By Mike LaSusa

Law360 (April 9, 2020, 10:20 PM EDT ) A split Ninth Circuit panel sent an immigration detainee's coronavirus-based emergency release bid to a California district court on Thursday, though the dissenting judge said the appeals panel should have tossed the case by the man with no COVID-19 symptoms, asking "If he's entitled to relief, who isn't?"

U.S. Circuit Judge Consuelo Maria Callahan broke with her colleagues, U.S. Circuit Judge Jacqueline Hong-Ngoc Nguyen and U.S. District Judge Yvette Kane of the Middle District of Pennsylvania, in the case of Ricardo Lopez-Marroquin, who sought release from the custody of U.S. Immigration and Customs Enforcement because of the COVID-19 pandemic.

Judges Nguyen and Kane said Lopez-Marroquin's motion under the All Writs Act was more properly treated like a habeas corpus petition, which must be decided by the district court. But Judge Callahan said the appeals court shouldn't have even considered the request.

"Lopez should have himself pursued habeas relief in the first place rather than burdening this court with meritless arguments advocating for an unprecedented and improper use of the All Writs Act," she said.

Judge Callahan also decried what she saw as a potentially slippery slope that could be created by his case.

"Lopez is a generic detainee, in that he claims neither to have contracted the virus nor to suffer from any underlying health issues placing him at greater risk than anyone else in government custody," the judge said. "Lopez's motion, then, is really just the camel's nose under the tent."

"If he's entitled to relief, then who isn't?" the judge continued. "And what happens after the pandemic subsides? It cannot be that detainees can turn to the All Writs Act every time they disagree with some aspect of their confinement."

Other immigration detainees have also sought release in light of the COVID-19 pandemic, though not always successfully.

For instance, a federal court in Seattle shot down a bid last month by three civil rights nonprofits aiming to force ICE to release immigrants at a detention center in Washington state near one of the epicenters of the COVID-19 outbreak in the U.S.

The judge in that case said the immigrants hadn't shown that the government is trying to punish them by keeping them locked up, and their infection by the virus was only a "possibility" as opposed to a "likely" outcome of their continued detention.

Emily Chertoff of the Immigrant Defenders Law Center, which represented Lopez-Marroquin, said the organization is "confident that the district courts, which have been working overtime to provide our clients a fair hearing, will give Mr. Lopez-Marroquin and other detainees who have filed these motions a speedy decision."

"We can only hope that the government will get the message our courts are making increasingly clear: continuing to imprison many thousands of civil detainees in the face of America's worst ever public health crisis is not consistent with our constitutional values," Chertoff said.

The government didn't respond on Thursday to requests for comment.

U.S. Circuit Judges Consuelo Maria Callahan and Jacqueline Hong-Ngoc Nguyen, and U.S. District Judge Yvette Kane of the Middle District of Pennsylvania sat on the panel for the Ninth Circuit.

Lopez-Marroquin was represented by Munmeeth K. Soni and Emily Chertoff of the Immigrant Defenders Law Center.

The government was represented by Joseph Anthony O'Connell of the U.S. Department of Justice Office of Immigration Litigation.

The case is Ricardo Lopez-Marroquin v. William Barr, case number 18-72922, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Emily Kokoll.

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