DATE: February 18, 2021


SF Public Defender’s Office, 628.249-7946,

ACLU SoCal Communications & Media Advocacy:, 626-755-4129

Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Sam Lew,, 415-272-8022

Ninth Circuit Affirms Likely Constitutional Violation in Detention of Immigrants During Pandemic

Rules ICE Neglected Immigrants; Upholds Order Establishing Process for Considering Release During Pandemic

SAN FRANCISCO – In a key victory for immigrants who won their release from two U.S. Immigration and Customs Enforcement (ICE) facilities in California during the COVID-19 pandemic, the U.S. Court of Appeals for the Ninth Circuit today affirmed a lower court’s finding that the immigrants were likely to succeed in their claim that conditions at the facilities during the pandemic were unconstitutional and did not allow adequate social distancing.

The appeals court rejected ICE’s argument that the lower court lacked the power to release people from custody in the face of unconstitutional conditions at the facilities. The court also said the danger from COVID-19 was “sufficiently imminent” given ICE’s failure to take adequate measures in response to the pandemic. 

The class action case, Zepeda Rivas v Jennings, was filed in April by the San Francisco Public Defender’s Office, the American Civil Liberties Union Foundations of Northern California and Southern California, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and the law firms of Lakin & Wille LLP and Cooley LLP.

Bree Bernwanger, senior staff attorney at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, who argued the appeal, said: “Today’s decision affirms that ICE cannot detain people in constitutionally unsafe conditions during the pandemic. The experiences of hundreds of people released through this case show their detention was inhumane and unnecessary.”

Myke Jonathan Cux Jocop was released from custody in Mesa Verde as the result of the lawsuit. “I was in ICE detention when my baby was born,” she said. “It is only because of this case that I have been able to come home to my partner and my newborn baby. No one should be in those horrible conditions during the pandemic.”

The Ninth Circuit court referred the appeal to a mediation program to explore a possible resolution.

Today’s decision coincides with guidance issued by ICE Acting Director Tae Johnson instructing ICE offices nationwide to comply with enforcement priorities substantially limiting enforcement actions—including the use of detention.

Read the Ninth Circuit decision here:



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