D.A.M, et al., Petitioners, v. WILLIAM BARR, in his official capacity as Attorney General of the United States, et al., Respondents.
Case No. 20-cv-1321 (CRC)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Petitioners in this case are nearly 100 families from eleven countries who were denied asylum after entering the United States without valid entry documents and, consequently, are subject to orders of expedited removal from the country. Many of them are currently being detained by Immigration and Customs Enforcement (“ICE“) at either the South Texas Family Residential Facility in Dilley, Texas (“Dilley“) or the Berks County Residential Center in Leesport, Pennsylvania (“Berks“). Others have been released for medical or other reasons. All petitioners seek a writ of habeas corpus preventing ICE from deporting them during the COVID-19 pandemic. Presently before the Court is a motion for a temporary restraining order, filed on behalf of the detained petitioners only, seeking an emergency stay of their imminent removals. They contend that if the removals were to go forward as planned, they would be exposed to increased risk of contracting COVID-19 during the deportation process, and later in their home countries, which would violate their due process rights and ICE‘s internal regulations. Finding that it likely has jurisdiction to review petitioners’ challenge to the conditions they would experience during the deportation process but concluding that they have not satisfied the
I. Background
A. Deportation in the Time of COVID-19
It goes without saying that we are in the midst of a global pandemic. As of this writing, there are over fourteen and a half million confirmed cases of COVID-19 worldwide with over 600,000 people dead. See WHO, Coronavirus Disease (COVID-19) Pandemic (updated July 21, 2020).1 The United States remains a hotspot, with over three and a half million confirmed cases and more than 140,000 deaths. CDC, Cases in the U.S. (updated July 21, 2020).2
COVID-19 is highly contagious. It spreads primarily through close person-to-person contact, because carriers of the virus produce airborne respiratory droplets when they cough, sneeze, or talk that may be inhaled by others standing nearby. See CDC, How to Protect Yourself & Others (Apr. 14, 2020).3 Though less frequent, the virus can be also spread through contact with contaminated surfaces. See CDC, Detailed Disinfection Guidance (updated July, 2020).4 Symptoms, such as fever, cough, and shortness of breath, typically appear two to fourteen days after exposure, but even those who are asymptomatic may be capable of spreading the disease. CDC, Clinical Questions about COVID-19: Questions and Answers—Transmission
During the pandemic, ICE has continued to deport noncitizens subject to final removal orders. At the heart of this case is whether appropriate safeguards are being taken during the deportation process. ICE has submitted declarations from officials familiar with the process, and, while not to be accepted blindly, these declarations are subject to a presumption of good faith absent clearly contradictory evidence. C.G.B. v. Wolf, No. 20-cv-1072, 2020 WL 2935111, at *6 (D.D.C. June 2, 2020) (Cooper, J.) (citing cases). According to ICE‘s declarants, it has
ICE further attests that it provides detainees with personal protective equipment (“PPE“), including surgical-grade face masks, nitrile gloves on request, and hand sanitizer, throughout the removal process. Id. ¶ 17.8 The same is true for transportation personnel. Id. ¶ 22. ICE requires masks to be worn at all times and performs temperature checks on detainees every hour. Id. ¶ 26. It now uses ICE-operated aircraft and ground vehicles only, which it says comply with CDC
Upon arrival at an intermediate destination within the U.S., transportation specialists once again check all deportees’ temperatures. Id. ¶ 28. ICE permits deportees to keep any PPE on the next mode of transportation or for use in their home countries. Id. ICE flights now have an extra medical provider, and its medical staff conducts another round of temperature checks and visual screenings at the airport. Cordero Decl. ¶¶ 11–12. Detainees who fail these screenings are denied boarding. Id. ¶ 13. During the flights, families must sit in the front of the plane while individuals are placed at the rear, and, if possible, ICE instructs that empty seats remain between families and individuals to maintain physical distance. Id. ¶ 18. The ICE-chartered planes are also cleaned and disinfected after every flight. Id. ¶ 19. As noted, ICE only tests deportees for COVID-19 prior to removal to countries that “require testing prior to repatriation.” Id. ¶ 7. It explains that it simply “does not have enough testing resources to test all” noncitizens “scheduled for future removals.” Id. ¶ 8.
Petitioners insist that many of the precautions ICE describes are simply not being taken and that others are woefully inadequate. For example, an attorney who works with clients detained at the Berks family residential center in Pennsylvania declares that deportation from that center requires the use of public transportation and entails comingling with detainees from other detention centers. Cambria Decl. ¶¶ 10–14. ICE acknowledges that detainees are comingled during the deportation process but adds that social distancing is practiced “to the extent possible.” Cordero Decl. ¶¶ 18. Petitioners explain that, prior to the pandemic, deportees often had layovers with commercial airlines. Cambria Decl. ¶¶ 12. As noted, however, ICE
In addition to the dangers they face during the deportation process, petitioners fear what may await them when they reach their home countries.9 Many of these countries’ medical systems, they allege, are ill-equipped to handle an influx of cases. Am. Pet‘n & Compl. ¶¶ 209–32. In some countries, such as Guatemala, petitioners say that new arrivals from the United States are persecuted because they are seen as bringing the virus with them. See, e.g., T.A.L. Decl. ¶¶ 12-26 (prior deportee describing physical intimidation and verbal abuse upon arrival in Guatemala). They claim further that many of the non-profits and government agencies that typically provide services to arriving deportees have been shuttered due to COVID-19. Fluharty Decl. ¶ 17. Thus, some petitioners fear that they will be unable to contact family members or arrange transportation to their final destinations upon their arrival.
B. Procedural History
1. Expedited Removal and Applications for Asylum
Petitioners each sought admission to the United States without valid entry documents and, as a result, were placed into expedited removal proceedings. Under the expedited removal statute, immigration officers were required to remove petitioners “from the United States without further hearing or review unless [they] indicate[d] either an intention to apply for asylum . . . or a
Many of the petitioners faced an additional hurdle to establishing a claim for admission in the summary expedited removal process. Last year, the Department of Homeland Security and the Department of Justice jointly issued an interim rule, known as the “Transit Ban,” that rendered migrants seeking admission at the border with Mexico categorically ineligible for asylum unless they first applied for and were denied similar protection in a third country through which they traveled. Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,835 (July 16, 2019). The Transit Ban, however, did not prevent petitioners from seeking admission and a withholding of removal under either section 241(b)(3) of the INA (which enables them to seek a withholding of removal after they have a final order) or the Convention Against Torture (which provides separate protections from removal). The upshot of the rule was
2. Related Litigation
Petitioners are no strangers to this court. Last September, some of them challenged the validity of their removal orders in an action before Judge Amy Berman Jackson. See M.M.V. v. Barr, No. 19-cv-2773, 2020 WL 1984309 (D.D.C. Apr. 27, 2020).11 They invoked the court‘s
This petition for habeas corpus, complaint for injunctive relief, and motion for temporary restraining order (“TRO“) followed the next business day after the Circuit lifted petitioners’ stay of removal. That evening, Judge Carl J. Nichols, acting in his capacity as emergency motion judge, administratively stayed the deportations of the detained petitioners until a judge could be assigned the case. Order Granting Administrative Stay (May 18, 2020), ECF No. 8. Petitioners had indicated that this case was related to M.M.V. because it involved the same petitioners seeking similar relief. Notice of Related Case (May 18, 2020), ECF No. 12. But this case raises different claims than those in M.M.V. There, petitioners challenged the legality of the process and standards that ICE used to determine that they were not entitled to asylum in the first instance. Here, petitioners seek to prevent the government from deporting them during a global pandemic in violation of the Constitution and the APA. Based on these differences, Judge Jackson determined the cases were not related and ordered this petition to be randomly reassigned. Minute Order (May 19, 2020); Order (May 21, 2020), ECF No. 15. She also extended Judge Nichols’ stay until the assignment was made. Id. Upon receiving the case, this Court further extended the administrative stay while it considered the TRO motion and heard oral argument two days later. The government filed an opposition prior to the hearing, and the Court permitted petitioners to file a reply afterwards. The government has also sought leave to file a surreply, which the Court has considered and grants leave file.12 The TRO motion is now ripe.
II. Legal Standards
“A TRO is an extraordinary remedy and should be granted sparingly.” Basel Action Network v. Mar. Admin., 285 F. Supp. 2d 58, 60 (D.D.C. 2003). To obtain a TRO, the moving party must show: (1) that he is likely to succeed on the merits of his claim; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. See Winter v. Nat‘l Res. Def. Council, 555 U.S. 7, 20 (2008); Hall v. Johnson, 599 F. Supp. 2d 1, 3 n.2 (D.D.C. 2009) (“The same standard applies to both temporary restraining orders and to preliminary injunctions“). The D.C. Circuit has suggested, without holding, that the failure to establish a likelihood of success on the merits categorically forecloses preliminary relief. Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011). It has made clear, however, that an absence of irreparable injury is fatal to a plaintiff‘s motion. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).
Before reaching the merits, the Court should ensure that it has jurisdiction to consider petitioners’ claims. Courts evaluate whether they have jurisdiction through the lens of the
III. Analysis
The petitioners who are currently detained at the Dilley and Berks facilities seek an emergency stay of their removal orders during the pandemic. They in essence raise two sorts of claims. First, they allege that the travel conditions they would experience during the deportation process do not comport with ICE or CDC guidelines and are inherently unsafe. Thus, they contend that requiring them to travel during the pandemic violates their substantive due process rights and the Administrative Procedure Act (“APA“). Second, they allege that the conditions they would encounter in their home countries after the deportation process are dangerous due to both the prevalence of COVID-19 and the stigma of having traveled from the United States. Consequently, they claim releasing them in those destinations during the pandemic would also violate their due process rights.
A. Likelihood of Jurisdiction
As mentioned, petitioners “must first demonstrate a likelihood of success in establishing jurisdiction.” Make the Rd., 962 F.3d at 623. ICE contends that the Court lacks the power to review petitioners’ claims due to section 242 of the INA,
1. Section 1252(a)(2)(A)
(2) Matters not subject to judicial review.
(A) Review relating to section 1225(b)(1). Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review—
(i) except as provided in subsection (e), any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) of this title.
The Supreme Court‘s ruling in Jennings v. Rodriguez highlights the point. Jennings presented a claim by arriving noncitizens that their prolonged detention without a bond hearing
A three-justice plurality of the Supreme Court rejected the government‘s argument.15 Writing for the plurality, Justice Alito explained that
Justice Thomas (along with Justice Gorsuch) rejected the plurality‘s reasoning because, to him, “detention is an ‘action taken . . . to remove’ an alien[.]” Id. at 855 (Thomas, J., concurring in part). As a result, he would have rejected the detainees’ challenge as they were only contesting the fact of their detention. Id. He noted, however, that his interpretation of the statute would still preclude the “staggering results” that the plurality feared. Id. He explained:
[M]y conclusion that § 1252(b)(9) covers an alien‘s challenge to the fact of his detention (an action taken in pursuit of the lawful objective of removal) says nothing about whether it also covers claims about inhumane treatment, assaults, or negligently inflicted injuries suffered during detention (actions that go beyond the Government‘s lawful pursuit of its removal objective).
Id. (citing Bell v. Wolfish, 441 U.S. 520, 536–39 (1979) (drawing a similar distinction)).
The three remaining justices would have read the language in
Petitioners’ first set of claims (i.e., those aimed at COVID-related travel risks) do not challenge the fact of their removals; they challenge the conditions they would face during the removal process. Those claims are not related to the executive‘s discretionary decisions to implement or execute a removal order. See Reno, 525 U.S. at 486 (recognizing that
In sum, the INA gives the government virtually unreviewable authority to decide whether and when to implement the petitioners’ removal orders, but the Court retains jurisdiction to hear claims challenging the constitutionality of the manner in which the government physically carries out the removals during the deportation process. That conclusion comports with the text and purpose of
2. Section 1252(g)
Turning to
By contrast, nondiscretionary decisions, such as physically deporting noncitizens in an unconstitutional manner, likely fall outside the statute‘s jurisdictional bar. And petitioners’ challenge to the physical manner of their deportation does not implicate the agency‘s discretionary decision to execute their removal orders. The immigration authorities are “empowered to remove Petitioner[s] at their discretion. But they cannot do so in any manner they please.” You, Xiu Quing v. Nielsen, 321 F. Supp. 3d 451, 457 (S.D.N.Y. 2018). The decisions challenged here regarding how to transport deportees during the ongoing pandemic are more akin to the “other decisions or actions that may be part of the deportation process—such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order“—that the Supreme Court in Reno found not to be encompassed by
Permitting judicial review of due process challenges to the conditions in petitioners’ home countries could also open the door to impermissible relitigation of negative credible-fear
Because the decision to return petitioners to their home countries is part and parcel of ICE‘s discretionary, unreviewable decision to execute their expedited removal orders, the Court
3. The Suspension Clause
The final aspect of the Court‘s jurisdictional inquiry involves the Suspension Clause of the Constitution, which prohibits the political branches from “suspend[ing]” the writ of habeas corpus “unless when in Cases of Rebellion or Invasion the public Safety may require it,”
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Section 1252 is one of the most comprehensive jurisdiction-stripping statutes in the United State Code, yet some claims manage to escape its clutches. Because the text of the
B. Likelihood of Success on the Merits
Again, the petitioners claim that the manner of their contemplated deportations—specifically, their exposure to the risks of contracting COVID-19 during the transportation process—would violate both their
1. Due Process
Taking due process first, the government argues out of the blocks that petitioners do not have due process rights because they have not been lawfully admitted to the United States. Gov‘t‘s Opp‘n 21. Not so. The Supreme Court recently clarified that an asylum seeker with a negative credible-fear determination “has only those rights regarding admission that Congress has provided by statute.” Thuraissigiam, 140 S. Ct. at 1982–83 (emphasis added) (citing Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” (emphasis added))). Petitioners here do not seek to vindicate procedural due process rights related to their asylum applications, which the Supreme Court has now expressly limited to the process provided by statute. Rather, they are seeking to enforce substantive due
The question, then, is whether the deporting the currently detained petitioners during the pandemic would likely offend due process. This Court recently laid out the constitutional standards that apply to a conditions of confinement challenge brought by noncitizens in civil immigration detention:
When the Government “takes a person into its custody and holds [her] there against [her] will, the Constitution imposes upon it a corresponding duty to assume some responsibility for [her] safety and general well-being[.]” DeShaney v. Winnebago Cnty. Dep‘t. of Social Serv., 489 U.S. 189, 199–200 (1989). Confinement of a person in a way that “renders [her] unable to care for [her]self, and at the same time fails to provide for [her] basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety” violates the Eighth Amendment to the Constitution. Id. Accordingly, the
Eighth Amendment prohibits the Government from “ignor[ing] a condition of confinement that is sure or very likely to cause serious illness.” Helling v. McKinney, 509 U.S. 25, 33 (1993). While civil immigration detainees are protected by theFifth Amendment‘s Due Process Clause, these Eighth Amendment protections nevertheless apply to them “because a [civil] detainee‘s rights are ‘at least as great as the Eighth Amendment protections available to a convicted prisoner.‘” Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *3 (W.D.N.Y. Apr. 2, 2020) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).To assess whether conditions of confinement violates due process, courts consider whether the conditions “amount to punishment of the detainee.” Bell, 441 U.S. at 535. Because civil immigration detainees, like pretrial criminal detainees, have not been convicted of any present crime, they “may not be subjected to punishment of any description.” Hardy v. District of Columbia, 601 F. Supp. 2d 182, 188 (D.D.C. 2009) (quoting Hill v. Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992)).
In determining whether conditions of confinement amount to punishment, “[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Bell, 441 U.S. at 538.
C.G.B., 2020 WL 2935111, at *22. Because petitioners would remain in ICE‘s custody during the deportation process up to the point of their release into their home countries, the Court will apply this standard to their challenge to the conditions attendant to that process.19 The relevant inquiry, therefore, is whether the manner in which their deportations would be carried out is “rationally related to a legitimate nonpunitive governmental purpose or . . . appear[s] excessive in relation to that purpose.” Kingsley, 135 S. Ct. at 2373–74 (quoting Bell, 441 U.S. at 538).20
The government plainly has a legitimate interest in the enforcement of immigration laws, and Congress has deemed that interest to be furthered by expeditiously removing asylum seekers who have been found not to have a credible fear of persecution in their native countries. See, e.g., Landon, 459 U.S. at 34 (“The government‘s interest in efficient administration of the immigration laws at the border . . . is weighty.“). In C.G.B., this Court considered whether the conditions of detention experienced by certain noncitizens at five ICE facilities across the country violated due process. Finding that the conditions likely violated the due process rights of some, but not all, of the detainees, the Court explained that “the Constitution does not require
As noted previously, ICE has provided the Court sworn declarations, which carry a presumption of good faith, indicating that it has taken a series of reasonable precautions to mitigate the possibility that petitioners traveling from the Berks or Dilley facility will be exposed to COVID-19 during their journey home. It will conduct verbal screenings and temperature checks of all deportees at each leg of the trip and prohibit anyone exhibiting COVID-19 symptoms from traveling further. It will provide all travelers with hand sanitizer and masks, which they will be required to wear. It has also arranged for dedicated charter flights and ground transportation for all trips, so no petitioner will be forced to congregate in commercial airports or travel in commercial vehicles or planes. Each flight will carry a healthcare provider proficient in aviation medicine, who will conduct additional pre-removal visual screenings and distribute additional PPE as needed. And ICE has committed to segregating families from individuals on flights and limiting the number of passengers on any given flight to allow for physical distancing “to the extent possible.”
Still, as ICE itself acknowledges, these preventative measures will not eliminate the risk of exposure altogether. Petitioners correctly note that ICE‘s inability to ensure complete compliance with CDC‘s social distancing guidelines will increase their risk of exposure to some extent. They also stress that ICE‘s failure to test every deportee (in lieu of symptom-based
More importantly, the Court must assess the conditions that petitioners would experience during the deportation process relative to those they would continue to face were the Court to grant the requested stay. While the parties have not provided the Court with any information on the prevalence of the virus or ICE‘s prevention efforts at the Berks and Dilley facilities, petitioners’ counsel are actively pursuing litigation against ICE elsewhere in this court on behalf of detainees at both facilities over their alleged non-compliance with CDC‘s COVID-19 guidelines. See Petition & Complaint at 3, O.M.G. v. Wolf, No. 20-cv-786 (JEB) (filed D.D.C. Mar. 21, 2020) (alleging that ICE has “failed to provide education to Petitioners and individuals employed at the [facilities], ensure that minimum basic necessities such as soap or hand sanitizer are provided, and ensure that is possible to achieve the critical need for social distancing“). Indeed, Judge Dolly Gee in the Central District of California recently found that detainees at ICE‘s family residential centers, including at Berks and Dilley, are at a high risk for COVID-19. Flores v. Barr, No. 85-cv-4544, 2020 WL 3488040, at *1 (C.D. Cal. June 26, 2020). She
The bottom line is that the risks of the removal process cannot be assessed a vacuum. Rather, the Court must ask whether it is reasonable for ICE to expose petitioners to the temporary risks of traveling as compared to the indefinite risks of remaining in congregate detention facilities with transient detainee populations who have not all been tested for the virus and staff entering and leaving every day. Viewed from that perspective, the Court has little difficulty concluding that petitioners are not likely to show that ICE will subject them to an unreasonable health risk by carrying out their removals with the precautionary measures ICE has committed to taking.
2. Administrative Procedure Act
Petitioners also contend that their removal during the pandemic would violate the
As this Court recently explained, “agency regulations do not create substantive due process rights.” C.G.B., 2020 WL 2935111, at *34 (emphasis in original). Accardi is instead “rooted instead in notions of procedural due process.” Id. (emphasis in original) (citing Lopez v. FAA, 318 F.3d 242, 246 (D.C. Cir. 2003); Thomas W. Merrill, The Accardi Principle, 74 Geo. Wash. L. Rev. 569, 577 (2006) (noting that all post-1950s Supreme Court cases “that reference the Accardi principle . . . involve procedural as opposed to substantive regulations.“)). In Damus v. Neilson, for example, the court held that plaintiffs could challenge ICE‘s failure to comply its own Parole Directive, which imposed “a number of procedural requirements for assessing asylum-seekers’ eligibility for release,” including “an opportunity to submit documentation, the availability of an individualized parole interview, and an explanation of the reasons for a parole denial.” 313 F. Supp. 3d at 324, 337; see also Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 151 (D.D.C. 2018)
C. Irreparable Injury
Moving to the irreparable injury prong of the
When the movant seeks to enjoin the government, the final two
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While petitioners will suffer irreparable harm insofar as they will not be able to mount this challenge after their deportation, because they are unlikely to succeed on the merits and the other two factors do not “‘clearly favor[]’ granting the injunction,” Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009), the Court must decline to enter a temporary restraining order and will lift the administrative stay of removal.
IV. Venue
Finally, the government asks the Court to transfer venue after denying petitioners’
Petitioners are generally correct. The Supreme Court has held that core habeas claims must follow the physical custody rule but that the rule should not be so rigidly applied to non-core claims. Padilla, 542 U.S. at 435. For non-core petitions, courts “have relied on traditional venue considerations such as the location of material events, the location of records and
V. Conclusion
While the Court concludes that petitioners have not satisfied the exacting standard required for the issuance of a
That said, and for the foregoing reasons, the Court must deny Petitioners’ Motion for a Temporary Restraining Order and lift the administrative stay. A separate Order shall follow.
Date: July 23, 2020
CHRISTOPHER R. COOPER
United States District Judge
Notes
Subsection (e), the carve out to the jurisdictional bar in
Thus, the only inquiry remaining is under romanette (i), which asks whether petitioners’ claims “aris[e] from or relat[e] to the implementation or operation of an order of removal pursuant to section 1225(b)(1).”