 2020, toward the beginning of the COVID-19 pandemic, the plaintiffs in this case sought a preliminary injunction that would effectively place this country's network of immigration detention facilities under the direction of a single federal district court. The named plaintiffs were five detainees housed at three detention centers. But plaintiffs made allegations and requested preliminary injunctive relief that far transcended their individual circumstances. They contended that as to all of the approximately 250 immigration detention facilities nationwide, U.S. Immigration and Customs Enforcement's (ICE) directives in response to the COVID-19 pandemic reflected "deliberate indifference" to medical needs and "reckless disregard" of known health risks, in violation of the Fifth Amendment.

The district court agreed with the plaintiffs. In April 2020, it certified two nationwide classes and issued a preliminary injunction that applied to all immigration detention facilities in the United States. The injunction imposed a broad range of obligations on the federal government, including ordering ICE to identify and track detainees with certain risk factors that the district court identified; requiring ICE to issue a comprehensive Performance Standard covering a myriad of COVID-19-related topics, such as social distancing and cleaning policies; and setting directives for releasing detainees from custody altogether. Several months later, the district court issued a further order imposing more detailed requirements, such as twice-daily temperature checks, as well as procedures expressly designed to result in the release of substantial numbers of detainees from ICE custody. The government has now appealed the preliminary injunction.

We hold that the preliminary injunction must be set aside because plaintiffs have not demonstrated a likelihood of success on the merits of their claims. Our holding is a function of the sweeping relief plaintiffs sought and the demanding legal standards that governed their request. Plaintiffs did not seek individualized injunctive relief. Nor did they seek relief specific to the conditions at the detention centers in which they were housed. They instead challenged ICE's nationwide COVID-19 directives, asking a district court mid-pandemic to assume control over the top-level policies governing ICE's efforts to combat the viral outbreak. To obtain the extraordinary relief they sought, plaintiffs needed to come forward with evidence of constitutional and statutory violations on a programmatic, nationwide level. Plaintiffs did not do so.

Like many aspects of government that were potentially unprepared for a highly contagious airborne virus, ICE's initial response to the COVID-19 pandemic may have been imperfect, even at times inadequate.

But the slew of national guidance, directives, and mandatory requirements that the agency issued and then frequently updated in the spring of 2020 belies the notion that ICE acted with the "reckless disregard" necessary to support a finding of unconstitutional, system-wide deliberate indifference.

ICE's nationwide policies included instructions on sanitation, hygiene, and social distancing; treatment of detainees who may have been exposed to the virus; which programs and activities to suspend; and when to release detainees from custody because of their vulnerabilities to viral infection. Like all parts of our government, ICE took actions in the face of scientific uncertainty and a constantly developing understanding of COVID-19.

Whatever shortcomings could be discerned in ICE's mandates in the spring of 2020, plaintiffs have not shown that ICE acted with deliberate indifference in issuing extensive nationwide directives that sought to mitigate the very health risks that plaintiffs claim ICE recklessly disregarded. The district court therefore erred in entering a preliminary injunction and in assuming the authority to dictate, at both a macro and a granular level, ICE's national response to the COVID-19 pandemic.

We appreciate plaintiffs’ and the district court's concerns about the public health consequences of COVID-19 and the importance of protecting immigration detainees from harmful viral exposure. We of course share those concerns. Plaintiffs have identified COVID-19 infections among immigration detainees and have raised potentially valid questions about conditions at individual detention facilities, which other cases have likewise identified. We thus do not minimize the dangers that COVID-19 presents and the unique risks it imposes for persons in custody. The government here does not deny those risks, nor does it seek to absolve itself of responsibility for ensuring the safety of those whom it detains.

But the question here is not whether COVID-19 poses health risks to detainees generally or even the individual plaintiffs in this case. While a preliminary injunction is always an extraordinary remedy, the relief sought here was extraordinary beyond measure. Based on claimed deficiencies in ICE's national directives, plaintiffs sought a sweeping injunction that would and did place the district court in charge of setting the COVID-19 policies that apply to every immigration detention facility in the United States—for which the Executive Branch bears primary authority. As ICE was in the middle of confronting an unprecedented and evolving public health problem, it found its nationwide policies almost immediately subject to judicial revision.

Neither the facts nor the law supported a judicial intervention of that magnitude. The standards that governed plaintiffs’ request reflected not only the all-embracing relief they sought but the core principle, grounded in the separation of powers, that far-reaching intrusion into matters initially committed to a coordinate Branch requires a commensurately high showing sufficient to warrant such a significant exercise of judicial power. Plaintiffs here did not make the showing required to justify the extraordinary relief they requested.

For these reasons and those that we now explain, we reverse the preliminary injunction and direct that all orders premised on it be vacated.

I

A

ICE, an agency of the Department of Homeland Security (DHS), is tasked with detaining certain non-citizens. Some of these persons were apprehended attempting to enter the United States without authorization. 8 U.S.C. § 1225(b)(1)(A)(i), (B)(iii)(IV) ; see also id. § 1182(a). Others are in detention pending proceedings in which the government seeks to remove them from the United States, id. § 1226(a), or following orders of removal, id. § 1231(a)(1)–(2). Still others are held are under mandatory detention because they committed crimes in the United States, or on terrorism-related grounds. Id. § 1226(c).¹ In Fiscal Year 2020 through April 4, 2020, ICE reportedly held an average daily population of 42,738 adult non-citizens across a nationwide network of over 250 detention facilities.

These facilities differ...