Faour Fraihat v. US Imm. & Customs Enforcement

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FAOUR ABDALLAH FRAIHAT; MARCO No. 20-55634
MONTOYA AMAYA; RAUL ALCOCER
CHAVEZ; JOSE SEGOVIA BENITEZ; D.C. No.
HAMIDA ALI; MELVIN MURILLO 5:19-cv-01546-
HERNANDEZ; JIMMY SUDNEY; JOSE JGB-SHK
BACA HERNANDEZ; EDILBERTO
GARCIA GUERRERO; MARTIN
MUNOZ; LUIS MANUEL RODRIGUEZ OPINION
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.
2 FRAIHAT V. USICE

Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding

Argued and Submitted December 9, 2020
Seattle, Washington

Filed October 20, 2021

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

Opinion by Judge Bress;
Dissent by Judge Berzon
 FRAIHAT V. USICE 3

SUMMARY *

Immigration

The panel reversed the district court’s grant of a
preliminary injunction in a class action in which plaintiffs
contended that as to all immigration detention facilities
nationwide, U.S. Immigration and Customs Enforcement’s
directives in response to the COVID-19 pandemic reflected
“deliberate indifference” to medical needs and “reckless
disregard” of known health risks; and remanded with
instructions that all orders premised on the preliminary
injunction be vacated.

In April 2020, the district court entered a preliminary
injunction and provisionally certified two nationwide
subclasses: (1) ICE detainees with certain risk factors
placing them at heighted risk of severe illness and death from
COVID-19; and (2) ICE detainees whose disabilities placed
them at heighted risk of severe illness and death from
COVID-19. The district court found that plaintiffs were
likely to succeed on the merits of three claims: (1) deliberate
indifference to the medical needs of detainees, in violation
of the Fifth Amendment; (2) punitive conditions of
confinement, in violation of the Fifth Amendment; and
(3) violation of section 504 of the Rehabilitation Act,
29 U.S.C. § 794. The district court’s preliminary injunction
applied to all immigration detention facilities in the United
States and imposed a broad range of obligations on the
federal government, including ordering ICE to identify and
track detainees with certain risk factors; requiring ICE to

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 FRAIHAT V. USICE

issue a comprehensive Performance Standard covering
COVID-19-related topics, and setting directives for
releasing detainees from custody altogether. The
government appealed in June 2020, but did not seek a stay
pending appeal.

In September 2021, the parties asked to refer this case to
the Court’s mediation program. The panel denied that
request, concluding that it came much too late. Given the
substantial judicial and court resources that the parties
already required be expended on their behalf, the panel
declined their request to now use further resources in the
form of the mediation program—itself a not unlimited
resource.

On appeal, the government argued that the district court
erred both in issuing a preliminary injunction and in granting
provisional class certification. Noting that it had jurisdiction
to reach the latter issue, the panel concluded it need not do
so here. The panel explained that the district court’s class
certification ruling depended on, and was in service of, its
preliminary injunction, and therefore, if the preliminary
injunction was infirm, the class certification order
necessarily fell as well.

In concluding that the preliminary injunction must be set
aside, the panel held that plaintiffs failed to demonstrate a
likelihood of success or serious questions on the merits. The
panel wrote that neither the facts nor the law supported a
judicial intervention of the magnitude here, and that the
standards governing 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
 FRAIHAT V. USICE 5

Branch requires a commensurately high showing sufficient
to warrant such a significant exercise of judicial power.

First, the panel addressed plaintiffs’ claim that ICE
“failed to promulgate and implement medically necessary
protocols and practices to protect medically vulnerable
people” from COVID-19. The panel concluded that
plaintiffs did not make a clear showing that ICE acted with
deliberate indifference to medical needs or in reckless
disregard of health risks, explaining that the various ICE
mandates and guidance documents demonstrated that far
from recklessly disregarding the threat of COVID-19, ICE
in the spring of 2020 (and earlier) took steps to address
COVID-19. The panel also rejected plaintiffs’ contrary
arguments, which the district court had accepted, and held
that plaintiffs had not made a clear showing of entitlement
to relief commensurate with the scope of their request.

Second, the panel concluded that plaintiffs had not
shown a likelihood of success on their claim that ICE’s
COVID-19 policies reflected unconstitutional
“punishment.” The panel observed that if a particular
condition or restriction of pretrial detention is reasonably
related to a legitimate governmental objective, it does not,
without more, amount to punishment. The panel easily
concluded that there was a legitimate governmental
objective here, explaining that ICE was holding detainees
because they were suspected of having violated the
immigration laws or were otherwise removable. The panel
concluded that just as ICE’s national directives did not
reflect deliberate indifference, they did not create excessive
conditions of “punishment” either. The panel also rejected
plaintiffs’ theory that a presumption of punitive conditions
arose here.
6 FRAIHAT V. USICE

Third, the panel concluded that plaintiffs had not
established a likelihood of success on their statutory claim
under the Rehabilitation Act, which prohibits a program
receiving federal financial assistance from discriminating
based on disability. As relevant here, plaintiffs bringing a
section 504 claim must show that they were denied the
benefits of the program solely by reason of a disability.
Here, the panel concluded that plaintiffs had not identified
any “benefit” that they were denied. Plaintiffs at most
demonstrated that they were subjected to inadequate national
policies; they did not show they were treated differently
from other detainees “solely by reason” of their disabilities.

Finally, the panel concluded that because plaintiffs had
not demonstrated a likelihood of success on any claim, it
need not address the other preliminary injunction factors that
plaintiffs also would have needed to establish.

Judge Berzon dissented from both the majority’s opinion
vacating the district court’s preliminary injunction and its
order denying the parties’ joint request for mediation. Judge
Berzon wrote that, in vacating the district court’s
preliminary injunction, the majority applied incorrect
standards three times. First, the majority recited but did not
engage with the applicable sliding scale approach for
reviewing a preliminary injunction. Second, it correctly
identified but then flouted the court’s mandate to review the
grant of a preliminary injunction for abuse of discretion, not
de novo. Third, it evaluated plaintiffs’ Fifth Amendment
reckless disregard claim under a subjective, instead of the
proper, objective, standard.

Judge Berzon wrote that the majority repeatedly
characterized as “sweeping,” “far-reaching” and of great
“magnitude,” an injunction that was actually limited,
 FRAIHAT V. USICE 7

modest, and deferential to the government’s primary role in
crafting policy and administering the detention facilities.
Beyond these analytical errors, Judge Berzon concluded that
the majority did precisely what it chastised the district court
for: by declining the parties’ joint request for mediation, the
majority imposes its own will on the parties.

COUNSEL

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,
8 FRAIHAT V. USICE

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.
 FRAIHAT V. USICE 9

OPINION

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
10 FRAIHAT V. USICE

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
 FRAIHAT V. USICE 11

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
12 FRAIHAT V. USICE

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
 FRAIHAT V. USICE 13

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 in various ways. ICE owns some
of the detention facilities; others are operated under contract
with state or local agencies or government contractors.
Some of the centers are “dedicated” facilities, which hold
only ICE detainees, whereas others are “non-dedicated”
facilities, which also hold non-ICE detainees. Some
facilities are in remote or rural areas, while others are located
closer to cities. Facilities also house differing numbers of
detainees and are configured differently.

Facilities also vary based on who provides medical care.
Government employees, as part of the ICE Health Services
Corps (IHSC), provide direct medical care at twenty
facilities, which together hold about 13,500 detainees. The
remaining facilities employ medical staff that the federal
government does not directly employ. However, IHSC Field
Medical Coordinators provide oversight of the medical care
at those facilities.

1
The parties dispute whether detention under 8 U.S.C. § 1226(c) is
in fact mandatory in every circumstance. Plaintiffs filed declarations
from a former Deputy Assistant Director for Custody Programs at ICE’s
Office of Enforcement and Removal Operations and from an
immigration practitioner asserting that ICE had previously released
individuals held under “mandatory” detention “pursuant to ICE’s
guidelines and policies, particularly where the nature of their illness
could impose substantial health care costs or the humanitarian equities
mitigating against detention were particularly compelling.” We need not
decide whether the government may release individuals detained under
section 1226(c) for circumstances other than those in section 1226(c)(2).
14 FRAIHAT V. USICE

B

In December 2019, the virus SARS-CoV-2 was
identified in China as causing an outbreak of a new,
communicable respiratory illness, now known as
coronavirus disease 2019, or COVID-19. Following the
spread of the virus to the United States, the Secretary of
Health and Human Services on January 31, 2020 declared a
nationwide public health emergency.

This case focuses on ICE’s centralized actions in
response to the COVID-19 outbreak. Because plaintiffs
allege that ICE acted with deliberate indifference on a
national level, it is necessary for us to review in some detail
ICE’s system-level COVID-19 guidance and requirements.
We do so through the period leading up to the district court’s
preliminary injunction in April 2020.

1

We begin in January 2020. As an initial response to the
virus, ICE implemented applicable parts of its pre-existing
“pandemic workforce protection plan,” which “provides
specific guidance for biological threats such as COVID-19.”
That same month, DHS also issued “additional guidance to
address assumed risks and interim workplace controls,
including the use of masks, available respirators, and
additional personal protective equipment.”

By March 2020, ICE Enforcement and Removal
Operations (ERO) had convened a group of experts,
including “medical professionals, disease control specialists,
detention experts, and field operators to identify additional
enhanced steps to minimize the spread of the virus.” As
more information about the novel coronavirus became
available, ICE responded by issuing multiple guidance
 FRAIHAT V. USICE 15

documents specifically directed at reducing the risk of
COVID-19 infections among its detainee population.

On March 6, 2020, IHSC promulgated “Version 6.0” of
its “Interim Reference Sheet on 2019-Novel Coronavirus
(COVID-19).” Although this version is the only one in the
record, it is apparent that multiple previous versions existed.
This document contained six pages of “recommendations”
on managing COVID-19, including detailed procedures for
screening, monitoring, assessing, isolating, and testing
detainees.

The document first called for “intake medical screening”
to determine a detainee’s “exposure risk.” This involved
assessing whether detainees had traveled through countries
with “widespread or sustained community transmission,” as
defined by the Centers for Disease Control and Prevention
(CDC), or had “close contact” with a person confirmed to
have had COVID-19. “Close contact” was defined as “being
within approximately 6 feet (2 meters) of a COVID-19 case
for a prolonged period of time” (such as “while caring for,
living with, visiting, or sharing a healthcare waiting area or
room with a COVID-19 case”) or “having direct contact with
infectious secretions of a COVID-19 case (e.g., being
coughed on).” If a detainee had such defined “exposure
risk,” he or she was to be assessed for fever and respiratory
symptoms.

The results of IHSC’s recommended intake screening
process were to inform the facility’s subsequent actions.
Detainees with exposure risk but who did not exhibit
COVID-19 symptoms were to be monitored for fever or
respiratory complications on a daily basis for 14 days. These
detainees were to be housed “in a single cell room if
available,” or else “as a cohort.” (According to the CDC,
“[c]ohorting refers to the practice of isolating multiple
16 FRAIHAT V. USICE

laboratory-confirmed COVID-19 cases together as a group,
or quarantining close contacts of a particular case together
as a group.”) In addition, ICE detention facilities were to
document each at-risk detainee on a centralized tracking
tool, request a medical alert, and (if the detainee was not
being held at an IHSC-staffed facility) notify the Field
Medical Coordinator in charge of that facility.

Detainees with no known exposure risk but who were
symptomatic were to be considered for a possible COVID-
19 test. (Although such tests have become more widely
available, that was not the case at the beginning of the
outbreak; the IHSC document indicates that at the time it was
issued, testing through commercial laboratories had only
recently become possible.) IHSC indicated that “[d]ecisions
on which patients receive testing should be based on the
epidemiology of COVID-19, as well as the clinical course of
illness.” Additionally, “[p]roviders [we]re strongly
encouraged to test for other causes of respiratory illness,
including infections such as influenza.” The document
included a link to instructions for collecting specimens to
facilitate testing.

IHSC provided a different set of recommendations for
symptomatic detainees with known exposure risk. These
detainees were to be isolated following a detailed procedure.
A “tight-fitting surgical mask” was to be placed on the
detainee. A medical provider, “preferably the Clinical
Director or designee,” was to be “[p]romptly consult[ed],”
and the detainee was to be documented on the centralized
tracking tool. The detainee was to be placed “in a private
medical housing room, ideally in an airborne infection
isolation room if available”; if no such room was available,
the detainee was to be housed “separately from the general
 FRAIHAT V. USICE 17

detention population.” When detainees left these isolation
rooms, they “should wear a tight-fitting surgical mask.”

IHSC also recommended a system of notifications
related to this group of symptomatic detainees. For these
detainees, the local or state health department was to be
notified and consulted for guidance, and, if the detainee had
“underlying illness” or was “acutely ill,” or if symptoms did
not resolve, the ICE Regional Clinical Director or Infectious
Disease program was to be consulted. ICE healthcare staff
were also to be notified through the Infection Prevention
Officer, the Facility Healthcare Program Manager, the
Infection Prevention Group, or (for non-IHSC facilities) the
Field Medical Coordinator assigned to the facility. In turn,
ICE officials were to “immediately” “notify the Regional
Infection Prevention Supervisory Nurse.”

In bold, oversized font, the Interim Reference Sheet also
recommended implementing additional hygiene protocols
for symptomatic detainees with exposure risk. Detention
facilities should “[i]mplement strict hand hygiene and
standard, airborne and contact precautions, including
use of eye protection.” They should also “[i]ncrease hand
hygiene and routine cleaning of surfaces,” with the
guidance document noting that “[a]ppropriate personal
protective equipment includes gloves, gowns, N95
respirators, and goggles or face shields.” During the
initial screenings and in later consultations, IHSC further
recommended that facilities “[e]ducate all detainees to
include the importance of hand washing and hand hygiene,
covering coughs with the elbow instead of with hands, and
requesting sick call if they feel ill.” This recommendation is
repeated throughout the document.

Finally, the Interim Reference Sheet contained a list of
“[i]infectious disease public health actions.” Detainees with
18 FRAIHAT V. USICE

“[k]nown exposure to a person with confirmed COVID-19”
were recommended to be cohorted “with restricted
movement” for 14 days, during which time they would be
monitored for symptoms daily. Detainees with “exposure to
a person with fever or symptoms being evaluated or under
investigation for COVID-19 but not confirmed to have
COVID-19” were to be similarly cohorted and monitored for
14 days, unless the individual in question received a
diagnosis that excluded COVID-19. All such cohorting was
to be reported through IHSC’s routine protocols, and all
“asymptomatic and afebrile” detainees being cohorted were
to be documented in the tracking tool.

ICE also issued separate guidance to reduce its detainee
population where possible. On March 18, 2020, one week
after the World Health Organization first characterized the
COVID-19 outbreak as a “pandemic,” ICE issued guidance
that “directed” its Field Office Directors (FODs) and Deputy
Field Office Directors (DFODs) “to review the cases of
aliens detained in your area of responsibility who were over
the age of 70 or pregnant to determine whether continued
detention was appropriate” in light of the pandemic. The
record indicates that FODs have considerable authority
within ICE. One former FOD described his duties in that
role as “provid[ing] operational and policy oversight for
ERO’s interior enforcement efforts within the local area of
responsibility, spanning 43,000 square miles, three district
courts, a cadre of nearly 200 employees, and 1,400 detention
beds.”

2

On March 23, 2020, soon after States began issuing stay-
at-home orders for the first time, the CDC published a
document entitled “Interim Guidance on Management of
Coronavirus Disease 2019 (COVID-19) in Correctional and
 FRAIHAT V. USICE 19

Detention Facilities.” ICE soon thereafter would reference
and incorporate the CDC’s Interim Guidance in its own
directives. But we discuss the CDC’s guidance now as part
of the chronological history.

The Interim Guidance document was dedicated to
providing “recommended best practices specifically for
correctional and detention facilities,” based on “what is
currently known about the transmission and severity of
coronavirus disease 2019 (COVID-19).” The Guidance
included among its “intended audience” those “law
enforcement agencies that have custodial authority for
detained populations (i.e., US Immigration and Customs
Enforcement . . . ).” But the CDC acknowledged (in bold)
that its Guidance document did not “differentiate[]”
between “different facilities types . . . and sizes” and that
“[a]dministrators and agencies should adapt [its] guiding
principles to the specific needs of their facility.”

The CDC Interim Guidance provided approximately
20 pages of “detailed recommendations,” including on the
following topics: “Operational and communications
preparations for COVID-19”; “Enhanced
cleaning/disinfecting and hygiene practices”; “Social
distancing strategies to increase space between individuals
in the facility”; “How to limit transmission from visitors”;
“Infection control, including recommended personal
protective equipment (PPE) and potential alternatives during
PPE shortages”; “Verbal screening and temperature check
protocols for incoming incarcerated/detained individuals,
staff, and visitors”; “Medical isolation of confirmed and
suspected cases and quarantine of contacts, including
considerations for cohorting when individual spaces are
limited”; “Healthcare evaluation for suspected cases,
including testing for COVID-19”; “Clinical care for
20 FRAIHAT V. USICE

confirmed and suspected cases”; and “Considerations for
persons at higher risk of severe disease from COVID-19.”
The CDC provided extensive recommendations on each of
these topics.

A few days later, on March 27, 2020, ICE issued a six-
page memorandum containing an “Action Plan” for
addressing COVID-19, for the stated purpose of “ensur[ing]
a unified and preventative response.” The memorandum,
addressed to ICE “Detention Wardens and Superintendents,”
directly applied to dedicated or IHSC-staffed facilities. “For
intergovernmental partners and non-dedicated facilities,” the
memorandum instead deferred to governmental public
health authorities. But the Action Plan nevertheless
“recommend[ed] [the] actions contained in this
memorandum be considered as best practices” for all
facilities. The document contained guidance from various
ICE components, consisting of IHSC, ERO, Custody
Management Division (which “provides policy and
oversight for the administrative custody” of ICE detainees),
and Field Operations.

ICE’s Action Plan acknowledged that “[t]he
combination of a dense and highly transient detained
population presents unique challenges for ICE efforts to
mitigate the risk of infection and transmission.” Among
other things, the Action Plan provided guidance on how to
limit visits and gatherings within detention facilities to
reduce the risk of coronavirus introduction and spread.
Detainee visitations, in-person staff training, volunteer
visits, and non-oversight facility tours were suspended. But
in recognition of the “considerable impact of suspending
personal visitation” and the importance of detainees
“maintain[ing] community ties,” detention facilities were
advised to “maximiz[e]” detainee use of telephone,
 FRAIHAT V. USICE 21

videoconferencing, and email, “with extended hours where
possible.” Visits by contractors performing essential
services, legal visits, and presentations by legal rights groups
remained permitted, but the Action Plan provided guidance
for minimizing exposure risk from those activities.

The Action Plan addressed a variety of other topics as
well, including hygiene and social distancing practices.
Facilities were to make alcohol-based hand sanitizer
available to detainees and staff “to the maximum extent
possible.” Hand sanitizer “with at least 60 percent alcohol”
was also to “be available in visitor entrances, exits, and
waiting areas.” In addition, facilities were directed to
“implement modified operations to maximize social
distancing,” such as “staggered mealtimes and recreation
times.” The document also provided a procedure for
ensuring the safety of detainees being released from custody.

Additionally, and while referring to previously
disseminated guidance on how to screen detainees, the
March 27, 2020 Action Plan also provided detailed
instructions for “[e]nhanced health screening[s]” of ICE and
facility staff to prevent staff from bringing the virus into the
detention facility. This guidance applied to “ICE detention
facilities in geographic areas with ‘sustained community
transmission,’” as defined by the CDC. Finally, the
document explained that “[t]he CDC remains the
authoritative source for information on how to protect
individuals and reduce exposure to COVID-19,” and it
referred to multiple CDC documents, including the Interim
Guidance document discussed above.

3

On April 4, 2020, ICE replaced its March 18, 2020
detention review guidance with new guidance, entitled
22 FRAIHAT V. USICE

“COVID-19 Detained Docket Review,” that governed
determinations whether to release detainees from custody
because of the risk of COVID-19. The theory behind
reducing the detainee population was not only to remove
from detention facilities those non-citizens with particular
vulnerabilities to disease, but to create additional social
distancing opportunities for those who remained in custody.
This new April 2020 guidance was again addressed to Field
Office Directors and deputies, and it expanded the risk
factors that would prompt a review of a detainee’s continued
detention.

The April 4, 2020 Docket Review guidance listed several
categories of detainees “that should be reviewed to re-assess
custody.” This new list expanded on “a list of categories of
individuals identified as potentially being at higher-risk for
serious illness from COVID-19,” which the CDC had
previously developed. As of April 4, 2020, ICE now
directed FODs and DFODs to “re-assess” the custody of
detainees who were pregnant, who had delivered babies in
the last two weeks, who were over 60 years old, or who had
chronic, immunocompromising conditions. Conditions in
this latter category included, but were not limited to, blood
disorders, chronic kidney disease, illnesses or treatment that
would result in compromised immune systems (such as
radiation therapy or chemotherapy, transplants, or “high
doses of corticosteroids or other immunosuppressant
medications”), endocrine disorders, metabolic disorders,
heart disease, lung disease, and neurological, neurologic,
and neurodevelopment conditions.

The April 4, 2020 guidance instructed FODs and
DFODs, “[a]s part of [the] ongoing application of the CDC’s
Interim Guidance,” to “please identify all cases within your
[area of responsibility] that meet any of the criteria above
 FRAIHAT V. USICE 23

and validate that list with assistance from IHSC or your Field
Medical Coordinator.” Once a detainee was verified as
meeting one of those criteria, the Docket Review guidance
instructed officers to “review the case to determine whether
continued detention remains appropriate in light of the
COVID-19 pandemic.” However, while “[t]he presence of
one of the factors listed above should be considered a
significant discretionary factor weighing in favor of release,”
the ultimate determination was to depend on the basis for the
detainee’s detention.

The April 4, 2020 guidance explained that aliens subject
to mandatory detention under 8 U.S.C. § 1226(c) “may not
be released in the exercise of discretion during the pendency
of removal proceedings even if potentially higher-risk for
serious illness from COVID-19.” Additionally, the guidance
observed that “pursuant to [8 U.S.C. § 1231(a)(2)], certain
criminal and terrorist aliens subject to a final order of
removal may not be released during the 90-day removal
period even if potentially higher-risk for serious illness from
COVID-19.”

The document then turned to detainees being held under
discretionary detention under 8 U.S.C. § 1226(a). It
mandated that “[c]ases involving any arrests or convictions
for any crimes that involve risk to the public . . . must be
reviewed and approved by a Deputy Field Office Director
. . . or higher before a determination is made to release.” The
document provided examples of such crimes: those that
“involve[] any form of violence, driving while intoxicated,
threatening behaviors, terroristic threats, stalking, domestic
violence, harm to a child, or any form of assault or battery.”
But the guidance noted that “[t]his list is not intended to be
comprehensive.” “[T]he age of an arrest or a conviction”
could be a mitigating or aggravating factor but would not
24 FRAIHAT V. USICE

“automatically outweigh public safety concerns.”
Furthermore, citing 8 C.F.R. § 236.1(c)(8), the Docket
Review guidance reminded officers that even for non-
citizens under discretionary detention, “release is prohibited,
even if the alien is potentially higher-risk for serious illness
from COVID-19, if such release would pose a danger to
property or persons.”

Finally, the Docket Review guidance addressed
“arriving aliens and certain other aliens eligible for
consideration of parole from custody.” “[A]bsent significant
adverse factors,” that a detainee was “potentially higher-risk
for serious illness from COVID-19” may justify his release
under 8 C.F.R. § 212.5(b)(5), based on a determination that
“continued detention is not in the public interest.”
Furthermore, “field offices remain[ed] responsible for
articulating individualized custody determinations” for
“other aliens for whom there is discretion to release,” “taking
into consideration the totality of the circumstances presented
in the case.” The April 4, 2020 guidance mandated that
“[t]he fact that an alien is potentially higher-risk for serious
illness from COVID-19 should be considered a factor
weighing in favor of release.”

The record contains evidence that ICE reduced its
detainee population under the guidance described above. As
of April 10, 2020, ICE reported that it had released
693 individuals from custody after evaluating their
immigration histories and criminal records. Furthermore, in
response to the virus, ICE sought to “limit[] the intake of
new detainees being introduced into the ICE detention
system.” As a result, ICE reported a decrease in “book-ins”
of over 60 percent when comparing March 2020 to March
2019. ICE also “arrested 1,982 fewer individuals in [the]
Criminal Alien Program and 3,390 fewer at-large
 FRAIHAT V. USICE 25

individuals,” “comparing the period of 22 days before and
after March 18, 2020.” All told, by “releas[ing] . . . highly
vulnerable detainees, reducing [ICE’s] enforcement posture,
and exercising discretion on certain lower risk arrests,” ICE
reduced its detainee population from 37,662 single adults on
February 13, 2020, to 35,980 on March 13, 2020, to 31,709
on April 13, 2020.

4

On April 10, 2020, ICE ERO issued an 18-page
document entitled “COVID-19 Pandemic Response
Requirements.” “[I]ntended for use across ICE’s entire
detention network,” the Pandemic Response Requirements
“appl[ied] to all facilities housing ICE detainees” and
provided detailed instructions for managing the detainee
population in the face of COVID-19. ICE ERO explained
that these measures were “necessary” given the “seriousness
and pervasiveness of COVID-19.” Thus, ICE was
“providing guidance on the minimum measures required for
facilities housing ICE detainees to implement to ensure
consistent practices throughout its detention operations and
the provision of medical care across the full spectrum of
detention facilities to mitigate the spread of COVID-19.”

The Pandemic Response Requirements, which were also
developed in consultation with the CDC, imposed
mandatory requirements on all facilities holding ICE
detainees. 2 As the Requirements stated under “Objectives,”

2
The Pandemic Response Requirements imposed virtually identical
requirements on both dedicated and non-dedicated ICE facilities. There
were only two apparent distinctions. First, the Pandemic Response
Requirements noted that the cross-referenced March 27, 2020 Action
Plan was mandatory for dedicated facilities but not for non-dedicated
26 FRAIHAT V. USICE

ICE’s purpose in issuing them was to “establish consistency
across ICE detention facilities by establishing mandatory
requirements and best practices all detention facilities
housing ICE detainees are expected to follow during the
COVID-19 pandemic.”

The Pandemic Response Requirements began by
mandating that all facilities “must . . . [c]omply with the
CDC’s [Interim Guidance]” document, which we described
above. Furthermore, each facility “must” have its Health
Services Administrator notify the Field Office Director and
Field Medical Coordinator responsible for the facility “as
soon as practicable, but in no case more than 12 hours after
identifying any detainee who meets the CDC’s identified
populations potentially being at higher-risk for serious
illness from COVID-19.”

The Pandemic Response Requirements described those
“higher-risk” populations as “including” “[p]eople aged 65
and older” and “[p]eople of all ages with underlying medical
conditions, particularly if not well controlled.” The
specified medical conditions “includ[ed]” chronic lung
disease, moderate to severe asthma, serious heart conditions,
immunocompromising conditions, severe obesity (defined
as “body mass index . . . of 40 or higher”), diabetes, chronic
kidney disease undergoing dialysis, and liver disease.
Furthermore, each facility “must” “[r]eport all confirmed
and suspected COVID-19 cases to the local ERO Field

facilities. And second, dedicated facilities were required to notify the
local FOD and FMC by email within 12 hours of identifying a higher-
risk detainee while non-dedicated facilities were authorized to make
notifications within 12 hours either via email or some “[o]ther
standardized means of communicati[on].”
 FRAIHAT V. USICE 27

Office Director (or designee), Field Medical Coordinator,
and local health department immediately.”

The Pandemic Response Requirements additionally
“required” “all facilities housing ICE detainees” to establish
a “COVID-19 mitigation plan” to protect detainees from the
pandemic. The mitigation plan was “required” to “meet[]
the following four objectives”:

• To protect employees, contractors,
detainees, visitors to the facility, and
stakeholders from exposure to the virus;

• To maintain essential functions and
services at the facility throughout the
pendency of the pandemic;

• To reduce movement and limit
interaction of detainees with others
outside their assigned housing units, as
well as staff and others, and to promote
social distancing within housing units;
and

• To establish means to monitor, cohort,
quarantine, and isolate the sick from the
well.

Consistent with these objectives, the Pandemic Response
Requirements also imposed a wide range of additional
operational requirements that “all detention facilities
housing ICE detainees must also comply with.” These
requirements were divided into three sections.

First, under the heading “Preparedness,” the Pandemic
Response Requirements provided detailed directives on
28 FRAIHAT V. USICE

information-sharing with partner agencies, staffing, supplies
(such as soap and facemasks), hygiene, and cleaning and
disinfecting practices. In particular, the Pandemic Response
Requirements mandated that facilities follow CDC guidance
on optimizing the supply of personal protective equipment,
such as facemasks and N95 respirators. The Pandemic
Response Requirements also specified that when PPE such
as N95 masks were limited in supply, “[c]loth face coverings
should be worn by detainees and staff . . . to help slow the
spread of COVID-19.”

“Preparedness” also included requirements for ensuring
personal and facility-wide hygiene. Among other things, all
detainees and staff were to be provided “no-cost, unlimited
access to supplies for hand cleansing, including liquid soap,
running water, hand drying machines or disposable paper
towels, and no-touch trash receptacles.” Facilities were also
to “[p]rovide alcohol-based hand sanitizer with at least 60%
alcohol where permissible based on security restrictions.”
To educate detainees and staff, facilities were required to
post signage (such as that provided by the CDC) about hand
hygiene and cough etiquette in English, Spanish, and “any
other common languages for the detainee population at the
facility.”

ICE detention facilities were also required to “[a]dhere
to CDC recommendations for cleaning and disinfection,”
and the Pandemic Response Requirements provided a link to
the CDC guidance on the subject. The Pandemic Response
Requirements contain a lengthy list of
“Cleaning/Disinfecting Practices” and recommendations for
cleaning “Hard (Non-porous) Surfaces,” “Soft (Porous)
Surfaces,” “Electronics,” and “Linens, Clothing, and Other
Items That Go in the Laundry.”
 FRAIHAT V. USICE 29

Second, under the heading “Prevention,” the Pandemic
Response Requirements provided directives for screening
detainees and staff, visitation, and social distancing,
emphasizing that “[b]oth good hygiene practices and social
distancing are critical in preventing further transmission” of
COVID-19. As to screening, for example, the Requirements
detailed how facilities should screen for COVID-19
symptoms and what facilities should do when they
determined during the screening process that a detainee or
staff member may have COVID-19 exposure. As to social
distancing, the Pandemic Response Requirements discussed
various measures for sleeping, dining, and recreation that
could lead to greater physical distance between detainees
during more hours of the day.

While the Pandemic Response Requirements recognized
that “strict social distancing may not be possible in
congregate settings such as detention facilities,” it required
facilities, “to the extent practicable,” to reduce detainee
populations and population movement as part of creating
greater social distancing. Facilities specifically were
advised to “reduce the population to approximately 75% of
capacity.” The Pandemic Response Requirements also
required facilities, “[w]here possible, [to] restrict transfers
of detained non-ICE populations to and from other
jurisdictions and facilities unless necessary for medical
evaluation, isolation/quarantine, clinical care, or
extenuating security concerns.” Notwithstanding this new
guidance, continued detention review, as specified in the
April 4, 2020 “COVID-19 Detained Docket Review,”
remained ongoing.

Third, under the heading “Management,” the Pandemic
Response Requirements provided detailed instructions on
managing suspected or confirmed COVID-19 cases. All
30 FRAIHAT V. USICE

such detainees were to be isolated “immediately” with their
own individual “housing space[s] and bathroom[s] where
possible,” and were to “always wear[] a face mask (if it does
not restrict breathing) when outside of the isolation space,
and whenever another individual enters the isolation room.”
The Pandemic Response Requirements acknowledged
cohorting as an option, but it “should only be practiced if
there are no other available options.” Furthermore, “[i]f the
number of confirmed cases exceeds the number of individual
isolation spaces available in the facility, then ICE must be
promptly notified so that transfer to other facilities, transfer
to hospitals, or release can be coordinated immediately.”

The Pandemic Response Requirements also reproduced
the CDC’s list of medical isolation methods, ranging from
the most preferred option (“[s]eparately, in single cells with
solid walls (i.e., not bars) and solid doors that close fully”)
to the option of last resort (“[a]s a cohort, in multi-person
cells without solid walls or solid doors (i.e., cells enclosed
entirely with bars), preferably with an empty cell between
occupied cells”). Isolation was to be maintained, the
Pandemic Response Requirements mandated, “until all the
CDC criteria” for ending isolation have been met.

With this important background in place, we now turn to
the litigation at hand.

C

On August 19, 2019, several months before the COVID-
19 outbreak began, a group of fifteen non-citizens in
immigration detention and two non-profit organizations
filed the underlying complaint in this case against DHS, ICE,
and various DHS and ICE officials. Plaintiffs filed the case
as a putative nationwide class action on behalf of “all people
currently detained, or who in the future will be detained, in
 FRAIHAT V. USICE 31

ICE custody who are now, or will in the future be, subjected
to” certain detention conditions. The complaint broadly
alleged that the government had failed to “provide
constitutionally adequate medical and mental health care” at
ICE detention facilities, had unconstitutionally housed
detainees in near-solitary confinement, and had
discriminated against detainees with disabilities.

Months into the litigation, COVID-19 began to grip the
United States. The focus of this case then became ICE’s
handling of the pandemic. On March 24 and 25, 2020, and
before some of the ICE directives described above had been
issued, plaintiffs filed emergency motions seeking a
preliminary injunction and certification of two subclasses.
Plaintiffs sought an injunction requiring ICE, inter alia, to
identify all detainees at greater risk from COVID-19 because
of certain medical conditions, and to release all such
detainees “if medically necessary safeguards cannot be
immediately (within 24 hours) provided to ensure [their]
health and safety[] and absent an individualized finding of
dangerousness to community.”

On April 20, 2020, the district court entered a
preliminary injunction and an accompanying provisional
class certification order. Fraihat v. ICE, 445 F. Supp. 3d
709, 750–51 (C.D. Cal. 2020); Fraihat v. ICE, No. EDCV
19-1546 JGB (SHKx), 2020 WL 1932393, at *1 (C.D. Cal.
Apr. 20, 2020). The district court certified two subclasses.
2020 WL 1932393, at *1. The first subclass consisted of
“[a]ll people who are detained in ICE custody who have one
or more of the Risk Factors placing them at heightened risk
of severe illness and death upon contracting the COVID-19
virus.” Id. “Risk Factors” meant “being over the age of 55;
being pregnant; or having chronic health conditions.” Id.
32 FRAIHAT V. USICE

The class certification order defined “chronic health
conditions” as “including” the following list of conditions:

cardiovascular disease (congestive heart
failure, history of myocardial infarction,
history of cardiac surgery); high blood
pressure; chronic respiratory disease (asthma,
chronic obstructive pulmonary disease
including chronic bronchitis or emphysema,
or other pulmonary diseases); diabetes;
cancer; liver disease; kidney disease;
autoimmune diseases (psoriasis, rheumatoid
arthritis, systemic lupus erythematosus);
severe psychiatric illness; history of
transplantation; and HIV/AIDS.

Id. The second subclass consisted of “[a]ll people who are
detained in ICE custody whose disabilities place them at
heightened risk of severe illness and death upon contacting
the COVID-19 virus.” Id. The list of “Covered disabilities”
was identical to the list of “chronic health conditions.” Id.

The district court appointed five of the fifteen original
individual plaintiffs as class representatives for the
provisionally certified subclasses: Faour Abdallah Fraihat,
Jimmy Sudney, Aristoteles Sanchez Martinez, Alex
Hernandez, and Martín Muñoz. Id. At the time, Sanchez
Martinez was detained at the Stewart Detention Center in
Georgia, and Hernandez was detained at the Etowah County
Detention Center in Alabama. Fraihat, Sudney, and Muñoz
previously had been detained at the Adelanto ICE Processing
Center in California, but all three had been released by the
time the district court issued the injunction and appointed
them as class representatives.
 FRAIHAT V. USICE 33

With the exception of Sanchez Martinez, the class
representatives had lengthy criminal histories, including
convictions for manufacturing methamphetamine, robbery,
and felony hit-and-run causing death or injury. At least two
had previously been denied bond by Immigration Judges for
presenting a danger to the community, and at least one
previously had been found to be a flight risk.

Simultaneously with its class certification order, the
district court entered a preliminary injunction. 445 F. Supp.
3d at 750–51. The court found that Plaintiffs were likely to
succeed on the merits of three claims. First, ICE had likely
acted with “medical indifference in violation of the Fifth
Amendment” by failing to promulgate minimally adequate
systemwide requirements in response to the pandemic. Id.
at 742–46. The district court also noted deficiencies in
hygiene, medical care, and social distancing at certain
facilities. Id. at 728–734, 742–46.

Second, the court held that ICE’s actions likely created
“punitive conditions of confinement” in violation of the Fifth
Amendment because the conditions in ICE detention
facilities were worse than those in federal prisons. Id. at
746–47. Third, the district court found that ICE likely
violated section 504 of the Rehabilitation Act by failing to
accord detainees with disabilities a “benefit,” which the
court found was “best understood as participation in the
removal process.” Id. at 747–48.

Additionally, the district court found that plaintiffs
showed a likelihood of irreparable harm based on an increase
in COVID-19 cases among ICE detainees, a 15 percent
mortality rate for “individuals vulnerable to COVID-19” and
the possibility of “lasting consequences” for those who
contract the virus and survive, and evidence that “detained
populations tend to have worse health outcomes than the
34 FRAIHAT V. USICE

population as a whole.” Id. at 749. The district court also
found that the balance of the equities and public interest
“sharply incline[d] in Plaintiffs’ favor.” Id.

The district court entered a preliminary injunction that
ordered ICE to undertake extensive measures in response to
COVID-19. Id. at 750–51. Because it is important to
appreciate the scope of the district court’s preliminary
injunction, we quote its commands in full:

• Defendants shall provide ICE Field
Office Directors with the Risk Factors
identified in the Subclass definition;

• Defendants shall identify and track all
ICE detainees with Risk Factors. Most
should be identified within ten days of
this Order or within five days of their
detention, whichever is later;

• Defendants shall make timely custody
determinations for detainees with Risk
Factors, per the latest Docket Review
Guidance. In making their
determinations, Defendants should
consider the willingness of detainees with
Risk Factors to be released, and offer
information on post-release planning,
which Plaintiffs may assist in providing;

• Defendants shall provide necessary
training to any staff tasked with
identifying detainees with Risk Factors,
or delegate that task to trained medical
personnel;
 FRAIHAT V. USICE 35

• The above relief shall extend to detainees
with Risk Factors regardless of whether
they have submitted requests for bond or
parole, have petitioned for habeas relief,
have requested other relief, or have had
such requests denied;

• Defendants shall promptly issue a
performance standard or a supplement to
their Pandemic Response Requirements
(“Performance Standard”) defining the
minimum acceptable detention
conditions for detainees with the Risk
Factors, regardless of the statutory
authority for their detention, to reduce
their risk of COVID-19 infection pending
individualized determinations or the end
of the pandemic;

• Defendants shall monitor and enforce
facility-wide compliance with the
Pandemic Response Requirements and
the Performance Standard.

Id. at 751. These measures, the district court ordered, were
to “remain in place as long as COVID-19 poses a substantial
threat of harm to members of the Subclasses.” Id. at 751.

D

On June 19, 2020, the government timely appealed the
district court’s injunction and class certification order but did
not seek a stay pending appeal. Briefing in this appeal was
completed in early September 2020. Several weeks later, on
October 7, 2020, the district court issued a further order
granting in part plaintiffs’ motion to enforce the injunction.
36 FRAIHAT V. USICE

Fraihat v. ICE, No. EDCV 19-1546 JGB (SHKx), 2020 WL
6541994 (C.D. Cal. Oct. 7, 2020). In this order, the district
court explained that there were “several areas” of the
preliminary injunction “where clarification is warranted,”
based on the government’s non-compliance with the original
injunction. Id. at *3. Although the district court’s October
2020 order is the subject of a separate appeal, we discuss the
order here because it demonstrates the district court’s
understanding and interpretation of its earlier April 20, 2020
injunction.

In the October 7, 2020 order, the district court noted that
the government had since revised its Pandemic Response
Requirements, but the court concluded that those revisions
were inadequate. While noting it was not “enlarging the
preliminary injunction,” the district court issued substantial
clarification in three areas. Id. at *5–13.

First, explaining that “the nature of the violation is a
failure to adopt sufficiently comprehensive protocols to
protect Subclass members,” the district court’s October 7,
2020 order provided a detailed set of directives governing
the manner in which ICE was to provide medical care. Id.
at *8. We quote those in full:

• Defendants shall issue a comprehensive
Performance Standard directed to the
Subclasses within twenty days.

• Defendants shall mandate more
widespread and regular testing of the
Subclasses, consistent with CDC
Guidelines and above the level provided
by the [Bureau of Prisons] and state
prisons.
 FRAIHAT V. USICE 37

• Defendants shall develop minimum care
and hospitalization protocols for Subclass
Members who test positive.

• Defendants shall mandate that medical
isolation and quarantine are distinct from
solitary, segregated, or punitive housing,
that extended lockdowns as a means of
COVID-19 prevention are not allowed,
and that access to diversion (books,
television, recreation) and to telephones
must be maintained to the fullest extent
possible.

• Defendants shall mandate that safe
cleaning products be utilized in safe
quantities and in the manner intended for
those products. Defendants shall
promptly investigate and redress reports
of adverse reactions to harsh cleaning
products or chemical sprays.

• Defendants shall provide more
protective, and more concrete, transfer
protocols to protect the Subclasses,
including a suspension of transfers with a
narrow and well-defined list of
exceptions consistent with CDC
Guidance.

• Defendants shall mandate twice daily
screening of the Subclass members for
symptoms and temperature, consistent
with CDC recommendations and utilizing
a structured screening tool.
38 FRAIHAT V. USICE

• Defendants shall continue to update the
Performance Standard, consistent with
expert guidance and CDC Interim
Guidance, with the goal of exceeding
[Bureau of Prisons] and state prison
system response levels.

• Defendants shall ensure subsequent
iterations of the [Pandemic Response
Requirements] do not dilute or distort
CDC Interim Guidance, and shall ensure
that facility operators are promptly
notified of changes in CDC Interim
Guidance.

Id. (footnotes omitted). 3

Second, citing the government’s “weak monitoring of
facility-wide compliance with the Performance Standard,”
the district court in its October 7, 2020 order issued
clarifications and directives on the issue of “monitoring and
enforcement.” Id. at *6, *8–9. We quote those in full:

• The Facility Survey shall be immediately
and continuously updated to reflect the
most current Performance Standard, shall
include a section on Subclass member
numbers and present conditions, and shall

3
According to the district court’s preliminary injunction, the
referenced “Performance Standard” was to be a supplemented and more
comprehensive version of ICE’s Pandemic Response Requirements that
complied with the district court’s orders. 445 F. Supp. 3d at 751.
 FRAIHAT V. USICE 39

be corrected to address flaws noted by
Plaintiffs’ expert.

• Defendants shall require [Detention
Service Managers], [Detention Standards
Compliance Officers] or other trained
ICE compliance personnel to verify in
person the facility self reports. These in-
person checks should occur at least
monthly.

• Defendants shall centrally track notices
of non-compliance, action plans,
corrective action plans, and notices of
intent, and shall document their follow-
up. These documents shall be included in
the bi-weekly disclosures to Plaintiffs.

Id. at *9 (citations omitted). 4

Third, and most significantly, the district court found that
ICE had not conducted sufficiently “meaningful” custody
determinations. Id. at *9. The court was “especially
distressed that about 70% of the detained Subclass members
are not subject to mandatory detention yet have not benefited
from the Docket Review Guidance, which instructs that the
presence of a risk factor should be a significant discretionary
factor in favor of release.” Id. at *6.

4
The referenced Facility Surveys were questionnaires completed by
individual detention facility administrators that, according to the district
court, allowed “self-report[ing] [of] conditions of confinement and
degree of COVID-19 preparedness.” 2020 WL 6541994, at *4.
40 FRAIHAT V. USICE

This, the district court explained, contravened its prior
orders. The court characterized its initial injunction as
“assum[ing]” that making the Docket Review guidance
mandatory would, consistent with the court’s orders, “result
in meaningful reviews and the release of significant numbers
of Subclass members.” Id. at *10. This meant that under the
injunction, “only in rare cases would Defendants fail to
release a Subclass member not subject to mandatory
detention.” Id. But the court also indicated it had “expected
that some individuals subject to mandatory detention would
be released under the Docket Review Guidance and
Preliminary Injunction.” Id. at *11. The district court
faulted the government for failing to release more detainees,
finding that its “expect[ation]” of an “increase in releases”
since the injunction had not been fulfilled. Id.

To remedy this issue, the district court issued further
“clarifications” that it described as “necessary to achieve the
original purposes” of the injunction. Id. at *12. The court
first clarified that under the original injunction, ICE was
required to follow a two-step process for custody
determinations. Id. at *12. The district court provided this
further direction, as follows:

• The Preliminary Injunction requires
Defendants to identify and track
detainees with risk factors within five
days of their detention (step one) then to
make a “timely” custody determination
(step two).

o At step one, Defendants must
affirmatively identify and track
detainees with Risk Factors.
However, detainee medical files
might be incomplete. To account for
 FRAIHAT V. USICE 41

this likelihood, a detainee or their
counsel may promptly obtain a copy
of the medical file and may
supplement medical records at any
time. Defendants shall streamline
and clarify procedures for such
requests. Defendants’ medical
personnel shall review newly
submitted records within five days
and inform the detainee and his or her
counsel of the result.

o At step two, Defendants must
complete a “timely” custody
determination. Only in rare cases
should the determination take longer
than a week.

o Defendants shall provide notice of the
result of the custody determination to
the Subclass member and his or her
counsel. The notice shall mention the
Risk Factor(s) identified, and in cases
of non-release shall reference a basis
for continued detention in the Docket
Review Guidance.

Id. (citation omitted).

The district court then specified the manner in which ICE
was to make custody determinations, as well as the
frequency with which ICE was to release detainees. We
quote the district court’s clarifications in full:

• In order to increase compliance and
reduce detainee and attorney confusion,
42 FRAIHAT V. USICE

Defendants shall advertise and
implement consistent procedures across
field offices, for both steps outlined
above. Defendants shall ensure that the
presence of a Risk Factor is given
significant weight and that the custody
reviews are meaningful.

o Blanket or cursory denials do not
comply with the Preliminary
Injunction or with the Docket Review
Guidance’s instruction to make
individualized determinations.

o Only in rare cases should a Subclass
member not subject to mandatory
detention remain detained, and
pursuant to the Docket Review
Guidance, a justification is required.

o Subclass members subject to
mandatory detention shall also
receive custody determinations.
Defendants shall not apply the Docket
Review Guidance rule against release
of Section 1226(c) detainees so
inflexibly that none of these Subclass
members are released. Section
1226(c) Subclass members should
only continue to be detained after
individualized consideration of the
risk of severe illness or death, with
due regard to the public health
emergency.
 FRAIHAT V. USICE 43

o Defendants shall centrally track and
report in their biweekly productions
the results of the Risk Factor and
custody determinations.

o To the extent Fraihat conflicts with
another injunction regarding custody
determination practices or procedures
at particular field offices or facilities,
the other court orders take
precedence.

• The Risk Factor “Severe psychiatric
illness” includes psychiatric illnesses that
make it difficult for the individual to
participate in their own care, that make it
unlikely the individual will express
symptoms, or that increase the risk of
complications from the virus.

Id. (citation and footnote omitted).

The district court reiterated, however, that “[t]he
Preliminary Injunction and subsequent orders address only
Defendants’ systemwide response to the pandemic.” Id.
at *13. As a result, the district court went on, “[t]he case
does not opine on the lawfulness of conditions faced by any
individual detainee, nor does it determine the lawfulness of
conditions at any particular facility.” Id.

The government then filed a separate notice of appeal
from the district court’s October 7, 2020 clarification order.
After we heard oral argument in the original appeal of the
preliminary injunction and class certification orders, we
ordered that the second appeal be held in abeyance pending
the resolution of the first appeal. In the meantime, the
44 FRAIHAT V. USICE

district court has issued a further order granting plaintiffs’
motion to appoint a special master to “monitor and oversee”
ICE’s compliance with the injunction. The government has
since filed a third notice of appeal of a further order of the
district court accepting the special master’s May 21, 2021
recommendations on additional oversight of ICE relating to
the release and transfer of detainees and vaccinations.

In the meantime, and following the change in
presidential administrations, the government reiterated its
opposition to the district court’s April 20, 2020 injunction.
In a February 26, 2021 letter to this Court, the government
maintained that “individual findings of likely deliberate
indifference are not enough to show systemic harm or
enough to warrant certification of sweeping nationwide
classes or class-wide relief.” Citing “ICE’s extensive
nationwide approach and response to COVID-19,” the
government renewed its position that “ICE’s policies in
response to COVID-19” did not “violate[] due process on a
nationwide basis.”

On September 9, 2021, nine months after this case was
argued and submitted and nearly fifteen months after the
government had filed its notice of appeal, the parties asked
us to refer this case to our Court’s mediation program. This
request comes much too late, and we deny it. This matter
has long been poised for resolution on appeal. The parties
were free to resolve their dispute at any time and remain free
to reach any private agreement. But given the substantial
judicial and court resources that the parties already required
be expended on their behalf, we decline their request to now
use further court resources in the form of the Court’s
mediation program—itself a not unlimited resource. See
Ninth Circuit General Order 7.1 (“The goals of the [Circuit
mediation] program are to facilitate the voluntary resolution
 FRAIHAT V. USICE 45

of appeals in order to reduce the Court’s workload and to
offer parties an alternative to litigation to resolve their
disputes.”). Mediation is also not a sound use of court
resources when the court has already fully evaluated and
reached a decision on the merits, and when there are obvious
reasons to question whether a circuit mediator could
efficiently resolve this sprawling dispute, itself but one part
of a much larger litigation. 5

II

The government argues on appeal that the district court
erred both in issuing a preliminary injunction and in granting
provisional class certification. Although we have
jurisdiction to reach the latter issue, see Paige v. State of
California, 102 F.3d 1035, 1039 (9th Cir. 1996), we need not
do so here. The district court’s class certification ruling
depended on, and was in service of, its preliminary
injunction. If the preliminary injunction is infirm, the class
certification order necessarily falls as well, regardless of
whether class certification was otherwise proper under
Federal Rule of Civil Procedure 23.

We thus turn our attention to the district court’s
preliminary injunction. We have jurisdiction under
28 U.S.C. § 1292(a)(1) to “review for an abuse of discretion
the district court’s decision to grant a preliminary
injunction.” Ramos v. Wolf, 975 F.3d 872, 888 (9th Cir.
2020). “Within this inquiry, we review the district court’s
legal conclusions de novo and its factual findings for clear
error.” Id. In addition, “[a]n overbroad injunction is an

5
The parties’ request to refer this case to the Court’s mediation
program is thus denied. For the reasons set forth in Judge Berzon’s
dissenting opinion, Judge Berzon would grant the mediation request.
46 FRAIHAT V. USICE

abuse of discretion.” Stormans, Inc. v. Selecky, 586 F.3d
1109, 1119 (9th Cir. 2009) (quotations and alteration
omitted); see also McCormack v. Hiedeman, 694 F.3d 1004,
1019 (9th Cir. 2012); E. & J. Gallo Winery v. Gallo Cattle
Co., 967 F.2d 1280, 1297 (9th Cir. 1992).

A preliminary injunction is “an extraordinary and drastic
remedy, one that should not be granted unless the movant,
by a clear showing, carries the burden of persuasion.” Lopez
v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam)); accord Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008); California ex rel. Becerra v. Azar,
950 F.3d 1067, 1105 (9th Cir. 2020) (en banc); City &
County of San Francisco v. USCIS, 944 F.3d 773, 789 (9th
Cir. 2019)).

To obtain this relief, a plaintiff “must establish [1] that
he is likely to succeed on the merits, [2] that he is likely to
suffer irreparable harm in the absence of preliminary relief,
[3] that the balance of equities tips in his favor, and [4] that
an injunction is in the public interest.” USCIS, 944 F.3d at
788–89 (quoting Winter, 555 U.S. at 20) (alterations in
original). “Likelihood of success on the merits is the most
important factor.” California v. Azar, 911 F.3d 558, 575 (9th
Cir. 2018) (quotations omitted). In this Circuit, we also
“employ[] an alternative ‘serious questions’ standard, also
known as the ‘sliding scale’ variant of the Winter standard.”
Ramos, 975 F.3d at 887 (quoting All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011)). Under that
formulation, “‘serious questions going to the merits’ and a
balance of hardships that tips sharply towards the plaintiff[s]
can support issuance of a preliminary injunction, so long as
the plaintiff[s] also show[] that there is a likelihood of
 FRAIHAT V. USICE 47

irreparable injury and that the injunction is in the public
interest.” All. for the Wild Rockies, 632 F.3d at 1135.

The district court found that plaintiffs had established a
likelihood of success on three claims: (1) deliberate
indifference to the medical needs of detainees, in violation
of the Fifth Amendment; (2) punitive conditions of
confinement, also in violation of the Fifth Amendment; and
(3) a violation of section 504 of the Rehabilitation Act,
29 U.S.C. § 794. 445 F. Supp. 3d at 741–48. We hold,
however, that plaintiffs failed to demonstrate a likelihood of
success or serious questions on the merits of any of these
claims. We address each in turn.

III

We begin with plaintiffs’ primary claim that ICE “failed
to promulgate and implement medically necessary protocols
and practices to protect medically vulnerable people” from
COVID-19, and that this failure amounted to deliberate
indifference in violation of the Fifth Amendment. We
conclude that plaintiffs have not shown a likelihood of
success or serious questions on the merits of this claim, and
that the district court’s determination otherwise turned on a
misapprehension of the governing legal standards.

A

Demonstrating deliberate indifference requires a
substantial showing. Plaintiffs must establish the following:

(i) the defendant made an intentional decision
with respect to the conditions under which
the plaintiff was confined; (ii) those
conditions put the plaintiff at substantial risk
of suffering serious harm; (iii) the defendant
48 FRAIHAT V. USICE

did not take reasonable available measures to
abate that risk, even though a reasonable
official in the circumstances would have
appreciated the high degree of risk
involved—making the consequences of the
defendant’s conduct obvious; and (iv) by not
taking such measures, the defendant caused
the plaintiff’s injuries.

Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir.
2018).

In substance, the government focuses on the third
element, which requires plaintiffs to show that defendants’
conduct was “objectively unreasonable.” Id. To establish
objective unreasonableness, a plaintiff must “prove more
than negligence but less than subjective intent—something
akin to reckless disregard.” Id. (quoting Castro v. County of
Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc));
see also, e.g., Roman v. Wolf, 977 F.3d 935, 943 (9th Cir.
2020) (per curiam).

The “reckless disregard” standard is a formidable one.
See, e.g., Roman, 977 F.3d at 947 (Miller, J., concurring in
part and concurring in the judgment) (describing “reckless
disregard” as a “high standard”). Neither “mere lack of due
care,” nor “an inadvertent failure to provide adequate
medical care,” nor even “[m]edical malpractice,” without
more, is sufficient to meet this standard. Estelle v. Gamble,
429 U.S. 97, 105–06 (1976); Gordon, 888 F.3d at 1125;
Castro, 833 F.3d at 1071; see also Roman, 977 F.3d at 947
(Miller, J., concurring in part and concurring in the
judgment) (“Although the word ‘reasonable’ might be taken
to suggest something akin to the duty of reasonable care
applied in negligence cases, the standard is more demanding
than that . . . .”). Instead, a plaintiff must show that the
 FRAIHAT V. USICE 49

defendant “disregard[ed] an excessive risk” to the plaintiff’s
health and safety by failing to take “reasonable and available
measures” that could have eliminated that risk. Castro,
833 F.3d at 1070–71 (quoting Estate of Ford v. Ramirez-
Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002)).

The scope of the plaintiffs’ allegations and the nature of
their requested relief also necessarily inform our analysis.
See Gordon, 888 F.3d at 1125 (explaining that whether the
government’s conduct was “objectively unreasonable” “will
necessarily turn on the facts and circumstances of each
particular case” (quotations omitted and alteration
accepted)). In many cases alleging unconstitutional
deliberate indifference to medical needs, the plaintiff seeks
relief as to himself, based on his own medical circumstances.
See, e.g., Gamble, 429 U.S. at 99–106; Mendiola-Martinez
v. Arpaio, 836 F.3d 1239, 1243–46 (9th Cir. 2016); Long v.
County of Los Angeles, 442 F.3d 1178, 1181–86 (9th Cir.
2006); Toguchi v. Chung, 391 F.3d 1051, 1055–56 (9th Cir.
2004). In some cases, the plaintiffs seek relief on behalf of
a larger group, but one nonetheless bounded by a more
narrowly drawn common experience, such as conditions at a
particular facility. See, e.g., Roman, 977 F.3d at 939
(conditions at the Adelanto ICE Processing Center);
Disability Rights Mont., Inc. v. Batista, 930 F.3d 1090,
1093–96 (9th Cir. 2019) (conditions at the Montana State
Prison).

More unusually here, in contrast, the basis for plaintiffs’
request and the district court’s injunction was not the
individual circumstances of any detainee or the conditions at
any ICE facility. Given the inevitable differences in the
medical vulnerabilities of individual detainees and the
material differences across the approximately 250 detention
facilities nationwide, plaintiffs’ premising their requested
50 FRAIHAT V. USICE

injunctive relief on these grounds would have created
understandable problems in justifying a nationwide
injunction and nationwide classes.

Instead, and in an effort to match the broad relief they
sought, plaintiffs focused on the asserted unconstitutionality
of ICE’s nationwide directives, issued through the policy
documents we chronicled above at length. See Brown v.
Plata, 563 U.S. 493, 499–506, 505 n.3 (2011) (exposure of
prisoners to substantial risk of serious harm through
statewide policies and practices); Parsons v. Ryan, 754 F.3d
657, 662–68, 676–78 (9th Cir. 2014) (same). The district
court’s order granting a preliminary injunction thus focused
on these same ICE policy documents, as well as “several
additional global failures” that also were premised on the
documents. 445 F. Supp. 3d at 743–45. As the district court
thus made clear in its October 2020 order enforcing the
injunction, “the nature of the violation is a failure to adopt
sufficiently comprehensive protocols to protect Subclass
members.” 2020 WL 6541994, at *8. In this sense,
plaintiffs’ constitutional challenge is necessarily more
abstract, yet more far-reaching, than a challenge to
individual or facility-specific conditions of confinement.

Based on our careful review of ICE’s March and April
2020 directives, we conclude that plaintiffs have not made
“a clear showing” that in responding to the evolving and
unprecedented COVID-19 pandemic, ICE acted with
“deliberate indifference” to medical needs or in “reckless
disregard” of health risks. California v. Azar, 911 F.3d at
575; Gordon, 888 F.3d at 1125. We chronicled the various
ICE mandates and guidance documents at some length above
because they show why plaintiffs cannot establish a
likelihood of success on the merits.
 FRAIHAT V. USICE 51

Those documents demonstrate that far from recklessly
disregarding the threat of COVID-19, ICE in the spring of
2020 (and earlier) took steps to address COVID-19. In
particular, the March 6, 2020 IHSC Interim Reference Sheet,
March 27, 2020 ICE Action Plan, April 4, 2020 Docket
Review guidance, and April 10, 2020 ICE ERO Pandemic
Response Requirements collectively provided a detailed set
of directives on a host of topics relevant to mitigating the
risks of COVID-19. These topics included: screening of
detainees and staff for COVID-19 symptoms and exposure
risk; monitoring, tracking, and reporting of detainees who
had possible viral exposure; housing, cohorting,
quarantining, and testing of detainees who may have
developed COVID-19; hygiene practices, such as mask-
wearing and sanitization; social distancing policies for
sleeping, mealtimes, recreation periods, and otherwise;
health education of detainees and staff; adherence to
additional CDC Interim Guidance; release of detainees, with
priority for those who had greater susceptibility to COVID-
19 infection; limits on outside visits to detention facilities;
development of facility-specific mitigation plans; and so on.

The April 10, 2020 ICE ERO Pandemic Response
Requirements—which was ICE’s most recent directive prior
to the district court’s injunction and which ICE issued after
plaintiffs had already sought preliminary injunctive relief—
bears particular mention. The Pandemic Response
Requirements made compliance with the CDC Interim
Guidance mandatory for all ICE detention facilities and
instituted a system for reporting at-risk detainees or
suspected or confirmed COVID-19 cases on an expedited
timeframe. It also contained mandatory, detailed
requirements for provision of hygiene supplies, PPE, and
signage; procedures for cleaning various surfaces and
common items; screening detainees and staff; and detainee
52 FRAIHAT V. USICE

housing protocols, including social distancing, cohorting,
and medical isolation methods. It further required each
facility to establish a mitigation plan dedicated to protecting
detainees.

The Supreme Court long ago reminded us that “[a]ny
rule of constitutional law that would inhibit the flexibility of
the political branches of government to respond to changing
world conditions should be adopted only with the greatest
caution.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).
Particularly in the face of scientific uncertainty about
COVID-19—and with due consideration for the Executive
Branch’s preeminent role in managing immigration
detention facilities and its greater institutional competence
in this area, see Bell v. Wolfish, 441 U.S. 520, 548 (1979);
Roman, 977 F.3d at 947 (Miller, J., concurring in part and
concurring in the judgment)—we cannot conclude that
ICE’s directives are the stuff of deliberate indifference.
Updated over time to account for improved understandings
of an unprecedented global pandemic, ICE’s documents
reflect a mobilized effort to address what ICE acknowledged
was the “seriousness and pervasiveness of COVID-19.”

As a result, whether one would characterize ICE’s spring
2020 policy response to COVID-19 as strong, fair, needing
improvement, or something else, it simply cannot be
described in the way that matters here: as a reckless
disregard of the very health risks it forthrightly identified
and directly sought to mitigate. The district court’s
determination that ICE’s national directives reflected a
“callous indifference to the safety and wellbeing of the
 FRAIHAT V. USICE 53

Subclass members,” 445 F. Supp. 3d at 745, is therefore not
supported. 6

B

Plaintiffs’ contrary arguments, which the district court
accepted, do not demonstrate otherwise. To the extent
plaintiffs have come forward with evidence suggesting that
ICE might have approached the pandemic more effectively
in the spring of 2020, plaintiffs have not shown that ICE’s
national policies reflected deliberate indifference or reckless
disregard of COVID-19.

First, plaintiffs argued, and the district court agreed, that
ICE had unreasonably delayed in issuing nationwide
directives to detention facilities. 445 F. Supp. 3d at 744–45.
For example, the district court faulted the government for
“promulgat[ing] only non-binding guidance for the first
month of the pandemic” and for “unreasonably delay[ing]
taking steps that would allow higher levels of social
distancing in detention.” Id. at 743–44. But this does not
demonstrate deliberate indifference.

It may be that ICE could have moved more expeditiously
in engaging the threat that COVID-19 posed. But ICE began
addressing that issue in January 2020, and was addressing it
in earnest by March 2020, when it issued the IHSC Interim
Reference Sheet and ICE Action Plan. COVID-19 presented
a public health crisis unlike any that we have encountered in
our time. See, e.g., Hope v. Warden York Cnty. Prison,

6
Our fine dissenting colleague maintains we have applied a
subjective intent standard. That is not correct. The standard, as we have
indicated, is an objective one, and we have considered ICE’s policies
through that lens.
54 FRAIHAT V. USICE

972 F.3d 310, 330 (3d Cir. 2020) (“COVID-19 presents
highly unusual and unique circumstances that have radically
transformed our everyday lives in ways previously
inconceivable and have altered our world with lightning
speed and unprecedented results.” (quotations and citations
omitted and alterations accepted)). Plaintiffs have not
demonstrated that ICE’s response to the pandemic in the
spring of 2020 materially trailed that of the many other areas
of government that were confronting this challenging new
problem at the same time.

Regardless, ICE’s earlier delays in addressing COVID-
19 did not demonstrate deliberate indifference on an ongoing
basis. “[T]o establish eligibility for an injunction,
[plaintiffs] must demonstrate the continuance of
[defendants’] disregard during the remainder of the litigation
and into the future.” Farmer v. Brennan, 511 U.S. 825, 846
(1994). If ICE’s prior delays had led to harm, that injury
might be redressable in court. But the relief sought here is
injunctive in nature. And plaintiffs have not explained how
ICE’s allegedly being slow out of the gate could justify
preliminary injunctive relief if ICE’s national policies at the
time of the injunction did not reflect deliberate indifference.
See id. at 846 n.9 (observing that defendants “could prevent
issuance of an injunction by proving, during the litigation,
that they were no longer unreasonably disregarding an
objectively intolerable risk of harm and that they would not
revert to their obduracy upon cessation of the litigation”).

Second, the district court found special fault with ICE’s
March 6, 2020 IHSC Interim Reference Sheet. 445 F. Supp.
3d at 743, 745. The district court explained that “Plaintiffs
raise serious questions about the reasonableness of the IHSC
guidance at the time it was promulgated and updated”
because, among other things, “[t]he IHSC guidance omits
 FRAIHAT V. USICE 55

aspects of the CDC recommendations” and “did not more
strongly recommend social distancing.” Id. at 745. These
observations, however, did not support a finding of
deliberate indifference.

We discussed the IHSC Interim Reference Sheet in detail
above. That document provided extensive recommended
protocols for intake medical screening, monitoring of
detainees with exposure risk (both those with symptoms and
those who presently lacked them), quarantining, and
cohorting of detainees. Once again, whatever limitations
might be detected in this “interim” set of policies does not
demonstrate a reckless disregard of COVID-19. The Interim
Reference Sheet instead reflects an effort, ongoing in nature,
to address viral exposure through recommended
implementation of concrete procedures.

Several weeks later, moreover, ICE would issue the
April 10, 2020 ICE ERO Pandemic Response Requirements,
which directed that all ICE facilities “must” comply with the
CDC’s Interim Guidance on COVID-19 and which
contained a section detailing “Additional Measures to
Facilitate Social Distancing.” While the district court
questioned “whether the issuance of non-binding
recommendations is an objectively ‘reasonable’ response to
a pandemic,” it acknowledged that the Pandemic Response
Requirements “set forth ‘mandatory requirements’ for all
facilities housing ICE detainees.” Id. at 724, 744. That ICE
was updating its policies during the preliminary injunction
proceedings and mid-pandemic also underscores the
difficulty plaintiffs face in showing that ICE’s policies
reflected deliberate indifference on a nationwide level. The
reckless disregard standard did not permit the district court
56 FRAIHAT V. USICE

to scrutinize ICE’s national policies at the level that it did.
See Wolfish, 441 U.S. at 539, 547–48. 7

Third, the district court agreed with plaintiffs that ICE
had “fail[ed] to take measures within ICE’s power to
increase the distance between detainees.” Id. at 745. But
plaintiffs did not thereby demonstrate ICE’s deliberate
indifference to the risks of COVID-19.

There are understandable constraints in imposing social
distancing measures in a detention facility consistent with
other necessary governmental objectives, such as security
and the need to place certain persons in custody. See, e.g.,
Wolfish, 441 U.S. at 540 (“The Government . . . has
legitimate interests that stem from its need to manage the
facility in which the individual is detained.”). Even so, as
detailed in the various ICE directives from March and April
2020, ICE recommended and ordered extensive social
distancing measures, which included releasing some persons
from detention altogether.

Most notably, the April 10, 2020 Pandemic Response
Requirements mandated that ICE facilities “must” adopt the
CDC Guidelines, which included the requirement to
“[i]mplement social distancing strategies to increase the
physical space between incarcerated/detained persons.”
Moreover, the Pandemic Response Requirements directed

7
Like the district court, the dissent flyspecks ICE’s policies to the
point of criticizing its use of particular words or phrases, like “please,”
“ideally,” and “efforts should be made,” while chastising ICE for
acknowledging the realistic difficulties associated with achieving
complete social distancing in custodial settings. These critiques are
inconsistent with the reckless disregard standard and the deference owed
to the government in its operation of immigration detention centers mid-
pandemic.
 FRAIHAT V. USICE 57

that “all facilities housing ICE detainees should implement
. . . to the extent practicable” a detailed list of “Additional
Measures to Facilitate Social Distancing.” These measures,
which reiterated many of the CDC’s recommended social
distancing strategies, consisted of the following required
actions, which we quote in full:

• Efforts should be made to reduce the
population to approximately 75% of
capacity.

• Where detainee populations are such that
such cells are available, to the extent
possible, house detainees in individual
rooms.

• Recommend that detainees sharing
sleeping quarters sleep “head-to-foot.”

• Extend recreation, law library, and meal
hours and stagger detainee access to the
same in order to limit the number of
interactions between detainees from other
housing units.

• Staff and detainees should be directed to
avoid congregating in groups of 10 or
more, employing social distancing
strategies at all times.

• Whenever possible, all staff and
detainees should maintain a distance of
six feet from one another.

• If practicable, beds in housing units
should be rearranged to allow for
58 FRAIHAT V. USICE

sufficient separation during sleeping
hours.

Taken together, ICE’s national policies in the spring of 2020,
including adoption of CDC Guidelines, did not reflect
reckless disregard of the very social distancing approaches
they sought to implement. 8 While we do not suggest these
policies are impervious to criticism, they did not
demonstrate deliberate indifference to medical needs.

Fourth, the district court found plaintiffs had met their
burden because “Defendants have not provided even
nonbinding guidance to detention facilities specifically
regarding medically vulnerable detainees, pending
individualized determinations of release or denial of
release.” 445 F. Supp. 3d at 744. This finding appears to
have been the root of that portion of the district court’s
injunction requiring ICE to undertake various actions as to
those detainees with certain “Risk Factors” that the district
court specified. Id. at 750–51.

We conclude, however, that plaintiffs did not meet their
burden of demonstrating deliberate indifference on this front
either because the district court’s determination otherwise

8
The dissent claims that in Roman, we held that the CDC Guidelines
“do not provide a workable standard.” 977 F.3d at 946. But the dissent
leaves out the rest of the quoted sentence in that case, which states that
the CDC Guidelines “do not provide a workable standard for a
preliminary injunction.” Id. (emphasis added). In Roman, we vacated a
district court’s COVID-19–related preliminary injunction that applied to
just a single immigration detention facility. Id. at 945. And in the course
of doing so, we advised the district court not to base any renewed
injunction for that particular facility on the CDC Guidelines. Id. We
certainly did not say in Roman that the CDC Guidelines were
unworkable as national policy, which is how ICE is using them here.
 FRAIHAT V. USICE 59

was premised on legal error and a misapprehension of ICE’s
policies. As an initial matter, and contrary to suggestions in
the district court’s decision, ICE’s mandatory Pandemic
Response Requirements did consider whether certain
detainees were at higher risk of developing serious illness
from COVID-19 based on certain identified factors, such as
age and preexisting health conditions. ICE made this the
focus of its determinations whether to release certain
detainees from custody, as well as various internal reporting
requirements. ICE also directed, for example, that if
facilities lacked adequate capacity to house confirmed
COVID-19 cases individually, “the facility must be
especially mindful of cases that are at higher risk of severe
illness from COVID-19” to “prevent transmission” to the
“higher-risk individual.”

To the extent the district court believed it was necessary
for ICE to develop hygiene and other practices specific to
persons with greater vulnerability to COVID-19, the
government responds that the guidance ICE issued applied
to all detainees, which included those at greater risk from
COVID-19. The government’s chosen approach does not
reflect deliberate indifference.

ICE developed its policies based on its knowledge of
how immigration detention facilities functioned and in
consultation with the CDC. It may be that plaintiffs, their
experts, and the district court have identified an alternative
strategy that ICE could have pursued and that would have
been more effective. But “a mere difference of medical
opinion is insufficient, as a matter of law, to establish
deliberate indifference.” Toguchi, 391 F.3d at 1058
(quotations omitted and alterations accepted). Nor can the
constitutional line be drawn based on “a court’s idea of how
best to operate a detention facility.” Wolfish, 441 U.S. at
60 FRAIHAT V. USICE

539. The deliberate indifference standard recognizes that the
Executive must have some discretion in addressing a
complex problem like the one before us; plaintiffs’ and the
district court’s approach do not account for that. Cf. Swain
v. Junior, 961 F.3d 1276, 1289 (11th Cir. 2020) (“We simply
cannot conclude that, when faced with a perfect storm of a
contagious virus and the space constraints inherent in a
correctional facility, the defendants here acted unreasonably
. . . .”). 9

Finally, and for similar reasons, the district court erred
in determining that ICE’s policies for releasing detainees
were “objectively unreasonable,” and in finding that ICE
acted with deliberate indifference in not adhering to

9
The dissent attempts to suggest that the district court’s injunction
was “limited” because it only applied to “medically vulnerable
detainees.” But the certified classes comprised persons with the Risk
Factors that the district court identified, which consisted of anyone over
age 55 or who had a wide range of different health issues, including
conditions such as high blood pressure and asthma. The district court
itself explained that “general knowledge and common sense indicate that
the class is large.” Fraihat, 445 F. Supp. 3d at 736 (quotations and
brackets omitted). And by the district court’s determination, the classes
consist of persons “at immigration detention facilities across the
country,” so that any injunction would operate “across all facilities.” Id.
at 719, 738. These statements belie the dissent’s effort to minimize the
import of the district court’s injunction, while confirming that in ordering
ICE to follow certain directives for those detainees with “Risk Factors,”
the district court’s disagreement with ICE’s approach to the pandemic
was not somehow a limited one.

The dissent similarly maintains that “[t]he district court’s injunction
did not create a nationwide policy,” but “mandated only that ICE change
its own nationwide policies.” But that is a distinction without a
difference. It is obvious that the preliminary injunction imposed on ICE
extensive directives that the district court devised, subject to the district
court’s continuing oversight.
 FRAIHAT V. USICE 61

procedures that would result in the release of more detainees.
445 F. Supp. 3d at 745. The district court concluded that
ICE’s Docket Review guidance improperly failed to contain
“a strong presumption of release.” Id. In its later October 7,
2020 order, the district court elaborated that its initial
injunction was intended to “result in meaningful reviews and
the release of significant numbers of Subclass members,” so
that “only in rare cases would Defendants fail to release a
Subclass member not subject to mandatory detention.” 2020
WL 6541994, at *10 (emphasis added). The district court
further clarified that it had “expected that some individuals
subject to mandatory detention would be released.” Id. at
*11.

Plaintiffs have not demonstrated a likelihood of success
in obtaining such extraordinary relief on a system-wide
basis. While “the district court’s power to grant injunctive
relief included the authority to order a reduction in
population, if necessary to remedy a constitutional
violation,” Roman, 977 F.3d at 942, compelled release of
detainees is surely a remedy of last resort, see, e.g., Hope,
972 F.3d at 333 (characterizing release of immigration
detainees as “the most extreme” remedy); see also Plata,
563 U.S. at 500–01. The same is true of a judicial decree
ordering the government to adhere to procedures with the
expectation and understanding that they will result in greater
release of detainees. And, in all events, the availability of
any of this relief necessarily turns on “the antecedent
question whether the government has acted with ‘reckless
disregard.’” Roman, 977 F.3d at 947 (Miller, J., concurring
in part and concurring in the judgment).

In this case, plaintiffs did not demonstrate that the mere
fact of their detention amounted to deliberate indifference.
It is undisputed that the government has the authority to
62 FRAIHAT V. USICE

detain those in the plaintiff class. See 8 U.S.C. §§ 1225(b),
1226(a), (c), 1231(a). Nor did the conditions of
confinement, as reflected in ICE’s nationwide policy
directives, provide a basis for the district court effectively to
order the release of substantial numbers of immigration
detainees.

The same was true of the district court’s directives
requiring ICE to adhere to more stringent custody review
determinations that reflected a “strong presumption of
release.” Fraihat, 445 F. Supp. 3d at 745. Cross-referencing
the April 4, 2020 Docket Review guidance, the mandatory
Pandemic Response Requirements stated that ICE ERO
“will review” detainees at higher risk of illness “to determine
whether continued detention is appropriate.” That the
plaintiffs and district court may have desired more detainees
be released, and on a potentially quicker basis, does not
mean that the government’s approach—which involved
early release determinations—reflected reckless disregard
on a national basis.

The Supreme Court has recognized that “judicial
deference to the Executive Branch is especially appropriate
in the immigration context.” INS v. Aguirre-Aguirre,
526 U.S. 415, 425 (1999). And “the operation of our
correctional facilities is peculiarly the province of the
Legislative and Executive Branches of our Government, not
the Judicial.” Wolfish, 441 U.S. at 548; see also Mirmehdi
v. United States, 689 F.3d 975, 984 (9th Cir. 2012) (“[T]he
decision to detain an alien pending resolution of immigration
proceedings is explicitly committed to the discretion of the
Attorney General . . . .”), as amended (June 7, 2012). When
combined with the exigencies of a global pandemic, these
core principles, grounded in the Constitution’s separation of
powers, must in this context necessarily inform the
 FRAIHAT V. USICE 63

deliberate indifference standard and the scope of appropriate
injunctive relief.

For the reasons we have explained, plaintiffs have not
demonstrated a likelihood of success or serious questions
going to the antecedent constitutional violation that would
justify any of the relief they were seeking, much less a
judicial decree effectively directing the United States to
release persons whom it was lawfully detaining. That is
especially the case in view of ICE policies that already
enabled the discretionary release of detainees with greater
susceptibility to COVID-19—policies which, at the time of
the injunction, had already led to the release of many
detainees. On this record, there is no basis to conclude that
to avoid acting with deliberate indifference, the Executive
Branch was required to release large numbers of detainees
held under proper authority.

The dissent for its part attempts to save the district
court’s nationwide injunction by downplaying its
significance, calling the injunction “limited, modest, and
deferential.” Suffice it to say, that is not an apt description
of the injunction before us, which imposed far-ranging
court-ordered directives on the Executive Branch during a
pandemic. That is why the district court itself (accurately)
viewed plaintiffs as “claim[ing] entitlement to a
comprehensive response to the pandemic,” and why the
district court viewed the issue in this case as whether ICE’s
“global response” to the pandemic was “adequate.” Fraihat,
445 F. Supp. at 738–39; see also id. at 742 n.25 (district court
“reject[ing] the implication that it lacks authority to enter
class-wide relief to require a constitutionally adequate
response to COVID-19 from ICE”).

Nor can the import of the district court’s injunction be
minimized on the theory that the injunction operated on
64 FRAIHAT V. USICE

ICE’s policies and not the detention centers themselves. The
policies govern the detention centers. There is no dispute
that plaintiffs “claim Defendants have failed to ensure
minimum lawful conditions of confinement at immigration
detention facilities across the country,” and that the district
court’s injunction therefore operates “across all facilities.”
Fraihat, 445 F. Supp. 3d at 719, 738. To say that the
injunction bears upon the policies in the first instance is only
to underscore the magnitude of both the relief plaintiffs
sought and the district court’s error in concluding that
plaintiffs had shown that ICE acted with reckless disregard
to COVID-19 on a national level.

C

Perhaps recognizing that the district court’s injunction
cannot be maintained based on ICE’s policy directives,
plaintiffs devote extensive effort to detailing the conditions
at certain ICE facilities. In this regard, plaintiffs have
pointed to potential shortcomings in the on-the-ground
COVID-19 response at individual detention facilities in
spring 2020.

Whether those shortcomings would rise to the level of a
constitutional violation, however, is a different question.
See Gordon, 888 F.3d at 1125. And whether those
conditions persist today, over a year after plaintiffs first
sought injunctive relief, is yet another question,
underscoring the difficulties with issuing injunctive relief
about detention conditions in the midst of a fast-moving
pandemic, where improved scientific knowledge leads to
updated approaches over time. See Roman, 977 F.3d at 945–
46 (vacating provisions of a preliminary injunction ordering
specific COVID-19 measures at Adelanto where
“circumstances have changed dramatically” since the time
of the injunction). In this case, moreover, most of the named
 FRAIHAT V. USICE 65

plaintiffs who sought the injunction are no longer in custody
at all and were not detained at least as of July 2020. 10

The more fundamental point, however, is that conditions
at individual detention facilities cannot support the
injunction that plaintiffs sought. While the district court
discussed conditions at certain ICE facilities, as described by
detainees and other visitors to detention facilities, 445 F.
Supp. 3d at 728–34, the district court did not base its
injunction on this evidence, some of which it characterized
as “anecdotal,” id. at 728. Instead, the district court was
clear that it was the claimed deficiencies in ICE’s nationwide
directives that justified a nationwide injunction and
nationwide classes.

“[T]he common question driving this case,” the district
court explained, is the adequacy of “Defendants’ system-
wide response” to the pandemic. Id. at 737. Accordingly,
the district court’s analysis focused on ICE’s “decision to
promulgate . . . guidance” and its purported “systemwide
inaction.” Id. at 743. In its later order enforcing the
injunction, the district court reiterated that “[t]he Preliminary
Injunction and subsequent orders address only Defendants’
systemwide response to the pandemic.” 2020 WL 6541994,
at *13. The district court thus was clear that its preliminary
injunction order “does not opine on the lawfulness of
conditions faced by any individual detainee, nor does it

10
Although we do not reach the question of irreparable harm, we
note that the dissent’s perception of that issue turns on its unsupported
determination that ICE’s national policies reflected reckless disregard,
and that the district court’s solution to the situation was more likely to
ameliorate harm than ICE’s own policies. The dissent also questions the
accuracy of the central statistic on which it relies.
66 FRAIHAT V. USICE

determine the lawfulness of conditions at any particular
facility.” Id.

The district court’s disclaimer was understandable
because the circumstances at individual detention facilities
could not justify the broad, nationwide relief that plaintiffs
pursued. By seeking an injunction based on ICE’s allegedly
unconstitutional “systemwide” response, plaintiffs
necessarily attacked ICE’s detention policies at every one of
its more than 250 facilities across the country. Yet the five
class representatives had been detained at only three
facilities.

The government persuasively argues that given the
material differences across ICE facilities—including their
size, layout, health care capabilities, whether they also
housed non-ICE detainees, and so on—the nature of the
injunctive relief plaintiffs sought could not be justified based
on evidence about conditions at individual facilities. On this
record, that position is well-taken.

A federal court must “tailor[] a remedy commensurate
with the . . . specific violations” at issue in a case, and it errs
where it “impose[s] a systemwide remedy going beyond
[the] scope” of those violations. Lewis v. Casey, 518 U.S.
343, 359 (1996) (quoting Dayton Bd. of Educ. v. Brinkman,
433 U.S. 406, 417 (1977)); accord California v. Azar,
911 F.3d at 584 (“The scope of an injunction . . . must [be]
tailor[ed] . . . ‘to meet the exigencies of the particular case.’”
(quoting Trump v. Int’l Refugee Assistance Project, 137 S.
Ct. 2080, 2087 (2017) (per curiam))). “[O]nly if there has
been a systemwide impact may there be a systemwide
remedy.” Flores v. Huppenthal, 789 F.3d 994, 1005–06 (9th
Cir. 2015) (alteration in original) (quoting Casey, 518 U.S.
at 359–60).
 FRAIHAT V. USICE 67

Plaintiffs have not demonstrated that the conditions at
their individual facilities support a showing that ICE has
acted with deliberate indifference or reckless disregard as to
the approximately 250 immigration detention facilities
nationwide. In this case, moreover, the declarations upon
which the district court relied to support the preliminary
injunction all were dated in March 2020, which was prior to
the April 10, 2020 Pandemic Response Requirements, ICE’s
most significant operative guidance at the time the district
court entered its injunction. See 445 F. Supp. 3d at 728–34.
And while plaintiffs attempted to submit additional
declarations in a filing that the district court denied as moot,
those facility-specific declarations—which were prepared
only several days after the mandatory Pandemic Response
Requirements were issued and included discussion of events
prior to that time—do not show deliberate indifference on a
system-wide basis either. Indeed, the CDC’s own guidance
acknowledged differences in “facility types . . . and sizes”
and specified that “[a]dministrators and agencies should
adapt these guiding principles to the specific needs of their
facility.”

For these reasons, plaintiffs’ reliance on our decisions in
Roman v. Wolf, 977 F.3d 935 (9th Cir. 2020) (per curiam),
and Zepeda Rivas v. Jennings, 845 F. App’x 530 (9th Cir.
2021), is misplaced. In Roman, plaintiffs challenged only
the conditions of confinement at one immigration detention
facility, Adelanto, and they sought an injunction only with
respect to that facility’s handling of COVID-19. 977 F.3d
at 939. The district court there had before it detailed
information about the conditions at Adelanto, such as the
population levels, screening procedures, cleaning routines,
and physical layout of the facility, down to the precise
distance between bunk beds in feet and inches. Roman v.
Wolf, 2020 WL 1952656, at *1–9 (C.D. Cal. Apr. 23, 2020),
68 FRAIHAT V. USICE

aff’d in part and vacated in part by 977 F.3d at 946–47.
Even then, we “vacate[d] the provisions of the preliminary
injunction that ordered specific measures to be implemented
at Adelanto,” including reductions of the detainee
population. 977 F.3d at 939, 945. And we cautioned that
“the district court should, to the extent possible, avoid
imposing provisions that micromanage the Government’s
administration of conditions at Adelanto.” Id. at 946.

Similarly, in Zepeda Rivas, plaintiffs challenged the
conditions at two detention facilities. As in Roman, in
entering a preliminary injunction the district court
considered detailed evidence about those facilities’ approach
to COVID-19. Zepeda Rivas v. Jennings, 465 F. Supp. 3d
1028, 1034 (N.D. Cal. 2020), aff’d in part, 845 F. App’x
at 534. There were also notable similarities between the two
facilities: they were both located in California’s Central
Valley, were operated under the same ICE field office, and
received detainees convicted of similar crimes transferred
from the same county jail. See Zepeda Rivas v. Jennings,
445 F. Supp. 3d 36, 38–40, 39 n.4 (N.D. Cal. 2020).

Roman and Zepeda Rivas are of no assistance to
plaintiffs here and put in perspective the immensity of the
relief sought in this case. In contrast to the comparatively
focused, facility-specific relief in those two prior cases,
plaintiffs here challenged conditions of confinement at every
ICE detention facility nationwide. The relief they seek is far
greater than what was at issue in Roman and Zepeda Rivas.
Plaintiffs’ request demanded proof that would meet it. And
given the nature of their challenge, that proof was not to be
found in the form of particular conditions at individual
detention facilities.

Plaintiffs also argue that the injunction could be justified
by the district court’s reference to “ICE’s apparent failure to
 FRAIHAT V. USICE 69

enforce compliance with its policy documents.” 445 F.
Supp. 3d at 743. But the district court here was referring to
the fact that “from March 11, 2020 to April 10, 2020,” ICE’s
policies “seem[] to have been voluntary.” Id. As the district
court acknowledged, and as we have explained, the April 10,
2020 Pandemic Response Requirements were mandatory.
See id. at 724 (district court quoting the Pandemic Response
Requirements and stating that “[t]he Pandemic Response
Requirements set forth ‘mandatory requirements’ for all
facilities housing ICE detainees as well as best practices”).
The district court still faulted those Requirements for lacking
“enforcement mechanisms.” Id. But the district court did
not here elaborate on the “enforcement mechanisms” that
were supposedly lacking. And plaintiffs have cited no
authority requiring such additional mechanisms as a matter
of constitutional law in the face of mandatory policies that
were to be implemented through a chain of command.

To the extent plaintiffs instead argue that ICE has failed
adequately to implement its policies at individual facilities,
this encounters the same problem we have discussed above
about the difficulties of invoking facility-specific conditions
to justify a “clear showing” of nationwide deliberate
indifference. Noncompliance at individual facilities could
provide evidence of a lack of adequate oversight at those
specific facilities. See, e.g., Roman, 977 F.3d at 939–940.
But on this record, that evidence is insufficient to support a
finding as to ICE’s allegedly deliberately indifferent
“system-wide response.” 445 F. Supp. 3d at 737. There is
considerable distance between imperfect implementation of
a policy, or even knowledge of the imperfect implementation
of a policy, and deliberate indifference in the constitutional
sense. See, e.g., Mortimer v. Baca, 594 F.3d 714, 722–23
(9th Cir. 2010); see also, e.g., Gamble, 429 U.S. at 105–06;
Gordon, 888 F.3d at 1125; Castro, 833 F.3d at 1071.
70 FRAIHAT V. USICE

We therefore hold that plaintiffs failed to make a “clear
showing” of entitlement to relief commensurate with the
scope of their request. USCIS, 944 F.3d at 789 (quoting
Winter, 555 U.S. at 22). Plaintiffs have not established a
likelihood of success or serious questions on the merits of
their claim that ICE’s nationwide approach to COVID-19 in
spring 2020 reflected deliberate indifference or reckless
disregard of health risks. The district court’s injunction
therefore cannot stand on this basis.

IV

Given our holding on plaintiffs’ deliberate indifference
claim, it all but follows that plaintiffs have not demonstrated
a likelihood of success on their closely related theory that
ICE’s COVID-19 policies reflected unconstitutional
“punishment” under the Fifth Amendment.

“[U]nder the Due Process Clause, a detainee may not be
punished prior to an adjudication of guilt in accordance with
due process of law.” Wolfish, 441 U.S. at 535. We have thus
held that “a civil detainee awaiting adjudication is entitled to
conditions of confinement that are not punitive.” Jones v.
Blanas, 393 F.3d 918, 933 (9th Cir. 2004). “[A] restriction
is ‘punitive’ where it is intended to punish, or where it is
‘excessive in relation to its non-punitive purpose,’ or is
‘employed to achieve objectives that could be accomplished
in so many alternative and less harsh methods.’” Id. at 933–
34 (alteration accepted) (first quoting Demery v. Arpaio,
378 F.3d 1020, 1028 (9th Cir. 2004); and then quoting
Hallstrom v. City of Garden City, 991 F.2d 1473, 1484 (9th
Cir. 1993)). But “if a particular condition or restriction of
pretrial detention is reasonably related to a legitimate
governmental objective, it does not, without more, amount
to ‘punishment.’” Wolfish, 441 U.S. at 539.
 FRAIHAT V. USICE 71

In this case, we easily conclude that there is a “legitimate
governmental objective” in detaining plaintiffs. Id. ICE is
holding them because they are suspected of having violated
the immigration laws or are otherwise removable from the
United States. See 8 U.S.C. §§ 1182(a), 1225(b), 1226(a),
(c), 1227(a), 1231(a). The government has an
understandable interest in detaining such persons to ensure
attendance at immigration proceedings, improve public
safety, and promote compliance with the immigration laws.
See, e.g., Demore v. Kim, 538 U.S. 510, 521 (2003); see also
Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018)
(explaining that “Congress has authorized immigration
officials to detain some classes of aliens during the course of
certain immigration proceedings” to allow “immigration
officials time to determine an alien’s status without running
the risk of the alien’s either absconding or engaging in
criminal activity before a final decision can be made”).

The district court concluded that “[d]uring a pandemic
such as this, it is likely punitive for a civil detention
administrator to fail to mandate compliance with widely
accepted hygiene, protective equipment, and distancing
measures until the peak of the pandemic.” 445 F. Supp. 3d
at 746. But regardless of ICE’s earlier actions, by April 10,
2020, the Pandemic Response Requirements imposed a host
of mandatory obligations on all ICE detention facilities,
including mandatory compliance with the CDC Guidelines.
Just as ICE’s national directives as of that time did not reflect
deliberate indifference to COVID-19, they did not create
excessive conditions of “punishment” either.

The district court concluded otherwise in part on the
ground that ICE had “fail[ed] to take similar systemwide
actions as jails and prisons.” Id. at 746–47. But plaintiffs
cannot demonstrate a likelihood of success on that theory
72 FRAIHAT V. USICE

either. Under case law that the district court referenced, “a
presumption of punitive conditions arises where the
individual is detained under conditions identical to, similar
to, or more restrictive than those under which pretrial
criminal detainees are held.” Jones, 494 F.3d at 934. If a
plaintiff establishes that this presumption applies, “the
burden shifts to the defendant to show (1) ‘legitimate, non-
punitive interests justifying the conditions of the detainee’s
confinement’ and (2) ‘that the restrictions imposed are not
“excessive” in relation to these interests.’” King v. County
of Los Angeles, 885 F.3d 548, 557 (9th Cir. 2018)
(alterations accepted) (quoting Jones, 494 F.3d at 935).

Jones announced the foregoing comparative
presumption in the context of a California state prisoner who
was civilly detained and awaiting proceedings under
California’s Sexually Violent Predator Act. See 393 F.3d
at 922–23. King involved a plaintiff in substantially the
same situation. See 885 F.3d at 552–53. Plaintiffs have not
identified authority from this Court extending Jones’s
presumption to the context of federal immigration detainees.
But assuming without deciding that it would be appropriate
to invoke that presumption in the immigration context—in
which different government interests are at stake—the
presumption provides no aid to plaintiffs here.

As an initial matter, to the extent plaintiffs seek
application of this presumption to their confinement itself,
as opposed to their “conditions of confinement,” Jones,
494 F.3d at 934 (emphasis added), we have not previously
invoked the presumption in that manner. Nor do we see how
we could do so in this context, when the Supreme Court “has
recognized detention during deportation proceedings as a
constitutionally valid aspect of the deportation process.”
Demore, 538 U.S. at 523. Insofar as plaintiffs argue that
 FRAIHAT V. USICE 73

they should be released in greater numbers because more
criminal detainees have been released due to concerns about
COVID-19 at their prisons, we are aware of no authority
requiring such parity as a matter of federal constitutional
law.

To the extent plaintiffs’ intended comparison is instead
between the conditions at different facilities—ICE facilities
versus those housing criminal detainees—plaintiffs have not
demonstrated a likelihood of success on that theory. In
Jones, where we invoked the presumption plaintiffs seek, we
were considering a suit for damages by a single state
detainee who was civilly committed pending a trial to
determine whether he qualified as a sexual predator under
California law. Jones, 494 F.3d at 922–23. We compared
that detainee’s conditions of confinement to those of the
general jail population at the same facility in which the
plaintiff was housed. Id. at 934–35.

Here, in sharp contrast, plaintiffs’ argument in favor of a
presumption of “punitive” conditions depends on a far more
monumental comparison: all ICE detention facilities against
(presumably) all prisons housing criminal detainees. Once
again, the scope of plaintiffs’ desired relief demands a
commensurately high showing, which plaintiffs have not
made here.

The record lacks evidence from which to draw any
relevant comparisons between the overall conditions of
confinement of ICE detainees as compared to those in
criminal custody. The only basis for comparison that the
district court identified related to a Department of Justice
memorandum from the Attorney General to the Federal
Bureau of Prisons (BOP) concerning the release of criminal
detainees due to COVID-19 concerns. 445 F. Supp. 3d
at 747.
74 FRAIHAT V. USICE

That comparison is unavailing. There is, as we have
already explained, no support in our cases for applying
Jones’s presumption about comparative “conditions” of
confinement to the government’s continued ability to
confine persons pursuant to lawful authority, as here. But
even setting that threshold issue aside, plaintiffs have not
demonstrated that any “presumption” about punitive
conditions should arise from the BOP memorandum.

When we have applied the presumption announced in
Jones, we have done so after comparing the relevant
conditions of confinement as a whole. Thus in Jones, for
example, we compared the plaintiff’s overall conditions of
confinement—including recreational activities, phone calls,
time out of cell, and so on—with those of persons in the jail’s
general population. See 393 F.3d at 934–35; see also King,
885 F.3d at 557 (similar). Even assuming release
determinations qualify as “conditions” of confinement (they
do not), plaintiffs have not explained how we can evaluate
this one “condition” in isolation, without comparing the
various other “conditions” at ICE and criminal detention
facilities that also bear on COVID-19 mitigation efforts.
And on that point, and beyond custody release
determinations, plaintiffs have not identified how the
relevant “conditions” generally differ across the two types of
facilities. Under these circumstances, we do not think the
Jones presumption could apply, or that it could apply with
any meaningful force, when plaintiffs’ focus is limited to one
“condition” of confinement among many.

Regardless, plaintiffs have not demonstrated there is any
material difference between the BOP’s approach to COVID-
19-based custody release determinations and that which ICE
set forth in its Docket Review guidance. The April 10, 2020
Pandemic Response Requirements provides that all
 FRAIHAT V. USICE 75

detention facilities housing ICE detainees “must” “[n]otify
both the local ERO Field Office Director (or designee) and
the Field Medical Coordinator as soon as practicable, but in
no case more than 12 hours after identifying any detainee
who meets the CDC’s identified populations potentially
being at higher-risk for serious illness from COVID-19.”
The Pandemic Response Requirements then instruct that
“[u]pon being informed of” such a detainee, “ERO will
review the case to determine whether continued detention is
appropriate.”

At this point, the Pandemic Response Requirements
cross-reference the April 4, 2020 Docket Review guidance,
which provides detailed instructions for higher-risk “cases
that should be reviewed to re-assess custody.” After setting
forth an “[e]xpand[ed]” list of health conditions that would
warrant this review, the Docket Review guidance instructs
relevant personnel to “review the case to determine whether
continued detention remains appropriate in light of the
COVID-19 pandemic.” The Guidance further makes clear
that “[t]he fact that an alien is potentially higher-risk for
serious illness from COVID-19 should be considered a
factor weighing in favor of release.”

Notwithstanding this, the district court concluded that
the BOP memorandum reflected “a more decisive and urgent
call to action,” whereas ICE’s Docket Review guidance
“arguably fails to communicate the same sense of urgency
or concern.” 445 F. Supp. 3d at 747. When considering the
Docket Review guidance in conjunction with the later
Pandemic Response Requirements, we do not think they
promote a materially discrepant message from that of the
BOP memorandum. But even if there were a difference in
emphasis, any such perceived tonal difference does not
demonstrate a sufficiently material divide between ICE’s
76 FRAIHAT V. USICE

approach and that of the BOP. That perceived disparity thus
could not be the basis for any “presumption” of punitiveness.
Nor, as we have explained, have plaintiffs otherwise shown
a likelihood of success on this Fifth Amendment
“punishment” claim.

V

We turn lastly to plaintiffs’ statutory claim under the
Rehabilitation Act. That Act prohibits a program receiving
federal financial assistance from discriminating based on
disability. 29 U.S.C. § 794; see generally Fleming v. Yuma
Reg’l Med. Ctr., 587 F.3d 938, 940 (9th Cir. 2009). We hold
that plaintiffs have not met their burden of establishing a
likelihood of success on the merits of this claim.

Section 504 of the Rehabilitation Act states in relevant
part that “[n]o otherwise qualified individual with a
disability . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 29 U.S.C.
§ 794(a). A plaintiff bringing a section 504 claim thus “must
show that ‘(1) he is an individual with a disability; (2) he is
otherwise qualified to receive the benefit; (3) he was denied
the benefits of the program solely by reason of his disability;
and (4) the program receives federal financial assistance.’”
Updike v. Multnomah County, 870 F.3d 939, 949 (9th Cir.
2017) (quoting Duvall v. County of Kitsap, 260 F.3d 1124,
1135 (9th Cir. 2001)).

Plaintiffs have at the very least not established a
likelihood of success on the third element. Plaintiffs have
not identified any “benefit” that they have been denied. The
district court held otherwise after concluding that the
“programmatic ‘benefit’ in this context . . . is best
 FRAIHAT V. USICE 77

understood as participation in the removal process.” 445 F.
Supp. 3d at 748. But even assuming “participation in the
removal process” could fit within the statutory term
“benefit,” plaintiffs have not shown they were deprived of
the ability to participate in their immigration proceedings.
Plaintiffs in their answering brief respond only that “a person
cannot participate in challenging her removal from this
country—by communicating with counsel, witnesses, or the
immigration judge—if she is on a ventilator.” But this bare
allegation is insufficient.

In addition, plaintiffs did not establish a further
requirement of section 504’s third element, which is that the
denial of benefits be “solely by reason” of plaintiffs’ alleged
disabilities. 29 U.S.C. § 794(a). Plaintiffs at most
demonstrated that they were subjected to inadequate national
policies that they claimed reflected deliberate indifference to
COVID-19; they did not show they were treated differently
from other detainees “solely by reason” of their disabilities.
See K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d
1088, 1099 (9th Cir. 2013).

We have no occasion to reach the Rehabilitation Act’s
other elements because we conclude that plaintiffs have not
shown a likelihood of success that they were denied a benefit
solely by reason of their claimed disabilities. Their statutory
claim, like their constitutional claims, thus cannot support
preliminary injunctive relief. And because plaintiffs have
not demonstrated a likelihood of success on any claim, we
need not address the other preliminary injunction factors that
plaintiffs also would have needed to establish. See
California ex rel. Becerra, 950 F.3d at 1083 (“If a movant
fails to establish likelihood of success on the merits, we need
not consider the other factors.”).

* * *
78 FRAIHAT V. USICE

COVID-19 presents inherent challenges in institutional
settings, and it has without question imposed greater risks on
persons in custody. But plaintiffs had to demonstrate
considerably more than that to warrant the extraordinary,
system-wide relief that they sought. The demanding legal
standards that govern plaintiffs’ request reflect the
separation of powers implications underlying any effort to
place presumptively Executive responsibilities in judicial
hands. That COVID-19 is an unprecedented public health
issue could not thereby sustain a preliminary injunction that,
without sufficient basis, effectively placed a federal court at
the center of the Executive’s nationwide effort safely to
manage immigration detention facilities in the middle of an
evolving pandemic.

We therefore reverse the preliminary injunction and
direct that all orders premised on it be vacated.

REVERSED AND REMANDED WITH
INSTRUCTIONS.

BERZON, Circuit Judge, dissenting:

I dissent from both the majority’s opinion vacating the
district court’s preliminary injunction and its order denying
the parties’ joint request for mediation.

Today, the majority vacates the district court’s April
2020 preliminary injunction. To arrive at its holding, the
majority applies incorrect standards three times: The
majority recites but does not engage with our sliding scale
approach for reviewing a preliminary injunction. See All. for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th
Cir. 2011); Opinion at 46. It correctly identifies but then
 FRAIHAT V. USICE 79

flouts our mandate to review the grant of a preliminary
injunction for abuse of discretion, not de novo. See, e.g., id.
at 58–59 (reaching its own “conclu[sion]” as to whether the
plaintiffs met their factual burden). And, functionally, it
evaluates Plaintiffs’ Fifth Amendment reckless disregard
claim under a subjective, instead of the proper, objective,
standard. Id. at 48–53. The majority also repeatedly
characterizes as “sweeping,” “far-reaching” and of great
“magnitude,” id. at 9, 11–12, an injunction that is actually
limited, modest, and deferential to the government’s primary
role in crafting policy and administering the detention
facilities that house immigration detainees. Beyond these
analytical errors, the majority does precisely what it
chastises the district court for: by declining the parties’ joint
request for mediation, the majority imposes its own will on
the parties.

I.

This appeal is more easily summarized than the
majority’s lengthy opinion suggests. The federal
government is authorized, and sometimes required, by
statute to hold people in civil detention pending federal
immigration proceedings. See generally Jennings v.
Rodriguez, 138 S. Ct. 830, 836–38 (2018). But “[t]he Fifth
Amendment requires the government to provide conditions
of reasonable health and safety to people in its custody.”
Roman v. Wolf, 977 F.3d 935, 943 (9th Cir. 2020) (citing
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S.
189, 199–200 (9th Cir. 2017)). 1 People in custody can

1
People in custody may also argue that conditions are
unconstitutionally punitive under a related Fifth Amendment due process
theory. See Roman v. Wolf, 977 F.3d 935, 943 n.4 (citing Bell v. Wolfish,
441 U.S. 520, 535–37 (1979)). I agree with the majority that the
80 FRAIHAT V. USICE

demonstrate unconstitutional conditions by pointing to
systemwide policies insufficient for protecting their health
and safety. See generally Brown v. Plata, 563 U.S. 493, 505
n.3 (2011); Parsons v. Ryan, 754 F.3d 657, 676–79 (9th Cir.
2014).

In March 2020, a group of people in federal immigration
detention sought, in an already pending case, emergency
subclass certification for, and a preliminary injunction on
behalf of, all detainees who for medical reasons were “at
heightened risk of severe illness and death upon contracting
the COVID-19 virus.” Fraihat v. U.S. Immigr. & Customs
Enf’t, 445 F. Supp. 3d 709, 726, 736–41 (C.D. Cal. 2020)
(Preliminary Injunction). The district court provisionally
certified both subclasses, using a set of medical risk factors
substantially similar to those put forth by U.S. Immigration
and Customs Enforcement (ICE), based on guidance from
the Centers for Disease Control and Prevention (CDC). Id.;
see also Fraihat v. U.S. Immigr. & Customs Enf’t, No. 19-
1546, 2020 WL 1932393 (C.D. Cal. Apr. 20, 2020) (Class
Certification Order). So—and this point is critical, although
the majority opinion repeatedly loses track of it—this case
concerns ICE COVID-19 policy only as it relates to
medically vulnerable detainees.

The majority opinion, disregarding that this case focuses
on the lack of specific provisions in ICE’s policy statements
regarding vulnerable detainees, recites at length the
provisions in ICE documents governing the treatment of all
detainees during the early days of the pandemic. That ICE
produced a fair amount of paper addressing the COVID-19

Plaintiffs have not raised serious questions on the merits of their punitive
conditions claim or their Rehabilitation Act claim.
 FRAIHAT V. USICE 81

problem in its facilities should not obscure the critical facts
as found by the district court and here relevant:

During the period of time the district court considered
when issuing the injunction under review, ICE had issued a
national policy guidance, known as the “Detained Docket
Review Guidance,” advising its agents to reassess the
continued custody of some medically vulnerable detainees.
But, the district court found, the policy was discretionary, as
it did not “mandate action” and lacked “any requirement”
that ICE field agents conduct such custody reviews.
Preliminary Injunction, 445 F. Supp. 3d at 743, 750. The
district court recounted that the guidance only “ask[ed] Field
Office Directors to ‘please’ make individualized
determinations of the necessity of ongoing detention, and
only as to some detainees.” Preliminary Injunction, 445 F.
Supp. 3d at 743 (emphasis added) (quoting Detained Docket
Review Guidance). Moreover, the district court found, ICE
did not have a centralized tracking mechanism enabling
affirmative and quick identification of such detainees, nor
did ICE “enforce compliance.” Id. at 726–28, 745, 747, 743.
“To the extent COVID-19 risk was addressed by individual
facilities from March 11, 2020 to April 10, 2020,” the district
court concluded, “it seems to have been voluntary.” Id. at
743. And, the district court further found, ICE had no
specific policy mandating minimum acceptable detention
conditions for medically vulnerable subclass members in
particular, directed at reducing their chance of contracting
COVID-19 while they remained detained. Id. at 744.

ICE’s April 10, 2020, COVID-19 policy, known as the
“Pandemic Response Requirements,” or “PRR,” did not cure
these defects. It sought implementation of the measures it
laid out to prevent the spread of COVID-19 only “to the
extent practicable,” specified that “[e]fforts should be made
82 FRAIHAT V. USICE

to reduce the population to approximately 75% of capacity,”
and recognized that “strict social distancing may not be
possible in congregate settings such as detention facilities.”
Finally, the PRR included “no mention of enforcement
mechanisms.” Preliminary Injunction, 445 F. Supp. 3d
at 743. For all its verbosity, the majority opinion does not
identify as clear error—and therefore as an abuse of
discretion—any of the district court’s findings about ICE’s
inadequate focus on the particular needs of medically
vulnerable detainees or ICE’s failure to mandate and assure
compliance with directives to protect such detainees.

Because ICE’s initial policy guidance was discretionary
and its updated guidances required only “[e]fforts” that the
guidance itself recognized as perhaps futile, high-risk
detainees faced dangerous, deteriorating conditions at the
time the injunction under review issued. Plaintiff subclass
members detained in ICE facilities reported “little change in
protocols or procedures in place in light of COVID-19.” One
man, detained at the Etowah County Detention Center in
Alabama, detailed his living conditions thus: he had received
no formal education about COVID-19; he ate three meals a
day in a crowded setting, side-by-side with approximately
seventy other people; he spent four hours every day in a
group area where “there [wa]s no room for social distancing”
and the maximum distance between people was
approximately two feet; he shared a cell with another person
in which social distancing was not possible; he was given
soap once every one-to-two weeks; he was given one
facemask to reuse; and there was no hand sanitizer available.
Another man, detained at the Stewart Detention Center in
Georgia, declared, “[s]ince the COVID-19 crisis started, ICE
has not made any changes to the cleaning schedule for our
dorm. Nor have we been provided with additional cleaning
 FRAIHAT V. USICE 83

supplies to keep our dorm disinfected and sufficiently
clean.”

An employee at a faith-based organization that works
with people in ICE detention facilities reported that people
in detention “ha[d] not experienced any material changes
that protect them from the virus. To the contrary, I have daily
conversations with our detained community members and
with each passing day the conditions get worse.” The
testimony of another man, detained at the Adelanto
Detention Center in California, highlighted the ways in
which conditions were deteriorating. Hand sanitizer in a
dispenser in a common area had been empty for more than
two weeks. More than that, the man worked as a janitor in
the facility, earning one dollar per day, and although “[t]here
[we]re bottles of disinfectant in the janitor’s closet that
[they] [we]re supposed to add to the bucket,” the bottles
were “empty.” “We are,” he told the district court, “just
cleaning with water.”

The district court’s findings reflected this disturbing
evidence and that of medical experts. After a hearing, the
district court found that 15% of subclass members would die
if they contracted COVID-19, which was considerably more
likely while they remained detained. Preliminary Injunction,
445 F. Supp. 3d at 722, 744. Subclass members who contract
COVID-19 and survive would be likely to experience “life-
altering complications” such as “permanent loss of
respiratory capacity, heart conditions, [and] kidney
damage.” Id. The district court also found that “a surge in
preventable cases would further strain local hospital and
healthcare resources.” Based on the record before it and its
findings, the district court issued a preliminary injunction in
April 2020 to protect the medically vulnerable detainee
subclass members from COVID-19.
84 FRAIHAT V. USICE

According to the majority, the “sweeping injunction”
“was extraordinary beyond measure” and “effectively
place[d] this country’s network of immigration detention
facilities under the direction of a single federal district
court.” Opinion at 9, 11–12. That characterization, to put it
mildly, is not accurate.

The Plaintiffs did not contend, as the majority suggests,
that “all of the approximately 250 immigration detention
facilities nationwide” were violating the Fifth Amendment.
Id. at 9. Instead, Plaintiffs claimed ICE’s nationwide
policies, or lack thereof, for protecting high-risk detainees
from COVID-19 exposed them to an unconstitutional risk of
harm given their medical vulnerabilities. So it was not the
preliminary injunction that put the hundreds of immigration
facilities under the control of the district court. Instead each
of those facilities is part of the federal government’s
immigration detention system and must comply with ICE’s
national policies. For that reason, systemic changes in the
policies will affect individual facilities, but the injunction is
directed at the promulgation of the policies, not at evaluating
the conditions at individual facilities. And, as the district
court noted, “[D]efendants do not dispute that they have the
authority to mandate compliance [with national policies].”
Preliminary Injunction, 445 F. Supp. 3d at 746.

Although one would not know this from reading the
majority’s hyperbolic language about the separation of
powers and appropriate judicial reticence, the April 2020
injunction ultimately required ICE to devise appropriate
policies; the injunction did not dictate those policies or usurp
the agencies’ role in running the detention facilities. It left
the definition of specific policies to the defendants, and
appropriately so. Cf. Brown v. Plata, 563 U.S. 493, 500
(2011) (upholding a district court’s order that le[ft] the
 FRAIHAT V. USICE 85

choice of means to reduce overcrowding to the discretion of
. . . officials”). Injunctions regarding conditions in detention
facilities are suitable when they lay out “general areas . . .
that [the agency] need[s] to address,” and “direct the
[agency] to develop specific policies and procedures for
complying with” federal law. Armstrong v. Davis, 275 F.3d
849, 883 (9th Cir. 2001) (Berzon, J., concurring). That is
precisely what the district court’s original injunction did.

Specifically, the preliminary injunction mandated, at a
high level of generality, the following:

• Defendants shall provide ICE Field
Office Directors with the Risk Factors
identified in the Subclass definition;

• Defendants shall identify and track all
ICE detainees with Risk Factors. Most
should be identified within ten days of
this Order or within five days of their
detention, whichever is later;

• Defendants shall make timely custody
determinations for detainees with Risk
Factors, per the latest Docket Review
Guidance. In making their
determinations, Defendants should
consider the willingness of detainees with
Risk Factors to be released, and offer
information on post-release planning,
which Plaintiffs may assist in providing;

• Defendants shall provide necessary
training to any staff tasked with
identifying detainees with Risk Factors,
86 FRAIHAT V. USICE

or delegate that task to trained medical
personnel;

• The above relief shall extend to detainees
with Risk Factors regardless of whether
they have submitted requests for bond or
parole, have petitioned for habeas relief,
have requested other relief, or have had
such requests denied;

• Defendants shall promptly issue a
performance standard or a supplement to
their Pandemic Response Requirements
(‘Performance Standard’) defining the
minimum acceptable detention
conditions for detainees with the Risk
Factors, regardless of the statutory
authority for their detention, to reduce
their risk of COVID-19 infection pending
individualized determinations or the end
of the pandemic;

• Defendants shall monitor and enforce
facility-wide compliance with the
Pandemic Response Requirements and
the Performance Standard.

Preliminary Injunction, 445 F. Supp. 3d at 750–51. The
injunction, then, specified areas that needed to be addressed,
leaving to ICE the development of specific policies and
procedures. Pursuant to the injunction, ICE, not the court,
was to decide how to identify and track detainees, the
standards governing custody determinations, the “minimal
acceptable detention conditions,” and the way in which
compliance would be monitored and enforced.
 FRAIHAT V. USICE 87

The government never moved to stay the injunction,
modify it, or vacate it, despite the district court’s invitation
to do so, see id. at 750, and waited two months to file an
appeal.

According to the district court, after the injunction
issued, custody reviews of subclass members remained “a
disorganized patchwork of non-responses or perfunctory
denials.” Fraihat v. U.S. Immigr. & Customs Enf’t, No.
EDCV191546JGBSHKX, 2020 WL 6541994, at *6, *10
(C.D. Cal. Oct. 7, 2020) (Supervisory Order). There was still
no minimum detention standard “to address the substantial
risk of death to subclass members during the pandemic.” Id.
at *6. And “monitoring efforts rel[ied] on a meager survey
that allow[ed] facilities to self-report their level of
compliance.” Id. To address these gaps, the district court
issued a further order in October 2020, from which
defendants also appealed. See generally id.; Notice of
Appeal, Fraihat v. U.S. Immigr. & Customs Enf’t, No. 5:19-
cv-01546-JGB-SHK (C.D. Cal. Dec. 7, 2020), ECF No. 250.
Most recently, a special master appointed by the district
court reported that immigration detention facilities “are in
the midst of an unprecedented surge in cases.” Report and
Recommendation of Special Master, Fraihat v. U.S. Immigr.
& Customs Enf’t, No. 5:19-cv-01546-JGB-SHK (C.D. Cal.
May 21, 2021), ECF No. 304; see also Opinion at 43–44
(referencing the special master). The majority opinion
devotes considerable attention to the details of the October
2020 order, even though it is the subject of a separate appeal.

II.

It is true that this case has an artificial quality, as the
development of the coronavirus crisis has taken many twists
and turns, both terrifying and at times heartening, and both
inside and outside detention institutions, since April 2020.
88 FRAIHAT V. USICE

As a result of both changes in the pandemic’s course and
concerns about ICE’s implementation of the bare-bones
provisions of the April injunction, the district court has acted
within its power in considering new facts on the ground and
revisiting the terms of the order it originally issued. See Fed.
R. Civ. P. 62(d) (“While an appeal is pending from an
interlocutory order . . . that grants . . . an injunction, the court
may . . . modify . . . [the] injunction.”). But the majority’s
approach to this fluid situation—relying on the district
court’s October order to demonstrate that the April order was
too intrusive, while refusing to recount or consider any of the
facts underlying it—cannot be justified. See, e.g., Opinion
at 61.

Either we consider—as did this court in Roman v. Wolf,
977 F.3d 935 (9th Cir. 2020), and Zepeda Rivas v. Jennings,
Nos. 20-16276 & 20-16690 (9th Cir. 2021)—what actually
happened after the April 2020 injunction issued, or we do
not. Were we to consider it, we might note that what
happened, according to the district court, was that ICE did
little to carry out the broad, deferential directives issued in
April, and the coronavirus spread exponentially among the
medically vulnerable members of the Plaintiff subclasses. It
might well have made more sense to consolidate this appeal
with the appeal of the October order and the appeal of the
district court’s June 23, 2021, order that adopted the special
master’s report and recommendation regarding compliance
with the April 2020 injunction—but we did not do that.

What we cannot do is what the majority does: treat the
April injunction here under review as if it included all the
 FRAIHAT V. USICE 89

terms of the October order while refusing to consider the
factual and legal circumstances that led to that second order. 2

In the end, we have to deal with the appeal before us,
from the April injunction, not with the appeals not before us,
from the October 2020 and June 2021 orders. I therefore
focus this dissent on the April record and the April
injunction.

III.

As to the question actually before us—the propriety of
the April, 2020, preliminary injunction—the majority begins
by applying a misleading standard when considering
whether the issuance of the injunction was proper. The
majority first lays out the familiar preliminary injunction test
in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008),
under which “[a] plaintiff . . . must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest.” Id. at 20. The majority then acknowledges
in passing that in this court we apply Winter through a
sliding scale approach, adjusting the level of likelihood of
success on the merits to the degree and imminence of
irreparable harm demonstrated. Opinion at 46; All. for the
Wild Rockies, 632 F.3d at 1131–32. But its recitation of the
standard from Alliance for the Wild Rockies is the beginning

2
It is critical in this regard that we are reviewing a preliminary
injunction. The case remains pending, so the majority’s rejection of a
preliminary injunction based on the April 2020 record with regard to the
deliberate indifference issue does not preclude the Plaintiffs from
moving for, nor the district court from considering, a renewed motion for
a preliminary injunction or permanent relief.
90 FRAIHAT V. USICE

and end of its consideration and appreciation of the sliding
scale standard.

I would actually apply the sliding scale analysis under
Alliance for the Wild Rockies with regard to Plaintiffs’
reckless disregard due process claim, rather than reciting and
then ignoring it. Doing so, I would affirm the district court’s
preliminary injunction. 3

A.

Contrary to the majority’s suggestion, our standard of
review is not whether “[w]e conclude” “that plaintiffs did
not meet their burden of demonstrating deliberate
indifference.” Opinion at 58–59 (emphasis added); see also
id. at 61. Rather, “[a]s long as the district court got the law
right, it will not be reversed simply because the appellate
court would have arrived at a different result if it had applied
the law to the facts of the case.” A&M Records, Inc. v.
Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001) (internal
quotation marks omitted). “A preliminary injunction should
be set aside only if the district court ‘abused its discretion or
based its decision on an erroneous legal standard or on
clearly erroneous findings of fact.’” Doe v. Kelly, 878 F.3d
710, 719 (9th Cir. 2017) (internal quotation marks omitted).
The majority opinion is bereft of any recognition of our

3
Alternatively, I would leave the injunction in place and suspend
consideration of this case while the parties mediate towards a solution,
as they have requested. On June 1, 2021, the parties informed us that they
were considering requesting a referral to the court’s mediators, and on
September 9, 2021, they jointly did so. The majority today refuses to
grant the parties’ joint request. I note that this court has an excellent in-
house mediation service, and during my time on the court, a panel has
denied a joint request for referral to that service rarely if ever.
 FRAIHAT V. USICE 91

limited role in reviewing a district court’s issuance of a
preliminary injunction.

B.

Again, under Alliance for the Wild Rockies, the proper
preliminary injunction inquiry takes into account whether
the balance of hardship tips sharply in Plaintiffs’ favor, and,
if so, whether they have raised serious questions going to the
merits of their Fifth Amendment reckless disregard claim.
“That is, ‘serious questions going to the merits’ and a
balance of hardships that tips sharply towards the plaintiff[s]
can support issuance of a preliminary injunction, so long as
the plaintiff[s] also show[] that there is a likelihood of
irreparable injury and that the injunction is in the public
interest.” Id. at 1135. Here, in my view, the equity balance
does strongly favor the Plaintiffs. And there are, at a
minimum, serious questions as to whether ICE’s supervision
of detention facilities recklessly disregarded the medical
needs of the high risk detainees who make up the Plaintiff
subclasses. The district court did not abuse its discretion in
so concluding.

(i) First, the balance of equities does tip sharply in
Plaintiffs’ favor.

When the government is a party, the balance of equities
factor merges with the public interest consideration. Drakes
Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir.
2014). On the balance of equities/public interest point,
Roman is instructive. Roman held that “[t]he district court
rightly concluded that the equities and public interest tipped
in [the] [p]laintiffs’ favor,” because the “[p]laintiffs were
likely to suffer irreparable harm absent relief given COVID-
19’s high mortality rate,” and the government’s interests
were unlikely to be harmed by the issuance of an injunction:
92 FRAIHAT V. USICE

many of the plaintiffs did not have criminal records and there
was little risk the plaintiffs would “abscond if they were
released” especially given the availability of electronic
monitoring tools.” 977 F.3d at 944.

The same is true here. As the district court explained,
defendants “do not dispute that 15% of [subclass members]
who ultimately contract COVID-19 will die, or that those
who survive are likely to suffer life-altering complications,”
such as “permanent loss of respiratory capacity, heart
conditions, [and] kidney damage.” Preliminary Injunction,
445 F. Supp. 3d. at 744, 722. Death and life-altering medical
conditions are surely irreparable injuries. In fact, a
comparison with Roman suggests that the balance of
hardships tips more “sharply towards the plaintiff[s],” All.
for the Wild Rockies, 632 F.3d at 1135, than in Roman,
because, as to the irreparable harm to the class, Fraihat
subclass members are particularly vulnerable to COVID-19,
while the Roman class included all detainees.

Also as in Roman, the government’s interests here were
not likely to be injured. The latest statistics available suggest
that 70% of detained subclass members were not
mandatorily detained, Supervisory Order, 2020 WL
6541994, at *5, and thus not “inadmissible or deportable
because of [their] criminal history,” 8 U.S.C. § 1226(c).
There is no reason to think that Fraihat subclass members
are more likely to have criminal records than Roman class
members. And there is no presumption that Fraihat subclass
members with criminal records would be routinely released
under the April order, which specified that ICE should apply
 FRAIHAT V. USICE 93

its own Detained Docket Review Guidance, not one
provided by the court. 4

The heightened risk of a COVID-19 outbreak in
detention centers was apparent in April 2020. 5 A “remedy
for unsafe conditions need not await a tragic event.” Helling
v. McKinney, 509 U.S. 25, 33–34 (1993). Also, the district
court’s preliminary injunction opinion explained that “[a]n
immigration facility outbreak would also menace the non-
detained: a surge in preventable cases would further strain
local hospital and healthcare resources.” Preliminary
Injunction, 445 F. Supp. 3d. at 722.

“Faced with . . . preventable human suffering,” as we are
here, “we have little difficulty concluding that the balance of
hardships tips decidedly in plaintiffs’ favor.” Hernandez v.
Sessions, 872 F.3d 976, 996 (9th Cir. 2017); see Preliminary
Injunction, 445 F. Supp. 3d at 749 (quoting Hernandez).

4
I note that in the October enforcement order, the district court
retained the Detained Docket Review Guidance as providing the
governing standards and specified only that, “Defendants shall not apply
the Docket Review Guidance rule against release of Section 1226(c)
detainees so inflexibly that none of these subclass members are
released.” Supervisory Order, 2020 WL 6541994, at *12 (emphasis
added).
5
It is no surprise that the pandemic’s eventual course bore this
prediction out. In a July 2020 filing, an expert relayed to the district court
that “detention centers are closed environments that increase the risk of
COVID-19 outbreaks and are institutional amplifiers of the virus, not
unlike factories or nursing homes.” Supervisory Order, 2020 WL
6541994, at *3. And in October 2020 the district court observed,
“[d]etention centers with lax social distancing or other COVID-19
prevention measures continue to pose a grave threat of harm to
individuals residing and working in them, as well as to the community as
a whole.” Id. (emphasis added).
94 FRAIHAT V. USICE

Because the district court appropriately concluded that an
injunction was needed to safeguard the health of both
detainees and the communities surrounding detention
centers, its issuance of a preliminary injunction was in the
public interest. The district court so found and did not abuse
its discretion in doing so.

(ii) Next, Plaintiffs have raised serious questions going
to the merits of their reckless disregard claim. The district
court “identified the correct legal rule” governing this claim.
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.
2009) (en banc). Under Gordon v. County of Orange,
888 F.3d 1118 (9th Cir. 2018), Plaintiffs must show

“(i) the defendant[s] made an intentional
decision with respect to the conditions under
which . . . plaintiff[s] w[ere] confined;
(ii) those conditions put the plaintiff[s] at
substantial risk of suffering serious harm;
(iii) the defendant[s] did not take reasonable
available measures to abate that risk, even
though a reasonable official in the
circumstances would have appreciated the
high degree of risk involved—making the
consequences of the defendant[s’] conduct
obvious; and (iv) by not taking such
measures, the defendant[s] caused the
plaintiff[s’] injuries.”
 FRAIHAT V. USICE 95

Id. at 1125. The majority focuses only on the third element,
as there is no dispute that the others are met. 6 See Opinion
at 48–53.

Critically, “[w]ith respect to the third element, the
defendant[s’] conduct must be objectively unreasonable.”
Gordon, 888 F.3d at 1125 (quoting Castro v. Cnty. of L.A.,
833 F.3d 1060, 1071 (9th Cir. 2016) (en banc) (emphasis
added)). “[T]he plaintiff[s] must ‘prove more than
negligence but less than subjective intent—something akin
to reckless disregard.’” Id. (quoting Castro, 833 F.3d at
1071) (footnote omitted). The majority recognizes this point
but then repeatedly elides it.

Even though the proper standard “is one of objective
indifference, not subjective indifference,” id. at 1120
(emphasis added), the majority substantiates its analysis
with cases that additionally require subjective indifference.
It does so primarily by relying on cases that predate Kingsley
v. Hendrickson, 576 U.S. 389 (2015). Opinion at 48–49, 59–

6
Defendants do not dispute that they made a series of intentional
decisions with respect to COVID-19—in fact, the premise of their
defense, and the majority’s reversal, is that ICE “forthrightly identified
and directly sought to mitigate,” Opinion at 52–53. the threat of COVID-
19. There is also no dispute that Plaintiffs were at “substantial risk of
suffering serious harm,” Gordon, 888 F.3d at 1125, in the midst of a
global pandemic. As the district court explained, “[i]t is undisputed that
COVID-19 finds its way into almost every . . . communal setting.”
Preliminary Injunction, 445 F. Supp. 3d at 744. Further, defendants “do
not dispute that 15% of [subclass members] who ultimately contract
COVID-19 will die, or that those who survive are likely to suffer life-
altering complications.” Id. Similarly, there is no dispute that the
causation element is met too, as, to prove causation, “a plaintiff need
only prove a ‘sufficiently imminent danger,’ because a ‘remedy for
unsafe conditions need not await a tragic event.’” Roman, 977 F.3d
at 943–44 (quoting Helling, 509 U.S. at 33–34 (cleaned up).
96 FRAIHAT V. USICE

60. Kingsley held the proper standard for evaluating a
detainee’s excessive force claim is purely objective.
576 U.S. at 395–97. Applying Kingsley, Gordon
“conclude[d] that the proper standard of review” for “right
to adequate medical care” claims “is one of objective
indifference, not subjective indifference.” 888 F.3d at 1120.

The majority relies, for example, on Toguchi v. Chung,
391 F.3d 1051, 1058 (2004) for the proposition that “a mere
difference of medical opinion is insufficient, as a matter of
law, to establish deliberate indifference.” But Toguchi,
decided before Gordon, applied “both the objective and
subjective” test. Id. at 1057 (quoting Hallett v. Morgan,
296 F.3d 732, 744 (9th Cir. 2002). Similarly, the majority
quotes Swain v. Junior, 961 F.3d 1276, 1289 (11th Cir.
2020), as support for its conclusion that the government did
not act with deliberate indifference. Opinion at 59–60. But,
as Swain explicitly noted, the Eleventh Circuit “require[s]
detainees to prove subjective deliberate indifference.”
961 F.3d at 1285 n.4 (emphasis added); see Dang ex rel.
Dang v. Sheriff, Seminole Cnty. Fla., 871 F.3d 1272, 1279
n.2 (11th Cir. 2017) (holding Kingsley did not abrogate
Eleventh Circuit precedent of using a subjective standard for
claims of inadequate medical treatment). Thus, Swain held
the government had not “acted with a deliberately indifferent
mental state” because its mental state was not “equivalent to
‘subjective recklessness.’” 961 F.3d at 1289. Our court
applies a different standard, so Swain’s reasoning offers little
guidance.

The majority’s importation of subjective elements into
its analysis is not simply a matter of erroneously citing cases
applying a subjective standard. The majority’s analysis of
whether ICE’s policies regarding the protection of medically
 FRAIHAT V. USICE 97

vulnerable detainees from serious illness and possible death
is replete with consideration of subjective factors.

To the majority, ICE’s April 2020 policy response was
reasonable because it “reflect[ed] a mobilized effort” which
“forthrightly identified and directly sought to mitigate” the
health risks posed by COVID-19. Opinion at 52–53
(emphasis added); see also id. at 4. Indeed—and
thankfully—some federal immigration officials did
recognize the threat of COVID-19 in detention facilities. For
example, ICE’s March 2020 “Action Plan” recognized “[t]he
combination of a dense and highly transient detained
population presents unique challenges for ICE efforts to
mitigate the risk of infection and transmission.”

But the Kingsley/Gordon reckless disregard standard is
not satisfied by simply recognizing a risk to health and
safety, expressing concern, and taking some measures to
decrease the risk. Instead, the officials responsible for the
conditions must take “reasonable available measures to
abate that risk”; the degree of risk presented necessarily
informs which “reasonable available measures” are needed
“to abate” them. Gordon, 888 F.3d at 1125. Plaintiffs have
presented evidence which, viewed through an objective
standard, strongly suggesting the government did not
prescribe such measures, whether it meant to do so or not.

Distracted, I submit, by its evaluation of whether ICE
was acting in good faith, the majority holds that ICE’s policy
about detention conditions is not “objectively
unreasonable,” Opinion at 48–53; Gordon, 888 F.3d at 1125
(quoting Castro, 833 F.3d at 1071). I disagree. Given the
degree of irreparable harm to which the Plaintiff subclasses
of medically vulnerable detainees were exposed, Roman
makes clear that the district court did not abuse its discretion
in concluding that the Plaintiffs at least demonstrated a
98 FRAIHAT V. USICE

serious legal question on the merits of their claim, sufficient
to support the grant of a preliminary injunction.

The majority holds, for example, that “[P]laintiffs did not
demonstrate that the mere fact of their detention amounted
to deliberate indifference,” 7 Opinion at 61, such that the
government’s custody review policy at the time could be
considered unconstitutional reckless disregard of potential
medical injury. But the district court did not hold that
continued detention itself demonstrated reckless disregard of
the safety of medically vulnerable detainees during the
pandemic. Instead, the district court’s findings—and
order—focused on the failure to articulate a mandatory
individual review requirement for each member of the
limited, medically vulnerable Plaintiff subclasses to
determine whether temporary release was appropriate under
ICE’s own release standards.

With regard to the underlying finding regarding the level
of risk—again, an essential aspect of determining whether
any failure to cabin that risk was “reckless”—the district
court found that 15% of subclass members would die if they
contracted COVID-19, Preliminary Injunction, 445 F. Supp.

7
The post-Kingsley case law continues to use the term “deliberate
indifference,” see, e.g., Gordon, 888 F.3d 1118, 1124–25 (9th Cir. 2018);
Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1069–70 (9th Cir. 2016),
despite its origination in the Eighth Amendment subjective standard
cases, e.g., Whitley v. Albers, 475 U.S. 312, 320 (1986); Hudson v.
McMillian, 503 U.S. 1, 6 (1992), and even though the term seems to
incorporate the subjective component (that the “indifference” was
“deliberate”). I use “reckless disregard” here and suggest that we stop
using the misleading “deliberate indifference” rubric in cases involving
pretrial or civil detention Fifth or Fourteenth Amendment challenges.
 FRAIHAT V. USICE 99

3d at 722, 744, which was significantly more likely while
they remained detained. 8

Notably, the government does not contend that the
district court’s factfinding as to the level of risk to which
medically vulnerable detainees are exposed was clearly
erroneous. Given that level of risk, the government was
required to take “reasonable available measures to abate
th[e] risk,” Gordon, 888 F.3d at 1125, which stemmed
directly from the congregate nature of detention. Issuing an
advisory policy for field agents with regard to reviewing the
continued detention of medically vulnerable people, see
pp. 101–104, infra, does amount to reckless disregard for
subclass members’ health and safety—or at least the district
court did not abuse its discretion in so concluding.

The majority’s dismissal of Roman as not pertinent here
notwithstanding, Opinion at 67–69, Roman strongly
supports this conclusion. In Roman, we agreed with the
district court, see 977 F.3d at 943, that detaining people in a
too-crowded detention facility without proper sanitation
exposed them to a “substantial risk of suffering serious
harm” from COVID-19, Gordon, 888 F.3d at 1125. For
support, Roman pointed to Helling, 509 U.S. at 35, which it
described as “holding that the health risk posed by a prison
inmate’s involuntary exposure to second-hand smoke could
form the basis of a claim that the government was violating
his right to reasonable safety.” Roman, 977 F.3d at 943–44.

8
It is possible that since April 2020, developments such as a more
sophisticated understanding of COVID-19 and the availability of a
vaccine mean that this estimated fatality rate is no longer accurate. The
shifting nature of the pandemic is precisely why I strongly disagree with
the majority’s insistence on deciding a case that the parties would now
prefer to mediate. See note 4, supra.
100 FRAIHAT V. USICE

And again the Fraihat subclass members—compared to the
Roman plaintiffs—faced a heightened risk of harm because
the Fraihat subclass included only those who were already
medically vulnerable to COVID-19—not, as in Roman, all
detainees. 9

In addition to holding that the risk of harm to all
detainees from COVID-19 exposure during immigration
detention was serious, Roman held it was not an abuse of
discretion for the district court in that case to conclude that
ICE’s conduct at the time the injunction issued was
“objectively unreasonable,” Gordon, 888 F.3d at 1125
(quoting Castro, 833 F.3d at 1071), such that ICE “violated
detainees’ due process right to reasonable safety,” Roman,
977 F.3d at 943. The majority holds that because “the
guidance ICE issued [concerning detention conditions]
applied to all detainees, which included those at greater risk
from COVID-19,” “[t]he government’s chosen approach
does not reflect deliberate indifference.” Opinion at 59. But
the undisputed record shows subclass members are not
similarly situated to all other persons detained. In fact,
subclass members are uniquely vulnerable to COVID-19,
and the government must take “reasonable available
measures to abate that risk.” Gordon, 888 F.3d at 1125
(emphasis added).

* * *

In sum, the rubric that is the appropriate one here, is
whether the “balance of hardships . . . tips sharply towards
the plaintiff[s].” All. for the Wild Rockies, 632 F.3d at 1135.
The district court did not abuse its discretion in concluding

9
One of Plaintiffs’ experts declared that a person aged 50–59 years
without underlying medical conditions had a 1% “case fatality rate.”
 FRAIHAT V. USICE 101

that it does. As in Roman, the district court appropriately
concluded that the Plaintiffs “were likely to suffer
irreparable harm absent relief given COVID-19’s high
mortality rate,” 977 F.3d at 944. And, for the reasons I have
explained, the issuance of an injunction accorded with the
public interest, and there were at least “serious questions”
going to the merits of the plaintiff’s reckless disregard Fifth
Amendment claim.

IV.

So the district court did not err in concluding it could
properly issue some preliminary injunction. The question
that remains is whether the district court abused its discretion
by ordering the specific terms of the April 2020 injunction.
I am convinced that it did not.

The majority maintains that the district court abused its
discretion in issuing a preliminary injunction in April 2020
because, according to the majority, even if ICE was “slow
out of the gate” in addressing COVID-19, “ICE’s national
policies at the time of the injunction did not reflect deliberate
indifference.” Opinion at 54. More specifically, the majority
suggests that, by April 2020, ICE had already “take[n]
reasonable available measures to abate th[e] risk” of
COVID-19 to subclass members, Gordon, 888 F.3d at 1125,
pointing out that, by then, “ICE policies . . . had already led
to the release of many detainees.” Opinion at 63.

What the district court actually found was that ICE had
released 693 individuals since March 2020 based on medical
vulnerabilities. Preliminary Injunction, 445 F. Supp. 3d
at 727. At the time, ICE had more than thirty thousand
people in custody. Id. at 725. That 693 individuals were
released is no measure of whether ICE’s release review
policy had reached and was going to reach all endangered
102 FRAIHAT V. USICE

members of the Plaintiff subclasses. The district court’s
order that ICE affirmatively require prompt detention
reviews of the particularly vulnerable subset of detainees in
the Plaintiff subclasses, and that it enforce the requirement,
was designed to assure that the number of medically
vulnerable individuals released reflected the application of
ICE’s own standards for release to the high risk presented,
not local intransigence or foot-dragging. 10

The majority considers that the district court’s injunction
might have been justified if the Pandemic Response
Requirements had not been mandatory. Opinion at 69. But it
rejects this justification because, in its view, “the April 10,
2020 Pandemic Response Requirements were mandatory.”
Id. (emphasis added). The majority inaccurately asserts that
“the district court acknowledged” that the PRRs were
mandatory. Id. But the majority points to the district court’s
statement, in quotation marks, that the April 10, 2020
Pandemic Response Requirements purported to “set forth
‘mandatory requirements’ for all facilities housing ICE
detainees.” 445 F. Supp. at 724 (quoting PRR). In fact, the
PRR’s concrete terms regarding custody reviews, and the
specific language it uses to convey those terms to ICE
facilities, belie the majority’s suggestion that the terms were
likely to be understood as mandatory.

The processes the PRR laid out regarding custody
reviews afforded ICE broad discretion. The PRR does not

10
As it turned out, six months later the district court found “a pattern
of noncompliance or exceedingly slow compliance,” Supervisory Order,
2020 WL 6541994, at *13, vindicating the district court’s earlier
apprehension about “Defendants’ halting start to pandemic response”
and its conclusion that “Defendants have not . . . shown that delays or
non-enforcement of ICE facility-wide policies will cease.” Preliminary
Injunction, 445 F. Supp. 3d at 750.
 FRAIHAT V. USICE 103

impose a time limit by which custody reviews of medically
vulnerable detainees must take place. It advises facilities to
notify Enforcement and Removal Operations (“ERO”) “in
no case more than 12 hours after identifying any detainee”
who is “potentially . . . at higher-risk for serious illness from
COVID-19.” But there is no requirement that the review
itself take place expeditiously; it specifies no time period at
all. Upon notification, the PRR specifies, “ERO will review
the case to determine whether continued detention is
appropriate.” That description is followed by a citation to the
April 4, 2020 Detained Docket Review Guidance. The
custody review the PRR specifies is thus the same as the
review laid out in the previous guidance, the Detained
Docket Review Guidance.

That guidance is replete with advisory language no one
contends is mandatory. And in fact, the language the
Detained Docket Review Guidance uses to describe the
custody review process is unlikely to be understood by
readers as conveying an imperative; the language amounts,
at most, to exhortations that ICE facilities take specified
action. In the section regarding custody reviews, for
example, the Detained Docket Review Guidance uses
encouraging, advisory language such as “should,” not
directive terms such as “must” and “shall.”

Elsewhere, with regard to other conditions both guidance
documents refer to what “must,” be done, what facilities are
“directed” to do, and what branch offices are “required” to
do—regarding. See, e.g., Pandemic Response Requirements
at 8, 12 (staff member obligations), 9 (signage
requirements), 15 (notifying ICE of case rates), 16 (food
safety hygiene requirements), 9 (hand hygiene
requirements). The contrast is evident. Where guidance does
not state “‘must’ or ‘shall’ . . . but merely that [an actor]
104 FRAIHAT V. USICE

‘should’” take some action, such language affords
discretion. United States v. Navarro-Vargas, 408 F.3d 1184,
1205, (9th Cir. 2005) (en banc). Just so here.

Given the language used regarding custody review and
the internal contrasting language, the district court did not
abuse its discretion in concluding the Pandemic Response
Requirements would not be understood as mandatory with
regard to reviewing custody, and in issuing an injunction to
compel ICE to issue actual directives requiring timely
custody reviews of members of the Plaintiff subclass, and to
enforce them.

The majority similarly explains that it vacates the
preliminary injunction’s requirement to articulate minimum
detention standards for subclass members in part because
“ICE was updating its policies during the [April 2020]
preliminary injunction proceedings and mid-pandemic,”
including the April 10th “Pandemic Response
Requirements.” Opinion at 55. 11 But the result of this
“updating,” at the time the injunction issued, was a moving
target of enunciated policies strewn about with precatory
language. Those documents advised: detention facilities
should implement measures to facilitate social distancing “to
the extent practicable”; detention “facilities should consider
cohorting daily intakes”; “[e]fforts should be made” to
reduce capacity of people detained; people should be
detained in individual rooms “to the extent possible”; “strict

11
Despite the preliminary injunction, it was still the case six months
later that “[u]nder each PRR iteration, a 70-year-old with multiple Risk
Factors w[ould] be held in essentially the same conditions as a 20-year-
old, ‘ideally’ with further accommodations once they bec[a]me infected
or [had] been in close contact with COVID-19.” Supervisory Order,
2020 WL 6541994, at *7.
 FRAIHAT V. USICE 105

social distancing may not be possible in congregate settings
such as detention facilities”; and “[i]deally, ill detainees
should not be cohorted with other infected individuals.” The
injunction did not override or disregard ICE’s efforts or
impose the district court’s own pandemic detention
protections. Instead, it afforded discretion and control to
ICE, requiring that ICE “supplement” its existing guidance
with a carefully considered set of standards that could be
clearly communicated to each detention center and enforced
by ICE. Preliminary Injunction, 445 F. Supp. 3d at 751.

Additionally, the majority makes much of the fact that
the PRR mandated ICE facilities adopt the CDC guidelines
for detention facilities, deeming that overlap “[m]ost
notabl[e].” Opinion at 56. But Roman subsequently held the
CDC guidelines “do not provide a workable standard”
because of a “lack of specificity” and “key” “vague[]”
“caveats, such as that its recommendations ‘may need to be
adapted based on individual facilities’ physical space,
staffing, population, operations, and other resources and
conditions.’” 977 F.3d at 946. Given these features, Roman
remarked, “it is no surprise that the parties . . . disagree about
what the CDC guidance means.” Id. The majority strains to
minimize Roman’s conclusion, reminding us that Roman
concluded only that the CDC Guidelines were unworkable
for a preliminary injunction, not “unworkable as national
policy, which is how ICE is using them here.” Opinion at 58
n.7. True. But this observation does not impede my own
conclusion, which naturally follows. The reasons the CDC
Guidelines were “a poor guidepost for mandatory injunctive
relief” are precisely the same reasons the guidelines cannot
save the PRR: the guidelines were vague and nonmandatory,
admitting of “adapt[ation] based on individual facilities’”
needs. Roman, 977 F.3d at 946. Finally, the majority harps
on what it characterizes as the “sweeping” “nationwide
106 FRAIHAT V. USICE

relief” the district court ordered that “effectively place[d]
this country’s network of immigration detention facilities
under the direction of a single federal district court.” Opinion
at 11–12, 66, 9. COVID-19 was and is a nationwide problem.
ICE’s control of detention centers is nationwide. ICE’s
policies thus apply nationwide. Plaintiffs could not have
challenged an ICE policy specific to the detention centers
that housed them because ICE’s policies are not detention-
center specific. The district court’s injunction did not create
a nationwide policy; it mandated only that ICE change its
own nationwide policies. The injunction did not specify any
particular standards for any particular facilities—or, indeed,
any standards at all, as it only required ICE to have and
enforce its own standards.

One measure of the reasonableness of the injunction the
district court issued in April is a comparison with the advice
provided in Roman regarding ordering detainees released.
The district court in Roman had “imposed a moratorium on
[the] receipt of new detainees . . . [and] ordered the facility’s
detainee population to be reduced to a level that would
enable social distancing,” among other things. 977 F.3d
at 939. Roman explained,

If the district court determines, based on
current facts, that particular measures are
necessary to ensure that conditions . . . do not
put detainees at unreasonable risk of serious
illness and death, it may require such
measures. The district court may, for
example, require . . . a reduction in the
population to a level that would allow for six-
foot social distancing, if it concludes th[at]
action[] [is] necessary to bring the conditions
to a constitutionally adequate level.
 FRAIHAT V. USICE 107

Id. at 945–46.

Here, the district court did not order the mass release of
the particularly vulnerable subclass members in April 2020.
Although the majority characterizes the district court as
“compell[ing] release of detainees,” Opinion at 61, in fact
the April injunction required only that ICE assure the review
of subclass members’ continued custody according to its
own standards for release; there was no compelled release
here. Instead, the district court ordered a prompt,
comprehensive, enforceable review of whether each subclass
member should remain in custody, based on ICE’s own
standards for release (its Detained Docket Review
Guidance). Preliminary Injunction, 445 F. Supp. 3d. at 751.
So the majority is just wrong when it says that the relief
provided in this case was “far greater” than the relief
approved in Roman; in fact, it was considerably narrower.
Opinion at 68. The district court did not abuse its discretion
with regard to requiring individualized custody reviews.

At oral argument, the government pointed to the
requirement that it adopt detention and release standards
specifically for subclass members—that is, the medically
vulnerable detainees—as a particular burden. It is hard to
see why it is more burdensome to review a subgroup of
detainees for release than to review all of them, or more
burdensome to promulgate isolation and quarantine
provisions for a subgroup of detainees than for all detainees.
It may, for example, prove difficult to prescribe individual
rooms, not cohorting, for isolating or quarantining all
detainees, but practical to do so for medically vulnerable
individuals. Moreover, the specific release and detention
condition standards were left to Defendants. The district
court provided the government the very flexibility the
majority emphasizes is important, and limited even the
108 FRAIHAT V. USICE

flexible requirements to the Plaintiff subclasses, not all
detainees. See Opinion at 52, 61. It was up to the government
to determine which preventative measures were most
appropriate for medically vulnerable detainees.

V.

The majority nonetheless “reverse[s] the preliminary
injunction.” Opinion at 78. It also “direct[s] that all orders
premised on it be vacated.” Id.

As to this latter edict, according to the majority, “[t]he
district court’s class certification ruling depended on, and
was in service of, its preliminary injunction.” Id. at 45. Thus,
“the class certification order necessarily falls . . . regardless
of whether class certification was otherwise proper.” 12 Id.

I do not see why that is so. Although it is true that, under
Paige v. California, 102 F.3d 1035 (9th Cir. 1996), “we
could not uphold [the preliminary injunction] without also
upholding the certification of the class,” id. at 1039
(emphasis added), and thus, if the class certification order
was infirm, then the preliminary injunction might be as well,
the majority does not uphold the preliminary injunction.
Further, Roman vacated provisions of a preliminary
injunction related to COVID-19 in federal immigration
detention, just as the majority does here, while upholding the

12
I agree with the majority that “we have jurisdiction” to review the
district court’s provisional class certification order, Opinion at 45, even
though the government did not seek permission to appeal that under
Federal Rule of Civil Procedure 23(f), because the class certification
order “is inextricably bound up with the grant of the interim injunction,”
Paige v. California, 102 F.3d 1035, 1039 (9th Cir. 1996).
 FRAIHAT V. USICE 109

district court’s provisional class certification order. 977 F.3d
at 944–45.

Whether the Fraihat subclass certification is proper
depends on Federal Rule of Civil Procedure 23. Roman
provides strong evidence that such certification was proper.
See id. at 944. As the majority does not provide a contrary
Rule 23 analysis, there is no reason the district court must
repeat its own, and the majority opinion should not be read
to suggest otherwise.

VI.

I am convinced that the district court did not err in
determining that circumstances were potentially life-
threatening for subclass members; that issuing an injunction
would be in the public interest; and that Plaintiffs raised
serious questions on the merits of their reckless disregard
claim in light of these facts. The majority is nonetheless
alarmed by the modest, deferential, preliminary injunction.
Contrary to the majority’s suggestion, the district court’s
remedy does not place all federal detention facilities under
its control nor purport to set policy. The injunction directs
ICE to craft, implement, and enforce its own policies,
adequate to meet the needs of the medically vulnerable
members of the Plaintiff subclasses. As neither issuance of a
preliminary injunction to address a developing dire situation
nor the terms of the deferential injunction issued were an
abuse of the district court’s discretion, I respectfully, but
vigorously, dissent.