FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FAOUR ABDALLAH FRAIHAT; MARCO 

MONTOYA AMAYA; RAUL ALCOCER 

CHAVEZ; JOSE SEGOVIA BENITEZ;

HAMIDA ALI; MELVIN MURILLO 

HERNANDEZ; JIMMY SUDNEY; JOSE 

BACA HERNANDEZ; EDILBERTO 

GARCIA GUERRERO; MARTIN 

MUNOZ; LUIS MANUEL RODRIGUEZ 

DELGADILLO; RUBEN DARIO 

MENCIAS SOTO; ALEX HERNANDEZ;

ARISTOTELES SANCHEZ MARTINEZ;

SERGIO SALAZAR ARTAGA; INLAND 

COALITION FOR IMMIGRANT JUSTICE;

AL OTRO LADO,

Plaintiffs-Appellees,

v.

U.S. IMMIGRATION AND CUSTOMS 

ENFORCEMENT; U.S. DEPARTMENT 

OF HOMELAND SECURITY;

ALEJANDRO MAYORKAS; TAE D.

JOHNSON; STEVE K. FRANCIS; COREY 

A. PRICE; PATRICK J. LECHLEITNER;

STEWART D. SMITH; JACKI BECKER 

KLOPP; DAVID P. PEKOSKE,

Defendants-Appellants.

No. 20-55634

D.C. No.

5:19-cv-01546-

JGB-SHK

OPINION
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 COVID19 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 COVID19 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 stayat-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 sixpage 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 noncitizens 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 higherrisk 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 COVID19 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 inperson 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 followup. 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. RamirezPalmer, 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 maskwearing 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 COVID19 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 COVID19 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 midpandemic.
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’ systemwide 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, nonpunitive 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 COVID19-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 “lifealtering 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 inhouse 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 COVID19’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 nondetained: 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 COVID19. 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 lifealtering 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-yearold, ‘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 detentioncenter 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 sixfoot 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 lifethreatening 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.