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Yesterday, the Biden Administration took the surprising step of filing an appeal to a federal court order requiring U.S. Immigration and Customs Enforcement (ICE) to vaccinate medically vulnerable people in its custody. The filing was in Fraihat v. ICE, which challenges the inhumane and traumatic experience of ICE detention, affecting tens of thousands across the country.

On June 23, Judge Jesus Bernal of the U.S. District Court for the Central District of California ordered the agency to make COVID-19 vaccines available to all people in ICE detention with medical risk factors that increase their risk of serious COVID-19 complications. This followed multiple previous court orders admonishing ICE for systemic failures in their response to the pandemic, starting with the Court’s April 2020 injunction ordering ICE to identify and review for release those with risk factors in its custody and establish other procedures for limiting the spread of COVID-19 inside detention centers. 

“As a legal matter, this appeal is disappointing. As a public health matter, it’s outrageous,” said Elizabeth Jordan, Director of the Immigration Detention Accountability Project at the Civil Rights Education and Enforcement Center. “Judge Bernal’s order is consistent with legal standards and protecting people in ICE detention from the Delta variant by offering vaccines is something the Biden Administration should be enthusiastically embracing, not fighting tooth and nail.” 

“It is truly appalling that ICE, a known superspreader agency, would seek to reverse a court order recognizing its obligation to vaccinate medically vulnerable people it chooses to jail. The Biden Administration’s appeal completely contradicts its own rhetoric on the importance of vaccination to end this pandemic. It threatens to place in jeopardy the lives of thousands of people at increased medical risk at a time when a dangerous variant of COVID-19 is rising across the country and more and more people are being admitted to ICE detention,” said Rosa Lee Bichell, an attorney at Disability Rights Advocates. “This kind of disregard for human life highlights the importance of reviewing people for release from this unjust system, as ordered by the Court nearly a year and a half ago.”

“The court only ordered vaccines be offered because ICE had no real plan in place, resulting in unacceptably low vaccination levels in these extremely high-risk settings,” said Veronica Salama, an attorney at the Southern Poverty Law Center. “The order gave ICE 30 days to vaccinate a few thousand high-risk people, a fairly straightforward proposition. But, rather than fulfilling its responsibilities, ICE has chosen to fight the order as COVID cases once again spike across the country and the ICE detained population balloons. It is abhorrent.” 

Fraihat v. ICE was filed by the Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Southern Poverty Law Center (SPLC), Orrick, Herrington & Sutcliffe LLP, and Willkie Farr & Gallagher LLP in August of 2019.

Read more about the case here. 

 Civil Rights Education and Enforcement Center (CREEC) is a nonprofit membership organization whose goal is to ensure that everyone can fully and independently participate in our nation’s civic life without discrimination based on race, gender, disability, religion, national origin, age, sexual orientation, or gender identity.https://creeclaw.org/.

Disability Rights Advocates (DRA), founded in 1993, is the leading national nonprofit disability rights legal center. Its mission is to advance equal rights and opportunity for people with all types of disabilities nationwide. DRA represents people with the full spectrum of disabilities in complex, system-changing, class action cases. Thanks to DRA’s precedent-setting work, people with disabilities across the country have dramatically improved access to health care, employment, transportation, education, disaster preparedness planning, voting, housing, and juvenile justice.https://www.dralegal.org.

The Southern Poverty Law Center is a catalyst for racial justice in the South and beyond, working in partnership with communities to dismantle white supremacy, strengthen intersectional movements, and advance the human rights of all people. For more information, visit www.splcenter.org.

Orrick has 27 offices worldwide, and focuses on serving the Technology, Energy & Infrastructure and Finance sectors globally. Clients worldwide call on Orrick’s teams for forward-looking commercial advice on transactions, litigation and compliance matters. https://www.orrick.com/en/About-Us.

Willkie Farr & Gallagher LLP is an international law firm of approximately 850 attorneys with offices in New York, Washington, Houston, Palo Alto, San Francisco, Chicago, Paris, London, Frankfurt, Brussels, Milan and Rome. The Firm is headquartered in New York City at 787 Seventh Avenue. Tel: 212.728.8000. https://www.willkie.com/