CHLOE HOLZMAN: Hi, everyone. I think we're just waiting a minute for folks to trickle in so we can get started.
Okay, I think we at least have a critical mass to get started. Welcome, everyone. You are in the workshop for Fraihat v. ICE: Litigation Lessons Learned from the Community, Clients, and Other Advocates.
My name is Chloe Holzman. I am a staff attorney at Disability Rights Advocates. I use she/her pronouns. I am a white skinned Latino woman with dark brown well, let me not lie at the top of our presentation. I have gray brown hair. I am wearing a blue and gray striped cardigan and my Zoom background is blurred, but you can see the outline of my Brooklyn living room behind me a little, which is where I'm speaking to you from.
I am here with my colleagues to talk to you today about Fraihat v. ICE, U.S. Immigration and Customs Enforcement, which is an ongoing nationwide class action regarding the ICE detentions. So I'm going to have each of my presenting colleagues, Rosie and Liz, introduce themselves.
Then, after that, I'm going to start by giving you some background about the case. I know that there have been many wonderful panels at this symposium talking about whole fields of litigation or issue areas with multiple cases. This workshop is focused on just one case. But what a case!
As we think you'll see, this case has a lot going on, and we think it really showcases some of the highs and lows of class action work generally, but also movement lawyering, immigration work, and advocacy around disabilities.
So I will try to explain what the case is about, and it's complicated procedural posture. Next, Liz is going to describe a bit about the process we undertook to identify the relief sought in the case and our legal theory, including some of the community engagement work that we that went into that.
After that, Rosie's going to pick up further on the community engagement piece and talk about some of the tools and strategies that we developed as a team for trying to keep our work client centered, especially as we responded to shifting circumstances during the pandemic.
Finally, the three of us are going to reflect on some lessons learned, takeaways, and what we hope are practical tips for other practitioners. And we want to leave room for questions at the end, but please do feel free to put questions in the chat as we go, and we will do our best to respond to them.
So with that, I will ask Rosie, if you can introduce yourself, please.
ROSA LEE BICHELL: Hi, everyone. This is Rosie. I am a staff attorney at Disability Rights Advocates. I use she/her pronouns. I am a white woman with chin length brown curly hair. I'm currently wearing a green collared top and my Zoom background is blurred, but I'm in front of a creamish wall with a picture right above my head that's black and white.
I will now pass it to Liz.
ELIZABETH JORDAN: Thanks, Rosie. Hi, everyone. My name is Liz Jordan. I'm an attorney with CREEC, the Civil Rights Education and Enforcement Center. I'm based in Denver, Colorado. I use she/her pronouns as well and I am a white woman with glasses and curly brown hair, also in front of a blurred background, but you can see a doorway behind me.
My work primarily focuses on immigrants in detention, especially those who have medical vulnerabilities and/or disabilities. It's great to be here today.
CHLOE HOLZMAN: Thanks, Liz.
So this is Chloe again, and I'm going to actually start with a quote from Fraihat, one of the plaintiffs, and the case's namesake. Mr. Fraihat said, "To me the case the beginning to take the law back, after the widespread criminalization of immigration for decades. The lawsuit means a lot to me. I am dedicated to helping others via this case."
So, Mr. Fraihat draws the connection directly there between immigration, which is supposed to be a civil process, and criminal law enforcement. And it's worth, I think, just starting out with some notes about our criminal justice system and its intersection with disability rights work. I think it's not a surprise to people in this Zoom. Radio, people with disabilities are dramatically overrepresented in the American carceral system.
According to the Bureau of Justice Statistics, people behind bars are nearly three to four times as likely to report having a disability as the non incarcerated population. Additionally, one in five people held in prisons and jails are reported to have a mental health disability, and as we can imagine, that number is probably quite a bit higher in actuality.
As part of the American carceral system, the immigration detention system jails thousands of people with disabilities every day with a significant portion of the detained population going through what is essentially a prison to detention pipeline. That means that people serve prison sentences and then get handed over to ICE, which detains them for deportation proceedings.
Something to note is some of the particularities means that certain disabilities might be even more represented. For example, the mandatory detention of asylum seekers, people who are fleeing their home countries to come to the U.S. results in mass incarceration of people with extensive trauma.
There are currently nearly 22,000 immigrants being held in detection across around approximately 150 ICE facilities. And those facilities are a mix of about 40 to 50 facilities run directly by ICE, as well as ones where ICE holds people in detention through contracts that it administers, or I think fails to administer properly from our perspective.
In those facilities, you know, across all ICE facilities, people are routinely detained without healthcare and disability accommodations, and they are subjected to arbitrary and punitive isolation. Thousands of people have suffered in detention. Many people abandon viable claims that they have for relief or accept deportation out of desperation to be released or to obtain necessary medical care.
And sadly, dozens have died as a result of insufficient care in detention. So that's a bit of the bleak backdrop for our lawsuit.
What is the lawsuit? So this is a lawsuit that was filed against ICE and DHS, the Department of Homeland Security, in August 2019 in the U.S. district court for the Central District of California Before Judge Jesus Bernal. This is challenging the Federal Government under the constitution for failure to and for punitive use of segregation. So those are our fifth amendment claims.
And then in addition, we have claims under Section 504 of the Rehabilitation Act for failing to ensure that people with disabilities in immigration detention are provided accommodations and failing to ensure that they do not face discrimination.
The case was filed on behalf of 15 individuals and two organizational plaintiffs. The individuals at the time that the case was filed were detained at eight different facilities in six different states, so representing a class of, again, tens of thousands of immigrants imprisoned by ICE on any given day.
And our organizational clients are two non profits, Alotra, and the Inland Coalition For Immigrant Justice, both non profits based in California.
Counsel for this case. So, along with Disability Rights Advocates, where Rosie and I work, and CREEC, the civil rights education and enforcement center where Liz works, we are also co counseling with the Southern Poverty Law Center, SPLC, and two law firms. So it's a big cast of characters.
So, getting back to the case, we filed the case in 2019, and then 2020 happened, and as COVID 19 spread across the world and medical and public health experts quickly realized the elevated risk that it posed for people in congregate settings, we heard from our clients who are detained in immigration jails across the country and that ICE was operating as if nothing was out of the ordinary.
So, on March 25th, 2020, actually, exactly two years ago, we filed a motion for a preliminary injunction and for emergency class certification seeking injunctive relief.
I'm going to quote again from Mr. Fraihat. He says, "At the beginning of the pandemic, I was detained and scared for my life. When I asked medical staff what I should do to protect myself because of my higher risk of infection, they just told me to, quote, get a tissue."
So we filed for this PI. The court ruled in our favor. That meant that the Court actually ordered ICE to establish a system to review for release people in detention with COVID risk factors and to issue system wide policies, quote, to reduce their risk of COVID 19 infection pending individualized determinations or the end of the pandemic.
So, what this PI did, along with the certification of the subclasses, is establish a subclass of people in detention with risk factors for COVID tied to CDC definitions, and this along with our follow up efforts to enforce the PI set up a process that has come to be known as Fraihat Custody Redetermination, and that's where people in detention who have these COVID risk factors are entitled to have their custody reviewed and essentially a presumption that they should be released if possible.
Significantly, that review process applies no matter the person's custody classification. So, even if they have previously been convicted of a crime that subjects them to what ICE considers mandatory detention, they still are entitled to a Fraihat redetermination. And since January, a redetermination review. It's not guaranteed that they would be released, but they have to at least have that assessment done.
And I'm really thrilled to say that since January of this year, we believe that approximately 36,000 people have been released from ICE detention pursuant to Fraihat.
I'm going to quote another of our clients. This is from Jose Hernandez, who was in ICE detention for five years before being released after we got the PI. He said, "It was really scary during the pandemic. We heard about the pandemic from the news playing on TV, but ICE never told us what was going on and a lot of us got sick. Thankfully, most of us got out during the pandemic, but it got scary at times."
So that continues to be a really exciting outcome, but as I mentioned, we had to do a lot of work to enforce the PI.
In June 2020, we filed a motion to enforce after there was clear evidence that ICE was not meaningfully reviewing and releasing people. And they were also continuing to fail to do things like clean properly or provide people with personal protective equipment, like masks.
The Court granted that motion to enforce. In January 2021, we did another motion, this time requesting a Special Master. The court granted that motion as well, finding a pattern of noncompliance or exceedingly slow compliance by the government that was continuing.
And through our work with the Special Master, ICE was ordered on June 23rd, 2021, to offer vaccines within 30 days to all people at heightened risk for COVID 19 in their custody, which is something that they had really shown no concerted or systemwide efforts to do previously.
So, all of that was great in the background. There was a process an appeals process kind of percolating, and so I want to switch gears and talk about that. The government appealed the PI in September 2020, and then appealed the rulings that flowed from the PI. So, the enforcement ruling and the Special Master appointment were also appealed.
There was an argument on the first appeal of the PI in the ninth circuit. That was held in December of 2020. So almost a year after the appeal was filed.
The ninth circuit argument was before a panel of judges, judges Berzon, Miller, Bress, one Clinton appointee and two Trump appointees. And I think it was clear from the argument that the two Trump appointees were quite hostile to our position.
We waited for a decision almost another full year, and in the meantime, the PI continued to be enforced and people were continuing to get released. In September of 2021, the parties jointly requested a referral to the ninth circuit's mediation program. But in October of 2021, the ninth circuit denied that request to let us go to mediation and issued a decision that reversed the PI and nullified it and subsequent ordered that flowed it from.
Liz is going to talk in a little bit more detail about the ninth circuit decision, just to frame things that it focused on the fact that ICE showed it had promulgated some COVID related policies and that was basically enough for the Court. It seemed to accept the premise that any problems on the ground should be challenged at the facility level, not on the system wide basis.
And pursuant to our 504 claims, the Court specifically concluded that plaintiffs had not established a likelihood of success, had not identified any benefit that they were entitled that they were denied, and the decision states, 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.
So, you know, at the beginning, I mentioned this case has had a lot of highs and lows. This was definitely a low. So where does that leave us now?
Even though the Ninth Circus was a bit salty, I would say, about letting us participate in its mediation program, we are currently in mediated settlement negotiations that we worked out on our own through the central district of California before a magistrate judge.
And we are continuing to evaluate our next steps in relationship with the Ninth Circuit opinion. We are still deciding whether we want to seek a petition for review en banc of that decision. Since we are in these mediation discussions, we have been submitting joint requests with the government to prolong the timeline we have to make that decision.
So right now, we have until June 6th of 2022. Until then, the PI remains in effect and people are still continuing to get released under the PI. But that brings us to where we are today. And I will turn it back over to Liz.
ELIZABETH JORDAN: Thanks, Chloe, for the excellent sort of table setting. This is Liz speaking. I'm going to talk about a lot of the process we went through in sort of digging into filing the complaint itself, and especially identifying relief.
I forgot to say during my intro that I am accompanied today by my 1 year old daughter Frieda, who is home sick from daycare, so if you hear a baby in the background, that's her.
But turning to my actual topic. We engaged in extensive community engagement ahead of case filing. So, as Chloe made really clear, there are a lot of people in detention. You know, being held by ICE. A small number of them have lawyers, but there is a robust legal community of of community advocates and lawyers sort of working with people impacted by this system, and we really relied on that community to point us in the right direction and help us gather evidence and find plaintiffs.
I want to start by saying this is an incredibly harmful system, and it's no secret to anybody who's paying even a little bit of attention to what ICE is doing how harmful it is. There are, you know, just dozens and dozens of reports put out about substandard medical care, medical neglect, people dying in detention, as Chloe mentioned.
And those reports are not just from non profits and allies like Human Rights Watch, but also from the government itself. So the Inspector General for the Department of Homeland Security has issued several really scathing reports about ICE.
We realized very quickly that people going through the system were intent on calling out its harms and trying to hold a system accountable. There has been much less accountability for ICE as an agency, especially with regards to its carceral practices, than I would say any of the prison systems or other criminal carceral settings. ICE has just gotten away with this for a really long time.
So, accountability and legal liability was really, really important to people. We worked extensively with community organizers. For example, inland coalition, who ended up being one of our organizational plaintiffs, does extensive community organizing. They support a lot of people with medical issues and disabilities, and they shared with us their kind of roster of clients, shared names with us, told us about actions and other organizing they were taking. And just really gave us a lot of leads for evidence and investigation.
People with mental health disabilities in ICE custody aren't entitled to appointed council. It's called the National Qualified Representative Program. The NQRP providers in the Los Angeles area gave us a lot of input. I went to one of their regular meetings. They also gave us client referrals for any of their clients who wanted to speak with us.
We spent probably six months extensively interviewing people in detention. I spent a lot of time traveling to California and heading up to the high desert to meet with people at Adelanto in particular, because that's where a lot of our individual clients ended up being detained.
Finding a remedy so, I'll conclude this part by saying liability was something folks believed in very strongly, and if you read our complaint, it's over 200 pages of public reporting. So, you know, lots of evidence of liability. Remedy itself is trickier. And one thing we were wary about from the beginning and still kind of puzzling through is avoiding remedies that further entrench inherently inhumane and unjust system.
For example, we considered thinking about just procedural due process claims for people in segregation because it was very clear that they weren't getting much process.
But that just kind of piles more process onto, you know, a really harsh and violent system and doesn't actually get people out of segregation. So we didn't end up making a procedural due process claim.
Another consistent theme we ran into in the course of our conversation with folks that Chloe also sort of alluded to, people who had been through this prison to ICE pipeline, especially those who had been what they call designated ADA in the prisons. So people with disabilities that had been identified in the prison system found that the conditions in ICE detention were so much worse with regards to accommodations, grievance processes, et cetera, that at least one person told me he filed a request with his ICE officer to go back to Pelican Bay Prison in California and fight his ICE case from there, because he preferred to be in Pelican Bay.
One last thing is that this is a case that sort of tackles the system at its core with system wide policies. One thing that we were worried about was the opposite approach. So facility by facility relief. There is a high rate of transfer within the system, and so the real risk of whack a mole'ing as people just moved around. And if you read our plaintiffs' stories, many of them have been through multiple facilities.
There is also sort of the constant threat of ICE bringing new contracts, which we are seeing all the time, you know, as recently as a few weeks ago they signed a new contract for a very large private detention center in Pennsylvania. There's also been huge expansion of contracts in the deep south, Mississippi and Louisiana especially.
And so, sort of tackling the problem in one place to have it just pop up in another seemed insufficient to sort of get at the root of it.
With regards to developing our legal theory, our disability case really centers on Ninth Circuit precedent about the affirmative duty of detention settings, or the agencies doing detaining, to identify and track disabilities and provide accommodations. So these are cases like the Armstrong case, Updike v. Multnomah County. Updike has great information about title 2 and 504 including an affirmative obligation for public entities.
Again, the facility by facility approach lead us to sort of sorry, the limits of the facility by facility approach led us to think about centralized policies and really frame this case as a monitoring and oversight case, because of the diffuse huge sprawling nature of this system.
One thing that ICE, again, in all of the public reporting that we relied on, one thing they consistently get called out on is a failure to monitor and oversee their contractors. They also failed to, you know, hold the contractors to account. They failed to declined to engage in contracts with private prison companies that have engaged in discriminatory and other legal behavior.
And so thinking about monitoring and oversight as the kind of through line for our case, tying it all together, the various policies and practices that we are taking on.
That being said, this poses a bit of a catch 22. A major barrier to our success has been the lack of monitoring and transparency in the ICE system. You know, if you read the Ninth Circuit order, for example, that Chloe mentioned, we are they sort of down played the evidence we brought to them of individual experiences going through detention a as merely anecdotal. And yes, responding to the chat, the good case was Updike, and I'll drop the cite into the chat in just a second.
Oh, thank you, Chloe. The catch 22 that I'm identifying is that ICE runs a really difficult system to get an accurate window into, and then uses that to say that we haven't proven systemic violations. Whereas anecdotal evidence shows that systemic violations play out often literally on people's bodies.
But we are also looking for and holding up systemic policies and systemic monitoring and oversight failures, as I mentioned.
One other thing we think is worth talking about is you know, at CREEC, we are expressly abolitionists. I think many of our colleagues are as well. Thinking about litigating a conditions case from an abolitionist principle, recognition of the system as inherently inhumane and sort of suspect in its existence. And trying to figure out how you actually litigate that, when, you know, we as lawyers have to accept so many of the premises of the system as part of our lawyering, you know, and trying to think about how to push become on that. Trying to remedy, not further entrench the system. And, you know, for us, abolition is a practice, and I think a lot of the sort of smaller steps we have taken in this case in which we'll be going over some of those in just a minute.
You know, sort of further abolitionist principles, while also doing the day to day of litigating.
And then with regard to the preliminary injunction, I hope folks got the sense from Chloe that that was never something we really anticipated doing in this case. What was happening at the beginning of the PI was a lot of our colleagues in the immigration advocacy space were bringing individual or small group habeas cases, challenging practices at a specific facility or people's risks at a specific facility.
And those cases were righteous, badly needed, and, you know, overall very successful.
However, having spent a couple of years thinking about ICE's systems in preparation for filing Fraihat, it became very clear to us very fast that there was going to be a system fail with regard to the pandemic as well.
And so, you know, we took that angle and bring in our case, thinking about the broader system response. You know, especially in congregate settings where people are at risk, especially in a system like ICE where people transfer very rapidly and where these transfers were not slowing down in the pandemic, a systemic challenge seemed to us to be really, really important.
And for what it's worth, ICE had put out a few systemic policies specific to the pandemic in early 2020 that we could use as the basis of our challenge and as Chloe also alluded to, that basis was something the 9th Circuit panel took issue with. But, you know, gave us a framework for mounting a pandemic specific challenge.
Two sort of important points with regards to community engagement and the pandemic, and the preliminary injunction. The first is that we we are really proud of the amount of evidence we brought that came from impacted people and their advocates. So if you read our filings, there are ton of declarations we got from on the ground legal providers, from our clients. And telling the story of what was really happening on the ground.
The other important piece that we heard loud and clear from folks was this mandatory/non mandatory shift, split is one that we tried to bridge. So our order gives people in so called mandatory detention access to the release mechanism as well. You know, making sure that nobody is left behind is an important principle of ours. And especially knowing that people in mandatory detention are, as Chloe mentioned, lots of people with disabilities. And people whose health has already been adversely affected by their prior carceral experiences, not leaving behind that community in particular was very important to us.
So, I'll stop there for now and pass it over to Rosie.
ROSA LEE BICHELL: Hi, everyone. This is Rosie again. So, both Chloe and Liz have touched on, in really important ways, how we sought to engage community and community advocates in this case from before we filed. I'm going to give a little bit more detail in terms of how we sought to engage in movement lawyering in order to respond to shifting circumstances of this case.
So before I do that, I just want to define movement lawyering. Movement lawyering is, in a nutshell, taking direction from directly impacted communities and from community advocates on the ground, rather than imposing our leadership or perceived expertise as lawyers.
When we're talking about a case of this kind of scale well, when we're talking about legal advocacy in general, I think it's important to keep movement lawyering principles in mind. But especially when you're thinking about a case of this kind of scale that is challenging systemic issues, which means that it has the a real risk for systemic harms while also having possibility of systemic benefits.
It's especially important for us as advocates to engage in movement lawyering and to have our work be guided by those who will be directly affected beyond just our named plaintiffs and organizational clients.
So that being said, this case, as Liz and Chloe have both mentioned, was started based on these kinds of principles of listening to those who are affected, listening to those in community advocates in order to get this thing going.
Our team engaged extensively with people in immigration jails and their families and communities ahead of this case, and I just want to once again elevate our organizational clients who are really key in getting that off the ground.
So, inland coalition for immigrant justice, which as the name would suggest, is itself a coalition of community advocacy organizations. And a cross border organization that is rooted in client centered harm reduction based practice. And we also were able to connect obviously with our named plaintiffs, who at the time of filing were all detained across the country, and gratefully have since been released. Some, unfortunately, have been deported.
But they also were able to connect us with others in detection.
So it was really important to get this case off the ground with community engagement and thinking about movement lawyering principles. But our continued engagement with partners across the country has been really integral in guiding our advocacy in immigration detention as this case wears on.
I think it goes without saying that the pandemic affected our ability in multiple ways. Twofold. On the one hand, it limited our ability to engage in person with detained folks across the country, and this is especially so as facilities across the country shut down and prohibited visitation in one effort to prevent the spread of COVID. I think if you read any of our preliminary injunction filings and subsequent filings, you'll see that's one of few efforts that they made to prevent the spread of COVID.
But anyway, on the other hand, as folks were released and others on the outside shifted mostly to remote interaction, and became more comfortable and familiar with, for example, Zoom, it allowed us to make connections more readily with and among formerly detained people and community advocates in order to provide input in real time to respond to the ever shifting pandemic.
So after I mean, during the pandemic, we continued to engage with the community in terms of thinking about relief for the broader case, and to do so, we organized multiple listening sessions with stakeholders in affected populations and the broader advocacy community, in addition to having listening sessions with all of our named plaintiffs and organizational clients.
So those are kind of two sorts of buckets of listening sessions that we found really valuable.
So, it was really important to get the perspective of our named plaintiffs. I think as lawyers, it's not a surprising thing to say. But what was really special about the listening sessions that we were able to organize with our clients was that they were able to be in conversation with each other and more broadly share with stakeholders and advocates in order to help guide our priorities in the case.
Detention itself is an inherently isolating institution and state of being, and so being able to gather our clients and other formerly detained people and folks from the advocacy community, in order to be able to communicate and share their experiences was incredibly empowering and helped all of us and them understand the issues they experienced were not isolated.
It's especially important that we had this because it's unusual to have this kind of ability to share when we're thinking about carceral advocacy, but then when you add the added element of having this kind of case when we're talking about carceral settings across the entire country, it was really, really valuable. And it was important that we were able to achieve this because a lot of our clients were able to get out during the pandemic. I just want to make a note here that unfortunately, due to the barriers to contacting people in detention facilities, we weren't able to loop in currently detained folks to those listening sessions, because of the restrictive nature of contact in detention. But we did really seek to elevate the voices of formerly detained and otherwise incarcerated people.
So a major Liz I think touched on already some of the themes to emerge from those listening sessions, primarily the sorts of not wanting to leave folks under so called mandatory detention behind in any relief sought.
But another I think really important theme that came out of those sessions was especially coming from community advocates was the absolute need for further advocacy at the intersection of immigration, disability, and incarceration. And a desire of advocates and folks within each of those spaces to learn more about others in order to bridge those siloed areas of the law and seek more holistic relief for their clients, Fraihat class numbers, or otherwise going through the immigration jail and adjudication system more broadly.
So beyond those listening sessions, we were able to engage in the community in a variety of other ways as well. Pretty quickly after the COVID specifically, with the COVID 19 preliminary injunction enforcement. Pretty quickly after the we were granted the preliminary injunction, we as a team created tools and guidance for advocacy for individuals within the system.
Unlike the criminal legal system, folks in immigration detention are not guaranteed counsel, except for the circumstance that Liz mentioned in terms of folks with certain mental health disabilities.
This means that a lot of immigration advocacy is pro se, so we worked really hard to create accessible and usable template materials for folks to be able to represent themselves pro se in the Fraihat custody review process.
We also tried to create guidance for practitioners beyond those who are just beyond self advocates, so for immigration attorneys who were representing individuals who might be affected. We can circulate a link for all of those resources if folks are interested, but in a nutshell, those included kind of pulling useful quotes from various orders, template requests.
And we also had have had a system of responding directly to individual outreach from practitioners and family members.
We also soon after the PI conducted a "know your rights" presentation, primarily directed at communities of folks in detention in Florida, just the nature of how that Know Your Rights presentation was organized. But the video was recorded and has since been shared more broadly, and we understand that to have been useful for folks learning about the intricacies of really shifting process that was created under the PI.
Also early on in the pandemic, after we received the preliminary injunction, we set up a pro bono project where we were we mentored and advised pro bono lawyers for individual advocacy in order to push for individual Fraihat subclass members.
That did achieve some successes. Unfortunately, it was relatively short lived because of our own lack of capacity and kind of general burden of monitoring enforcement of the preliminary injunction, and as Chloe mentioned, monitoring enforcement required going back to court several times. And so it became a bit untenable.
I now want to talk about part of our engagement that I think has proven to be really, really important, which is the hotline that we were able to get set up for folks in detention across the country. So, as part of the preliminary injunction, Judge Bernal mandated that ICE issue notices regarding custody review process and set up free and confidential hotline in every detention facility across the country. I guess to be a little bit more precise, that was part of the provisional class certification.
So the fact that we were able to get a free and confidential hotline set up where folks in detention could reach us directly was really important at that time for several reasons, and I'll go into why it has continued to be important.
One is that there really is no uniform and consistent process across the immigration detention system for illegal phone calls or contacts to detain folks. This is kind of just one feature of this really diverse and our complaint might indicate unmonitored patch work of contract facilities, immigration I mean, private for profit prison companies, county jails. There's just a lot of different procedures, depending on the facilities.
So having this one unified hotline was really important for us, especially, as I mentioned, because so many facilities were shutting down during as a result of COVID. So they shut down visitors. A lot of times, including legal visitors.
So this hotline proved to be an incredibly valuable resource in that we were able to serve as a connection I mean, we were able to provide resources to detained folks directly in detention. So we would that would call us, we'd provide Fraihat guidance and resources to callers and their families and attorneys.
And also on a more basic level, we were able to provide the service of listening to the experiences of mistreatment for those inside, which was especially valuable when there was such limited interaction with the outside as visits were shut down.
So, another reason why this hotline was and continues to be so valuable is that it's been really useful in order for us to be able to keep tabs on what issues are going on on the ground as implementation progressed, in terms of identifying systemic issues of noncompliance and otherwise just being able to report back on how conditions related to COVID and otherwise are happening on the ground.
So, that being said, there were some challenges and continue to be some challenges with this hotline. One being is that it's quite resource intensive in terms of we are a pretty large team, but we do have limited I mean, we have limited capacity to staff, and we've tried to figure out different kinds of, I don't know, staffing organizations, including trying to loop in law students to staff the hotline.
But because of the complexity of the issues and the constantly shifting nature of enforcement, it became really difficult to have nonpermanent staff on the hotline.
Another really important issue is that a lot of the callers calling in report really, really often traumatic experiences, COVID related or otherwise, and so it really kind of highlighted the limits to the kinds of support we could provide, and there are a lot of issues that we and our staff are powerless to address beyond referrals to other advocates.
So it also kind of when we're thinking about a case of this systemic nature, it really exemplified the limits or inability to provide individual advocacy.
Nonetheless, the hotline continues to be our main method of keeping in contact with the detained folks across the country, which is really key, as I've said, for a case of this scale and breadth. And we are currently contemplating ways to make it more permanent beyond the pandemic and beyond the expiration of the preliminary injunction.
So, at this point, we are now going to shift gears a bit and we're going to talk about kind of lessons learned and tips for other practitioners, starting with Liz.
ELIZABETH JORDAN: Sorry, I lost my mute button. This is Liz. Great.
So, picking up on something I alluded to in my earlier comments. One of the lessons we've I don't know that I say we've learned it, because I really think we're still thinking about it, but one of the things we really have identified is a tension between our abolitionist goals and when I say abolition, I realize I didn't define that for folks before. But just to be clear, we mean the end of immigration detention as a practice.
The tension between that goal and conditions litigation. This case is really a clear example of the dangers and benefits of broad scale class litigation, what you might call systems change litigation. The PI, especially crystalized a major benefit in the form of liberatory relief for thousands of people. It also crystalized the class that we undertook, especially with regards to the hostile appellate panel and the bad law that came out of that panel.
And a concern for what that panel's opinion means for this kind of advocacy in the future.
Impact litigation, you know, can advance broader abolitionist goals. It also runs the risk of hindering them. Examples of advancement would include [indiscernible] for people in detention, which to me really tells a story about the fact that this many people could safely be released undermines the kind of premise of detention in the first place.
We also established shared principles as a team about centering our clients, keeping them in keeping in close communication with them and giving them the tools to be in the driver's seat. And also the way that we communicated with opposing counsel.
Some ways that litigation like this can hinder broader goals. As I alluded to before, the risk of the growing system. A lot of the remedy that comes out, ICE says that's going to require a lot more money. Our clients, especially our community and organization clients are really wary of any relief that entrenches the system or legitimizes detention. As many of you who work in carceral context doing litigation may well know. We've tried to be really intentional, patient, and careful in formulating our remedy with as much input from folks close to the ground as we can get.
Another risk is legit mating the idea that some people need to be in detention, and this is I think what we are talking about when we express our concerns about the portions of our class that are in so called mandatory detention, and the risks of leaving behind folks like that.
Another hindrance is the ninth circuit order, as I alluded to. You know, it is not good law that was created, and it is systemic. So, you know, one thing we've been kind of grappling with or reflecting on is whether the release of thousands of people, but the risk of bad precedent going forward, you know, is that at an acceptable tradeoff.
And for us in some ways, I think it is.
The order really focused on the unique context of COVID. Talking about our proof, as I mentioned, sort of the anecdotal nature, so called anecdotal nature of our proof, and also the fact that ICE did enact some policies. They also sort of nodded at the idea that because the system is so big, it is effectively unchallengeable as a system, which is kind of mind boggling as a principle.
One thing we've been thinking about is how canonable this order is to the pandemic. And, you know, I think in a lot of ways, the proof issues are canonable. One thing that the Court really hinged on in its reasoning was the fact that essentially we didn't give the policies time to take effect and protect people.
And with regards to, you know, challenging other aspects of ICE systems and their policies, many of those are long standing. The failures have been known for years, if not decades. And so the sort of fast nature, sort of rise of the pandemic maybe makes it a unique set of circumstances that means that this decision is not that bad of law for other contexts.
The last thing I'll say is that the procedural posture of the decision itself was also quite odd. We were arguing in December 2020 about a record an emergency based record that had been made in March of 2020, but ICE had never sought a stay.
And so, you know, in many ways, the sort of record at issue was quite stale. And I think that's kind of unique. The last thing about the order is that our appellate team the appeal was handled pro bono by some of the excellent folks in the appellate practice at Orrick Law Firm, and they did a really strong job of I think setting this opinion up to lose as narrowly as possible, you know, even though this is a systemic decision and it's pretty big in its scope and implications, I think that there was smart work done on the advocacy appellate advocacy level to try to limit the damage that it could do.
And I think frankly, as soon as we saw the panel draw that we got, the advocates really sort of sprung into action to try to set this up so that it would not be the worst possible outcome.
I think Rosie is now going to talk about lessons learned with regards to enforcement.
ROSA LEE BICHELL: Hello everyone, again.
So, as Liz said, I'm going to talk a little bit about challenges to enforcement. And this is going to be mostly about the COVID preliminary injunction, though I think there are themes that apply to the broader case as well. So in terms of a theme that I think has already come up in this presentation, that Liz just mentioned, is the issue of kind of the inequities and access to information here.
So, information imbalance, I guess is how people usually frame it. And also in terms of how and our lack of access to people or difficulties in accessing people in detention despite the high level of access we have via the hotline. In order in terms of when we raised, quote unquote, individual issues that we think are indicative of broader systemic noncompliance and failures in monitoring.
We got a lot of responses from ICE saying that those were merely anecdotal individual issues. And were not indicative of broader issues of systemic failures. So that kind of gets us to a point in terms of when we're thinking about enforcing, how to enforce the preliminary injunction, thinking through an enforcement order versus a contempt motion.
There are some inherent limitations of federal court orders in situations that are this sort of top down, when we're comparing to similar cases that are more facility by facility, which can get a lot more into the nitty gritty of how things should be done on the ground and how things are happening on the ground. It's easier to draw connections to indicate more systemic issues when you're thinking about a smaller system than a bigger system. That might be something obvious, but that's I think that's a major lesson learned here.
In terms of the limits of the Special Master, for anyone who's or experiences with the Special Master, for anyone who is considering seeking a Special Master, I think we would have preferred to more clearly have delineated the scope of his investigative capacity, precisely for the reasons that I just mentioned in terms of how we with ICE having custody of our class numbers, it's controlling so much information that really gets at our ability to monitor enforcement.
It would have been more helpful we would have been able to more effectively monitor and the Special Master would have been able to more effectively monitor had we had a clearer description of exactly what kind of information he could have had access to.
We also encountered, in terms of the Special Master, some points that I would recommend for folks who are thinking about engaging with Special Masters that you would need to be prepared to push for kind of authority that may already be clearly delineated. For example, in the order appointing our Special Master, there was a requirement or a description of monthly reports and recommendations.
And the realities turned out that we only in several months of having the Special Master in place, we only were able to get two reports and recommendation that he submitted to the Court.
I think just this is also maybe something obvious, but it's still something to keep in mind, is that when you're thinking about seeking a Special Master, it's really important to seek as much feedback from other practitioners, including thinking through in order to be cognizant of biases for both the team on our end, but also the adjudicator themselves.
So now thinking more about the limits of our relief, one thing that's specific to, when we're thinking about immigration detention, is that federal immigration law is typically interpreted to only grant the Department of Homeland Security, ICE, or an immigration judge decision to order release of people detained by ICE. This is subject to some exceptions such as habeas relief.
This means that Judge Bernal couldn't outright order ICE to release people. I think I saw a question directed a little bit at this in the chat, so I think I'll try to answer as I do so, as I explain so.
Judge Bernal couldn't directly order that ICE release people because we had not framed this as habeas relief.
So when you're thinking about when you're on a smaller scale, you can get a lot more specific and get more explicitly relief oriented. It's really hard to do so on a systemic level. But I guess at this point, I can try to answer the question. I'll answer the question more specifically later on at the end when we're in questions.
Another limit to the relief we got with the COVID preliminary injunction was a lack of grievance or appeal process. This also gets at sort of the lack of the issue of leaving so much of the discretion in terms of release up to ICE due to the limits of federal Court order's ability to order ICE to release folks.
So the only option for people denied release when they were going through the Fraihat custody review process was basically just to keep submitting more and more requests. This can leave people in detention and their communities really demoralized.
Also a piece is that we understand and found that folks were more successful in their requests if they were able to submit medical records, including those from their time in detention. But an issue there is that ICE was controlled, their access to those medical records. And so ICE, again, this sort of information imbalance with ICE controlling so much information that was actually useful to support request for release, it posed a barrier in and of itself.
One last thing that I think is really important to keep in mind is that despite our hotline and the networks of advocates across the country, the scale of our case means there were limits to just how many people we could get in contact with in detention. And so there were doubtlessly people who should have been identified as Fraihat subclass members, should have been reviewed and should have been released, who have gone under our radar.
And part of this could be due to lack of counsel or lack of access to our hot member hotline. And something to note there is that judge Bernal specifically acknowledged this. This issue in his order granting for a Special Master.
Now to end things on a slightly more positive note, I will pass it to Chloe to think about the good stuff that we've learned from this experience.
CHLOE HOLZMAN: Thanks, Rosie. I get the nice job at the end of being able to round things out by discussing some of the positives.
So, just to summarize I think again some of the points that Liz and Rosie have already discussed. I think one real positive takeaway is that for a case of this systemic scale, the hotline has absolutely been key. To allow us both to to allow both the callers, but also individual attorneys to be able to keep tabs on the lived experience of subclass members across the whole system, which as we've discussed, is incredibly sprawling and has few checks and oversights that apply across the board to be able to track what's actually happening.
Likewise, the listening sessions that we convened with stakeholders across the country were incredibly informative. The meetings that we were able to have with our own clients, individual and organizational clients together. And I think, you know, something else this case has really underscored has been recognizing the limits, which I think we all know and come to bear in different ways in our practice, with the limits of legal tools to solve some of these problems.
And so, we have been trying and I think are continuing to really try to coordinate our advocacy with other kinds of avenues of advocacy. So, that includes, you know, media campaigns, grass roots advocacy efforts, connecting individuals who contact us with problems, and pro se litigants with other resources that can be brought to bear, considering how many people dynamics exist to this problem in particular.
And that again has just been I think made even more clear given the pandemic where we have just been forced, I think all of us in all of our practice areas to be able to respond nimbly and that requires having information on the ground and established relationships with partners.
I want to close us out before we get to more questions with another quote from Mr. Fraihat. He said, "I am a named plaintiff in this case because I want to do what is right. A lot of detainees' voices are not heard, and I want to elevate their voices. A lot of people in detention have already spent years in prison or detention, and they want to be with their families. We are all human and we need protection."
So, I think, Rosie, it sounded like you were willing to speak next to one of the questions that I have already seen in the chat. But please, for anyone else who has questions, we welcome those now.
ROSA LEE BICHELL: Sure. So this is Rosie, and I'll answer to the extent that I can and let Liz or Chloe chime in, if I am missing any details. But to respond to Nita's question, I'll read it out of the chat for those of you just so that everyone can hear it.
Thanks so much for this informative presentation. I'll skip ahead. Can you talk a little about how you got relief that entitled people to the chance at release. How the claims related to accommodations and conditions of confinement enabled the possibility of release/custody review via a hearing, especially because I believe you didn't make procedural due process claims.
I'm not familiar with the constitutional claims, so maybe I'm missing something, too. Thanks so much.
So, just as a point of clarification, the relief that we got did not include opportunity for a hearing. And that kind of gets at the point about how what I was saying in terms of how we couldn't or Judge Bernal couldn't order that ICE explicitly release folks, due to the high level of discretion in federal immigration law left to ICE and traditional immigration adjudicators, immigration judges.
That being said, kind of the two pieces here, one when we're talking about the constitutional piece, we were able to point to the fact that detention puts folks at substantial risk of serious harm in violation of the Fifth Amendment. And so that was one push in order for there to be kind of released as a piece of relief.
When we're coming from more of a Section 504 disability accommodations direction, judge Bernal ended up defining the relevant program under 504 to be access to immigration adjudication. So that made the program broader than just the tension program itself.
And to paraphrase his decision, he basically found that folks who have disabilities or medical conditions that would lead them to be severely ill or dead, should they contract COVID, that would mean that they couldn't access the program of immigration adjudication case.
Please let me know if that answers your question or if you have some follow ups.
ELIZABETH JORDAN: This is Liz. If I could just add one piece to that. I'm not going to turn on my video because I just have a short comment. You know, I think one thing that's a little bit up in the air is Rosie's sort of statement of our claims was exactly right, but it's unclear if those are claims that are kind of limited to the unique nature of COVID and the way that a disease like COVID spreads in a setting like an ICE detention center.
I mean, I think other circumstances would make the argument harder that detention itself is the unacceptable risk. And so that's you know, that's kind of an open question for those of us thinking about these arguments moving forward, because the underlying case in our case didn't talk about release at all. It's just about sort of within the context of the detention center.
ROSA LEE BICHELL: This is Rosie again. Just please feel free to submit questions via the chat or however is most convenient for you, if there are any other questions.
I see a chat from Anne. Oh, I'll wait for the interpreter. One moment. Okay.
I see a question from the chat from Anne saying, interested in additional thoughts and ideas on how to connect disability and immigration advocates. That's a great question. I would invite Liz to chime in on this, because I know that she's really been central in terms of these sorts of connections.
But I think from my perspective at least, having this Fraihat preliminary injunction that's so explicitly connected immigration incarceration and disability has kind of put on a lot more put a lot of immigration advocates, they're now kind of thinking more about these intersections, and so this is probably obvious to say, but sort of that initial awareness is probably the first step.
Otherwise, I would recommend that I mean, I think it's it's important to think about immigration advocates and whatever practice or region where you are. So, just kind of reaching out to immigration advocacy organizations or community advocates in your community to kind of start the conversation.
I know that there are additional areas of access barriers, and we're thinking about immigration, the kind of immigration adjudication process, kind of folks going through the immigration legal system in general.
And so it is really important to just kind of start the conversation in your region.
ELIZABETH JORDAN: I'll accept Rosie's invitation and add a few additional thoughts.
I completely agree that this is primarily an area of where there's a severe lack of awareness. I think in many ways, immigration justice is disability justice, and we should be thinking about the way that those frameworks intersect. You know, in many ways, the immigration system is incredibly ableist, and the people who are most harmed by it are folks with disabilities.
Some of that conversation got started in the last couple years with the grotesquely ableist public charge, but I think the system is ableist in ways beyond that one specific rule. And I think a lot of people just haven't really put those two ideas together.
And so I think it's up to us, those of us who are disability justice advocates, to really kind of make that case and tie it together and explain, you know, the way that the system works. The other thing I'll say is that immigration is really kind of a shadow especially immigration detention, it's a really shadow mass incarceration system, hidden from view, and I think if folks in the disability space or in the general public knew that we mass incarcerate trauma survivors, like Chloe said at the top, ideally, that would spark a conversation about that. And I think it's probably up to us who sort of think about this intersection or sit at it to try to open up more conversations about it.
CHLOE HOLZMAN: Thank you for those questions. I guess we'll wait another beat in case there might be any more.
I do want to also give a plug for the next and last I guess symposium event, which is the plenary session after this one at 5:00 p.m. To mention that one of our colleagues, Pilar Gonzalez Morales, the director of The Accessibility Project at CREEC, and another member of our co counsel team on Fraihat, is going to be discussing Fraihat a bit during that plenary session.
So if you are interested in this topic, there will be more perspective about the case there.
And if there's no more questions, perhaps we'll wrap up a little bit early. Thank you all so much for attending and for your interest in this case and for all of us I think doing this work just, it's gratifying to have the chance to be able to talk about it.
KENNEDY ZIMNIK: Great. I'm going to go ahead and end it, guys.
ROSA LEE BICHELL: Sorry, this is actually Rosie one more time. I just wanted to I think it's important we did mention the sort of community resources that we've pulled together in the context of this case, and I'm going to go ahead and put a link for that in the chat for those who are interested in reviewing or sharing with whoever you think could benefit from them.
So, I have put the link in the chat. You can also I think access this information if you just Google CREEC, law, and Fraihat community resources, any kind of combination of those words.
All right. I'm actually done now. Unless there are more questions that have come up in the few seconds since I sent the link.
I'm not hearing or seeing anymore, so I guess we will officially end early.
KENNEDY ZIMNIK: All right. Thanks, guys.