NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KELVIN HERNANDEZ ROMAN; No. 20-55436 BEATRIZ ANDREA FORERO CHAVEZ; MIGUEL AGUILAR ESTRADA, on behalf of themselves and all others similarly D.C. No. situated, 5:20-cv-00768-TJH-PVC Plaintiffs-Petitioners- Appellees, MEMORANDUM* v. CHAD F. WOLF, Acting Secretary, U.S. Department of Homeland Security; TONY H. PHAM, Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement; DAVID MARIN, Director of the Los Angeles Field Office, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; JAMES JANECKA, Warden, Adelanto ICE Processing Center, Defendants-Respondents- Appellants. Appeal from the United States District Court for the Central District of California Terry J. Hatter, Jr., District Judge, Presiding Argued and Submitted September 15, 2020 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. San Francisco, California Before: Paul J. Watford, Michelle T. Friedland, and Eric D. Miller, Circuit Judges. Concurrence by Judge MILLER In this interlocutory appeal, the Government1 challenges a preliminary injunction entered by the district court in response to Plaintiffs’ claims that conditions at the Adelanto Immigration and Customs Enforcement Processing Center (“Adelanto”), where they were detained, placed them at unconstitutional risk of contracting COVID-19. We heard oral argument in the appeal last week. Yesterday evening, while we were preparing an opinion addressing the interlocutory appeal, we received an emergency motion from Plaintiffs explaining that, in the last week, 58 detainees and eight staff members had tested positive for COVID-19 at Adelanto, and over 300 detainees were still awaiting their test results. Nine detainees have been hospitalized since September 10. Plaintiffs allege that the Government was already aware of the outbreak by the time of oral argument but failed to mention it. We did not learn of the outbreak until 1 Defendants-Appellants are Chad F. Wolf, Acting Secretary of Homeland Security; Tony H. Pham, Senior Official Performing the Duties of the Director, U.S. Immigration and Customs Enforcement (“ICE”); David Marin, Director of the Los Angeles Field Office for ICE’s Enforcement and Removal Operations; and James Janecka, Warden of Adelanto. We refer to them collectively as “the Government.” Pham has been automatically substituted for Matthew T. Albence, former Deputy Director and Senior Official Performing the Duties of the Director of ICE. Fed. R. App. P. 43(c)(2). 2 yesterday—more than a week later. The emergency motion asks us either to lift a stay pending appeal of the preliminary injunction, which had previously been imposed in an unpublished order by a motions panel of our court, or to clarify that the stay does not prohibit the district court from ordering protective measures in response to the changed circumstances presented by the developing outbreak. In light of the urgency of the situation, we issue this disposition affirming the preliminary injunction order in part, vacating it in part, and remanding so that the district court may immediately address current circumstances in Adelanto. A published version ...
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