Orrick Pro Bono Team Collaborates on Effort to Force ICE to Protect Immigrant Detainees Against COVID-19

March.25.2020

In collaboration with civil rights organizations and another law firm, an Orrick pro bono team today joined in an emergency application for a preliminary injunction in a California federal court to force Immigration and Customs Enforcement (ICE) to take immediate steps to protect people in immigration facilities from the COVID-19 virus. The motion follows the first confirmed positive case of COVID-19 of a person in ICE detention.

The motion, filed in the Central District of California, argues that if ICE does not take immediate action to ensure that medically vulnerable people are protected from COVID-19 – including providing timely access to qualified and necessary healthcare – then ICE should be ordered to release those individuals in the interest of public health.

The preliminary injunction is being sought as part of an existing class action lawsuit, Fraihat v. ICE, on behalf of the nearly 40,000 people held in ICE’s detention system. Based on first-hand observations from attorneys serving clients inside detention centers and direct reports from detainees, the current conditions are medically dangerous and fail to meet standard public health recommendations for addressing the pandemic. Today’s filing asserts that ICE has not provided even the most basic public health protections, such as reducing crowding to accommodate social distancing or providing soap and hand sanitizer, placing individuals with underlying health conditions in danger of infection and death.

The preliminary injunction, if granted, would force ICE to immediately assess medically vulnerable people for COVID-19 risk factors and either implement medically necessary precautions consistent with standards of care or release them.  Additionally, ICE would be immediately required to provide basic protections, such as providing ample soap and hand sanitizer, protocols for transporting people to hospitals and adequate testing and treatment for those with COVID-19 symptoms.

On April 20, 2020, U.S. District Judge Jesus Bernal granted the preliminary injunction, ordering 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 also certified the case as a class action. The case received widespread media coverage, including The Washington Post, CBS, NPR, Law360 and other outlets.

Orrick’s effort on the preliminary injunction was led by Orrick senior counsel Bill Alderman, partners Mark Mermelstein and Brian Goldman, and associate Jake Routhier. Orrick is teaming on the case with the Civil Rights Education and Enforcement Center, Disability Rights Advocates, the Southern Poverty Law Center and Willkie Farr & Gallagher.