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CA9 (2-1) Reverses Fraihat Preliminary Injunction

October 20, 2021 (2 min read)

Fraihat v. ICE

Maj. - "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."

Dissent - "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 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 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."