Special To the Vanguard
SAN FRANCISCO – A nearly year-long battle to free immigrant detainees from inhumane, COVID-19 infested U.S. Immigration and Customs Enforcement (ICE) facilities in California came nearer to an end Thursday when the U.S. Court of Appeals for the Ninth Circuit reaffirmed a lower court’s finding that a claim that the facilities were unconstitutional during the pandemic because of a lack social distancing was correct.
Coincidentally, the ruling in “Angel De Jesus Zepeda Rivas v. ICE/GEO Group” dovetails with guidance by ICE Acting Director Tae Johnson that ordered all ICE offices to comply with enforcement priorities limiting detention-enforcement actions.
The appeals court rejected ICE’s argument that the lower court lacked the power to release people from custody in the face of unconstitutional conditions at the facilities. The court also said the danger from COVID-19 was “sufficiently imminent” given ICE’s failure to take adequate measures in response to the pandemic.
The class action case, Zepeda Rivas v Jennings, was filed in April by the San Francisco Public Defender’s Office, the American Civil Liberties Union Foundations of Northern California and Southern California, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and the law firms of Lakin & Wille LLP and Cooley LLP.
The plaintiffs in the case were civil immigration detainees at Mesa Verde Detention Facility in Bakersfield and Yuba County Jail in Marysville, who filed a class petition for writ of habeas 
corpus, and a class complaint for injunctive and declaratory relief.
The plaintiffs alleged “the conditions of confinement at the Facilities violated their Fifth Amendment right to due process in light of the threat posed by the COVID-19 pandemic. Through a series of orders, the district court established a system to consider individual bail applications and subsequently issued multiple bail orders granting indefinite release to over 130 detainees,” according to the court’s summary.
Through a series of orders, the district court established “a system to consider individual bail applications and subsequently issued multiple bail orders granting indefinite release to over 130 detainees,” said the Ninth Circuit Appeals Court.
The court said it concluded “plaintiffs demonstrated a likelihood of success on the merits of their conditions-of-confinement claim as of the time the district court entered its April 29 temporary restraining order, citing numerous case that noted, “The Fifth Amendment requires the government to provide conditions of reasonable health and safety to people in its custody.”
The Ninth Circuit Appeals Court noted that the “government” – ICE as well as the private GEO Group – didn’t even argue the findings by the lower court against them were wrong.
“The government does not argue these findings were clearly erroneous. Rather, addressing the conditions that existed at that time of the temporary restraining order, the government primarily argues that the lack of confirmed COVID-19 cases at the Facilities undercuts plaintiffs’ claim that they were entitled to injunctive relief.”
The court disagreed in ruling for the detainees’ claim.
Bree Bernwanger, senior staff attorney at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, who argued the appeal, said: “Today’s decision affirms that ICE cannot detain people in constitutionally unsafe conditions during the pandemic. The experiences of hundreds of people released through this case show their detention was inhumane and unnecessary.”
Myke Jonathan Cux Jocop was released from custody in Mesa Verde as the result of the lawsuit. “I was in ICE detention when my baby was born,” she said. “It is only because of this case that I have been able to come home to my partner and my newborn baby. No one should be in those horrible conditions during the pandemic.”
The Ninth Circuit court referred the appeal to a mediation program to explore a possible resolution.
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