From the outset, the coronavirus pandemic posed a unique and immediate threat to incarcerated people—including noncitizens in civil immigration detention. As the pandemic goes on, lawsuits have proliferated across the country challenging the inadequate response of Immigration and Customs Enforcement (ICE) to the spread of the coronavirus.
Since mid-March, when many cities and states began instituting stay-at-home orders, more than 100 lawsuits have been filed in federal courts seeking relief on behalf of noncitizens in ICE custody at heightened risk of serious illness or death due to the virus. The lawsuits have asked for a range of remedies, from ordering ICE to comply with guidelines issued by the Centers for Disease Control and Prevention (CDC) to reduce the risk of detainees contracting the virus, to seeking temporary release for detainees at greater medical risk. With ICE failing to create safe conditions and refusing to release at-risk detainees, detained noncitizens across the country have turned to federal judges, who have been entrusted with resolving this facet of the national public health crisis. These cases offer insight into a crucial function of the judiciary during the pandemic, balancing traditional competing interests of detainees and the government while incorporating a modified definition of “public interest” in light of the novel coronavirus and COVID-19, the respiratory disease the virus causes.
As of June 25, at least two detained noncitizens and three ICE officers have died due to COVID-19. ICE has issued guidance on its response to COVID-19, noting that it has “evaluated its detained population based upon the CDC’s guidance for people who might be at higher risk” and that “of this medical risk population, ICE has released over 900 individuals.” On April 10, ICE released its Pandemic Response Requirements (PRR), which build on previous guidance and provide “mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities.” The requirements for all detention facilities that house ICE detainees include complying with the CDC’s interim guidance on managing COVID-19 in correctional facilities; reporting all suspected and confirmed coronavirus cases to the local field office director, field medical coordinator and local health department; and notifying the field director and medical coordinator of any detainee who falls within the CDC’s high-risk categories within 12 hours of identification. The PRR also offer instructions on actions detention-facility administrators should take for staffing, cleaning and hygiene practices; visitation; and screening and quarantine for new detainees and those suspected or confirmed to have the virus.
Despite the PRR, several advocacy groups and authorities, including physicians, have argued that ICE’s response is inadequate. Importantly, individuals at these detention facilities live in close quarters where social distancing is unenforced and in many cases infeasible. Indeed, the PRR conceded that “strict social distancing may not be possible in congregate settings such as detention facilities” before proceeding to list recommendations for facilities to implement, such as reducing detainee populations to about 75 percent capacity and other measures, “to the extent practicable.” What’s more, when staff at these facilities enter and leave, or when detainees are transferred from one facility to another, there is a significant risk of transmitting the virus. Other detention conditions, such as limited access to soap for hand washing, along with poor medical care, make it easier for the virus to spread.
Given these concerns, epidemiologists and researchers published a study in mid-May using ICE detainee population data and concluded that in the optimistic scenario, over a 90-day period and absent taking measures such as releasing detainees, 72 percent of individuals would become infected with the coronavirus. ICE’s own statistics reveal that as of June 19, 8,858 detainees were tested for the virus. The current detained population is 23,429, but since the pandemic started many detainees have been released and the data does not give the total number of detainees from the time testing began. As of June 25, 2,572 detainees have tested positive while in ICE custody, and assuming that the 2,572 is a fraction of the 8,858 detainees who have been tested, the positive test rate is about 29 percent—multiple times the national positive test rate. In addition, 751, or 29.2 percent, of those individuals who have tested positive remain in detention.
Government officials have also expressed significant concern about the lack of transparency on ICE’s on-the-ground detention practices in response to the pandemic. On April 7, the House Committee on Oversight and Reform issued a letter to leaders of the Department of Homeland Security noting that the department had not provided the information previously requested by the committee on how the agency is reducing the risk of spread. The letter also called on the department to “immediately release non-violent detainees, prioritizing those who are at higher risk for complications from coronavirus.” The committee issued another letter on May 14, noting ICE’s failure to fully respond to prior requests for information and condemning ICE for contradicting CDC guidance. Specifically, the letter chided ICE for cohorting detainees exposed to the virus “as a matter of course” instead of trying to individually quarantine first, continuing to transfer detainees between facilities, failing to social distance, and failing to provide personal protective equipment such as face masks. The letter also pointed out that ICE’s infection rate is higher than in any state, revealing the urgency for action and, at the very least, for sharing critical information with the committee.
With little traction in Congress, detained noncitizens have turned to the courts for relief.
The Litigation So Far
Although the lawsuits vary in their claims and in form, the most common type of case that detained noncitizens have brought related to the coronavirus is a habeas corpus action. Under federal statute 28 U.S.C. § 2241(a), c(3), federal judges can grant the writ of habeas corpus if they conclude that a detained person “is in custody in violation of the Constitution or laws or treaties of the United States.” Most of these habeas cases have been brought by individual detainees or groups of detainees seeking relief in the form of temporary release to be able to follow CDC guidelines and receive proper medical care. In general, the cases raise common arguments: ICE is failing to protect noncitizens in its custody from the coronavirus and its consequences in violation of the detainees’ rights to due process under the Fifth Amendment, and as a result, ICE should be ordered to release at-risk detainees and/or take corrective measures to improve detention conditions.
For detained noncitizens to prove that their continued detention during the pandemic violates their Fifth Amendment due process rights, they must demonstrate that ICE is being “deliberately indifferent” to detained noncitizens’ serious medical needs and/or their conditions of confinement amount to “punishment” that is impermissible for individuals who have not been tried and convicted of a crime, including noncitizens in immigration detention.
For deliberate indifference, although there is some variation in how the federal courts of appeals have formulated the standard, detained noncitizens generally must show that they have a serious medical need and that ICE acted with deliberate indifference to that need. As Judge Analisa Torres of the U.S. District Court for the Southern District of New York noted in her decision in Ferreyra v. Decker—where she granted the detainees’ motion for a preliminary injunction allowing them to remain released from ICE custody and preventing ICE from rearresting them without the court’s permission—plaintiffs can prove deliberate indifference by showing that ICE officials “recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to the plaintiff’s health or safety” (emphasis in original). As a result, these cases frequently require fact-intensive inquiries into whether the detainee is at a high risk of illness or death due to COVID-19 and the type and extent of precautions ICE has or has not taken at the detainee’s facility.
Given these fact-laden analyses, many cases have been relatively straightforward and have turned on, for example, the health status of the specific detained noncitizen(s) who brought the case and the conditions at their detention facility. For example, in Sow v. Adducci, Magistrate Judge Kimberly Jolson of the U.S. District Court for the Southern District of Ohio, Eastern Division, acknowledged both that the petitioner had tested positive for the coronavirus and that conditions at the petitioner’s detention facility were “troubling.” However, Jolson recommended that the court not grant the detainee’s petition seeking release, because as a 42-year-old with no preexisting conditions, he was not at high risk for severe complications. In Jorge V.S. v. Green, Judge Susan Wigenton of the U.S. District Court for the District of New Jersey ruled that even assuming the petitioner was at high risk, he did not show that jail officials were deliberately indifferent given that they took precautions such as screening detainees upon admission for fever and providing monitoring for detainees who have medical conditions that put them at greater risk. In contrast, in other cases such as Coronel v. Decker, Judge Alison Nathan of the U.S. District Court for the Southern District of New York concluded that the petitioners’ preexisting medical conditions were severe enough to place them at high risk if they were to contract the virus and that ICE was deliberately indifferent to their medical needs, given that it failed to take actions such as isolating the petitioners and implementing safety protocols.
In assessing the adequacy of ICE’s actions in response to the pandemic, courts also addressed ICE’s PRR document described above. In Fraihat v. U.S. Immigration & Customs Enforcement, decided on April 20, ten days after the PRR document was issued, Judge Jesus Bernal of the U.S. District Court for the Central District of California granted the plaintiffs’ motion for a preliminary injunction requiring ICE to take measures such as custody determinations for detainees with risk factors and other corrective actions. Bernal concluded that the PRR document was insufficient, criticizing ICE for the month-long delay in issuing the document after the pandemic began and for failing to mention enforcement mechanisms. As a result, in granting plainitffs’ motion for a preliminary injunction, Bernal ordered ICE to “issue a performance standard or a supplement to their [PRR] defining the minimum acceptable detention conditions for detainees” with risk factors and to “monitor and enforce facility-wide compliance with the PRR” and the performance standard.
While Bernal’s main objections to the PRR were the lack of enforcement mechanisms, some courts also doubted the substantive adequacy of the PRR. In Malam v. Adducci, Judge Judith Levy of the U.S. District Court for the Eastern District of Michigan credited physician and epidemiologist Homer Venters’s opinion on the PRR in his declaration, which plaintiffs submitted in support of their motion for a preliminary injunction seeking release. In finding that the plaintiffs were likely to succeed on their deliberate indifference claim and granting their motion, Levy found convincing Venters’s critique that the PRR “critically fail to encourage or require any higher level of protection that facility officials must provide these [high-risk] detainees in order to protect them from contracting COVID-19.”
The Fraihat injunction also influenced judges’ views on the PRR in subsequent decisions. Importantly, Bernal in Fraihat issued a nationwide injunction: He ordered ICE to enact the required measures nationally compared to other court decisions granting injunctions that apply only to the plaintiffs’ detention facility or facilities within the court’s jurisdiction. On June 2, months after the Fraihat decision, Judge Christopher Cooper of the U.S. District Court for the District of Columbia described ICE’s efforts to comply with the Fraihat injunction in C.G.B. v. Wolf, a putative nationwide class action brought by 10 transgender women in immigration detention arguing for the release of and to stop further detention of all transgender noncitizens until the pandemic ends. Cooper took note of ICE’s efforts to enforce the PRR since the Fraihat injunction, including enforcing the PRR by identifying more detainees with CDC-designated risk factors and showing evidence of implementing the PRR at some of the plaintiffs’ detention facilities. As a result, Cooper ruled that “[a]ny injunction that this Court could issue requiring ICE to comply with the PRR would be duplicative of the Fraihat order,” noting that overlapping decisions on ICE’s management “would be contrary to the public interest.” The Fraihat and C.G.B. cases also demonstrate some of the issues involved in trying to address ICE’s response to the pandemic on a more global level using class actions, discussed in greater detail below.
To hold that the conditions of confinement constitute punishment in violation of the detainees’ due process rights, courts must determine whether the conditions serve a legitimate governmental purpose and, if so, whether the conditions are excessive in relation to that purpose. The legitimate governmental purposes for detaining noncitizens that courts including the Supreme Court have recognized are to ensure that noncitizens attend immigration court proceedings (preventing “flight risk”) and to lessen any security threat to the community. Some judges, such as Judge John Jones of the U.S. District Court for the Middle District of Pennsylvania in Thakker v. Doll, have concluded “we cannot find that unsanitary conditions, which include overcrowding and a high risk of COVID-19 transmission, are rationally related to that legitimate government objective.” Similarly, in Ochoa v. Kolitwenzew, Judge Sue Myerscough of the U.S. District Court for the Central District of Illinois found that the petitioner’s detention was excessive, explaining that there can be conditions in place upon petitioner’s release to ensure he would not be a flight risk or security threat and citing to the facts that the petitioner has family and counsel to ensure he will attend future court proceedings. However, as with deliberate indifference, judges’ decisions were varied. In Javier M. S.-H. v. Tsoukaris, Judge Susan Wegenton—of the Jorge decision discussed above—found that the steps ICE officials had taken to mitigate the risks of COVID-19, including screening detainees for health issues and increasing access to soap and masks, showed that the petitioner’s detention under such conditions is not sufficiently excessive to amount to punishment.
The type of evaluation courts engage in for the unconstitutional punishment claim is similar to the analysis judges must perform to determine whether to grant a preliminary injunction in favor of the petitioner-detainees allowing temporary release or other forms of relief. To grant a preliminary injunction, judges must find that, on balance, the “equities and public interest” weigh in the detainee’s favor. In Ferreyra v. Decker, mentioned earlier, Judge Torres found that “the equities and public interest weigh heavily in [p]etitioners’ favor” because the harm the petitioners face, potential serious illness and death, outweighs any general flight risk or security threat they present. Importantly, Torres also concluded that the public interest favors their release because “public health and safety are served best by rapidly decreasing the number of individuals held in confined, unsafe conditions.” This shows a change in the interpretation of “public interest” in light of the coronavirus: Previously, courts readily found that purposes of immigration detention such as lessening any security threat served the public interest. In the midst of the pandemic, the public interest is rooted instead in reducing the number of positive cases as much as possible. Judge Jones in Thakker v. Doll similarly found that the public interest weighs in favor of petitioner’s release, especially given that this is civil detention, presenting different considerations compared to the criminal context.
Still, in some cases, judges have been less willing to adopt the modified pandemic public interest model. In Ahn v. Barr, Judge James Donato of the U.S. District Court for the Northern District of California ruled that “the public interest factors of danger to the community and risk of flight also weigh against releasing petitioners,” citing petitioners’ prior criminal convictions as evidence.
Improving Consistency Through Class Actions
These cases reveal some overarching themes: inconsistency in judges’ opinions nationwide; the case-by-case, piecemeal nature of most decisions; and, as a subpoint of the second theme, the significance of the distinction between the goals of seeking release versus improvement in detention conditions. The inconsistency in judges’ opinions is justified by the disparate fact patterns judges are presented with in each case, as each petitioner-detainee and each facility’s conditions are different. Also, most of the cases described above involve individual detainees bringing single habeas actions or, less commonly, small groups of petitioners bringing a multiparty habeas action. Although inconsistency and the piecemeal nature may not be obviously problematic, they are concerning because of the potential to make this area of litigation more predictable, judicially efficient and fair. To do so, there are two main issues detainees must address: enhancing ICE’s transparency on detention conditions, and satisfying the criteria for class certification to resolve common legal and factual questions.
A class action is a type of lawsuit that allows one or more plaintiffs to sue on behalf of a larger group of similarly situated individuals. For courts to certify a case as a class action, it must meet the requirements under Rule 23(a) of the Federal Rules of Civil Procedure and under one of the four types of class actions specified in Rule 23(b). Most of the immigration detention class actions filed during the pandemic have sought class certification under Rule 23(b)(2), the type of class action used to seek classwide injunctive and/or declaratory relief, given that the detainees are mostly seeking injunctions ordering ICE to improve conditions or release detainees. In the coronavirus-related immigration detention cases, some of the most debated requirements have been commonality and typicality under Rule 23(a)—that “there are questions of law or fact common to the class” and “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” In Savino v. Souza, Judge William Young of the U.S. District Court for the District of Massachusetts addressed the government’s arguments that the class members—composed of about 148 detainees at two detention facilities within the Bristol County prison—are all differently situated because of their varying ages, health statutes, and immigration histories, which speak to their risk levels and the balance of equities. Young found the government’s arguments unpersuasive because the class only needed one common question to satisfy commonality, and in that case it was whether the detention conditions amount to unconstitutional punishment for the detainees. Young also discerned that the class satisfied commonality despite the differences among class members the government pointed out because of “the troubling fact that even perfectly healthy detainees are seriously threatened by COVID-19,” making such differences potentially legally insignificant for answering the common question.
Another highly contested and more complicated requirement for class certification in these cases has been the uniformity of remedy requirement under Rule 23(b)(2). Rule 23(b)(2) requires that the injunctive or declaratory relief be “appropriate respecting the class as a whole,” and the Supreme Court in Wal-Mart Stores, Inc. v. Dukes articulated the standard that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” In coronavirus-related immigration detention cases, the government has argued that the proposed class actions fail the uniformity of remedy requirement because a court could not order release for all class members given the differences in class members’ medical and immigration histories that would make some but not all eligible for release. This argument has failed to deter judges such as Young, however, because release is not the only option available to judges, or the only option plaintiffs in such cases are seeking. In Savino, the plaintiffs sought release or implementation of improved detention conditions including social distancing and other hygienic practices. As a result, Young concluded that the class meets the uniformity of remedy requirement because the court did not need to release all class members as a remedy; it could issue a single declaratory judgment or an injunction ordering ICE to reduce crowding of detainees.
Moreover, as a way to resolve the release as a classwide remedy issue, Young invoked the court’s inherent authority to consider and order bail for immigration detainees based on a 2001 decision by the U.S. Court of Appeals for the Second Circuit in Mapp v. Reno. In that case, the court held that “the federal courts have the same inherent authority to admit habeas petitioners to bail in the immigration context as they do in criminal habeas case.” Under Mapp, for a federal court to grant bail, the petitioner-detainee must show that her petition raises “substantial claims” and that “extraordinary circumstances” exist warranting release. Young determined that the detainees in Savino satisfied those prongs, and he cited cases where other courts also relied on Mapp to order bail for immigration detainees at risk due to the pandemic. For example, in Avendaño Hernandez v. Decker, Judge J. Paul Oetken of the Southern District of New York concluded that the petitioner’s “immediate release is necessary to ‘make the habeas remedy effective’” because the petitioner raised a substantial claim for deliberate indifference and faced continued risk of infection without release. However, Colin Mapp, the petitioner-detainee in Mapp, had certain factors that the members of the Savino class most likely do not. The criminal convictions that made Mapp removable entailed conduct before the effective date of the new immigration law in 1996. As a result, Mapp was able to argue on the merits that the restrictive provisions of the 1996 law were not retroactive and did not apply to him (the Second Circuit ultimately vacated the district court’s decision to grant bail because it did not find release necessary to make the habeas relief Mapp sought effective). Thus, although Young’s ruling on the court’s inherent authority to order bail finds support in precedent and similar rulings from peer courts, there exists some debate over the ruling’s viability.
Regardless, Young’s point that release is not the only option protects class certification. Judge Allison Burroughs, also of the U.S. District Court for the District of Massachusetts, reached a similar conclusion in Quadrelli v. Moniz, where she rejected the government’s argument that “[p]etitioners’ request for release for every class member cannot be resolved on a class-wide basis” because, as Young also accepted, “release is not the only remedy available to [p]etitioners.”
Another case that further highlights the distinction between the goals of seeking release compared to improved detention conditions is Gayle v. Meade, a case in the U.S. District Court for the Southern District of Florida. In Gayle, immigration detainees at three detention facilities in South Florida sought certification of a class composed of about 1,400 individuals in immigration detention at the three facilities and requested injunctive relief in the forms of release, protective health measures, and transfer of detainees to other facilities. Judge Marcia Cooke, presiding over that case, certified the class after finding it met all of the requirements under Rule 23(a) and 23(b)—but only for detainees’ claims seeking protective health measures, not their claims seeking release. Cooke adopted Magistrate Judge Jonathan Goodman’s recommendation that “the claims for release are inappropriate for class treatment because they do not meet the commonality element.” Goodman recommended that the claims for release failed the commonality requirement because whether any detainee should be released requires analysis of the detainee’s individual circumstances, including the detainee’s health status and immigration history. The same problem does not affect detainees’ claims for health measures because, as Cooke noted, “ICE’s actions and inactions apply to the class generally” with regard to the measures ICE could take to protect detainees.
The above class actions involve classes composed of detainees at specific detention facilities and are not nationwide class actions, which often give judges further pause. In Fraihat and C.G.B., discussed above for their debate over the PRR document, detainees sought to certify nationwide class actions. In Fraihat, plaintiffs sought to certify two nationwide subclasses, one for all ICE detainees who have one of the risk factors placing them at heightened risk of severe complications from COVID-19 and another for all ICE detainees whose disabilities place them at heightened risk for severe complications from COVID-19. Judge Bernal ruled that both subclasses met the requirements for class certification even though the class members are detained at different facilities with different conditions because “the same injunction or declaratory judgment would provide relief to all class members, or to none of them.” Critical to this ruling was the fact that the plaintiffs were not seeking relief but, rather, were asking the court “to determine whether ICE's systematic actions, or failures to act, in response to COVID-19 amount to violations of the class members' constitutional or statutory rights.”
In C.G.B., where a group of transgender women sought to certify a nationwide class of transgender immigration detainees, Judge Cooper reached the opposite conclusion. The common question in C.G.B. was similar to that in Savino: whether ICE’s failure to protect transgender people in immigration detention from COVID-19 and its consequences amounts to unconstitutional punishment. However, Judge Cooper ruled that the plaintiffs’ proposed common question could not satisfy commonality because “there are multiple subsidiary issues necessarily involved in resolving that overarching contention that render the case incapable of classwide resolution” (emphasis in original). Cooper found it troubling that the plaintiffs did not specify a uniform policy or practice demonstrating ICE’s failure to protect transgender detainees—but the judge found that even if they could show that, there could not be a common classwide answer to the plaintiffs’ due process claim because of the differences between class members regarding age, health statuses and risk factors, as well as differences among various detention facilities across the country. For many of these same reasons, Cooper also found the potential differences between the 10 named plaintiffs and the rest of the class would make them inadequate as class representatives.
To support the point on class members’ differences failing commonality, Cooper also invoked language from the 2018 Supreme Court case Jennings v. Rodriguez. In that case, Justice Samuel Alito remarked toward the end of his opinion for the court that a Rule 23(b)(2) class action might not be the appropriate vehicle for the immigration detainees’ due process claims. I discussed Jennings’s impact on immigration detention class actions in greater detail in an earlier Lawfare piece, but here it suffices to note that the language on due process class actions in Jennings—even though its scope and exact influence is uncertain—continues to influence the coronavirus-related immigration detention cases. Although Fraihat and C.G.B. concern nationwide classes, they are important in evaluating the role of class actions in this area of litigation: the judges’ analyses reveal the reasoning and types of obstacles detainees must overcome to realize the efficiency-related benefits class actions allow, and they highlight the potential of nationwide classes and class actions more generally to resolve the pressing issues these cases raise. After all, as Judge Cooke noted in certifying the class in Gayle, “[I]t would be extremely inconvenient and a waste of valuable judicial resources to try several hundred individual lawsuits.”
The other issue, the lack of transparency on ICE’s policies and practices in response to the coronavirus, hinders accurate adjudication of many of the issues confronted above in individual habeas actions and putative class actions. The detainees’ due process claims hinge on proof of deliberate indifference and unconstitutional punishment. These factors focus on the conditions of confinement and the effectiveness of measures ICE has taken to protect detainees from COVID-19. ICE’s unwillingness to provide sufficient information on its practices is therefore deeply concerning to detained noncitizens seeking release and their lawyers.
Some prominent nonprofits representing detained noncitizens, such as the American Civil Liberties Union, have filed Freedom of Information Act (FOIA) requests seeking documents related to the transfer of detainees who have shown symptoms or tested positive for the coronavirus, predictions on the infection and mortality rates, access to hygiene products and personal protective equipment, testing, and more. While the number of lawsuits seeking greater transparency has been relatively limited compared to the lawsuits seeking temporary release, the American Immigration Council (AIC) sued ICE in early May for the agency’s delays in responding to a FOIA request for information on ICE’s response to the pandemic. In a hearing before Judge Thomas Hogan of the U.S. District Court for the District of Columbia on the AIC’s motion to order ICE to produce the information on an expedited basis, Hogan questioned the urgency of AIC’s need for the FOIA records—to which AIC responded that the urgency and unprecedented nature of the pandemic justifies the request for responses on an expedited basis. After considering both sides’ arguments, Hogan on June 11 granted AIC’s motion and ordered ICE to produce 400 out of the 800 requested pages of records by the end of July and the rest by the end of August. As transparency continues to be an issue for allowing accurate adjudication of the coronavirus-related immigration detention cases, FOIA litigation represents a possible avenue for tackling this issue.
Coronavirus-related immigration detention litigation raises a range of complex issues for judges who have needed to adapt their reasoning to at least some extent in order to consider the unprecedented nature of the pandemic in their decision-making. The two main issues discussed, enhancing ICE’s transparency on its practices and making greater use of the class action device where appropriate, could help judges more fairly, accurately and efficiently adjudicate these cases. It would also allow detained noncitizens whose health and lives are at stake to achieve justice and the government to pursue its legitimate interest by detaining only to the extent necessary and protecting the “new” coronavirus-influenced public interest as Judge Torres and others indicated.
What remains to be seen, and perhaps will not be known for another few years, is to what extent the outcomes and reasoning judges employ in the coronavirus-related immigration detention litigation will shape the future of immigration detention at large. Summing up one strand of district court decisions, Judge Vince Chhabria of the U.S. District Court for the Northern District of California asserted that “ICE cannot currently be trusted to prevent constitutional violations ... without judicial intervention.” Along similar lines, Judge Jones observed in Thakker that “[i]f we are to remain the civilized society we hold ourselves to be, it would be heartless and inhumane not to recognize [the detainees’] plight.” The complications in the litigation examined above show the lingering question marks about the role of federal courts during the pandemic.