Case Information
*1
ANALISA TORRES, District Judge:
Pеtitioners Henry Ferreyra, Jefferson Denizard, Angel Perdomo Perdomo, and Rolando Oshane Villiers are currently detained by Immigration and Customs Enforcement (“ICE”) in county jails where cases of COVID-19 have been identified. [1] Petition ¶¶ 6–9, ECF No. 1. Petitioners filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, requesting release from ICE custody because of the public health crisis posed by COVID-19. See id .
On April 23, 2020, Petitioners moved for a temporary restraining order (“TRO”) [2] requiring Respondents—Thomas Decker, as Director of the New York Field Office of ICE and Chad Wolf, as Acting Secretary of the U.S. Department of Homeland Security—to (1) immediately release Petitioners from detention, subject to reasonable conditions, and (2) refrain from arresting Petitioners during the pendency of their immigration proceedings, in light of the public health crisis posed by COVID-19. See TRO Mot. at 1–2, ECF No. 4.
For the reasons stated below, the TRO is GRANTED as follows: (1) Respondents and the Bergen, Essex, and Orange County Correctional Facilities are ORDERED to release Petitioners upon satisfaction of conditions to be imposed by the Cоurt, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes until further order of the Court.
BACKGROUND
Petitioners were detained by ICE in connection with removal proceedings. See Petition ¶ 18. They are housed in two New Jersey and one New York county jails where either detainees or staff have tested positive for COVID-19. Petition ¶ 2; TRO Mem. at 1. Specifically, Ferreyra and Villiers are detained at the Bergen County Correctional Facility (“Bergen County Jail”). Petition ¶¶ 6, 9. Perdomo Perdomo is detained at the Essex County Correctional Facility (“Essex County Jail”). Id. ¶ 8. And Denizard is detained at the Orange County Correctional Facility (“Orange County Jail”). Id. ¶ 7. Ferreyra, Perdomo Perdomo, and Villiers were detained in connection with removal proceedings pending at the Varick Street Immigration Court. Id. ¶¶ 6, 8, 9.
Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of serious injury or death if exposed to COVID-19. Ferreyra, who has smoked for almost four decades, is 53 years old, and suffers from asthma, emphysema, and diabetes. Id. ¶ 6. Additionally, he has been diagnosed with severe psychiatric conditions, including schizophrenia, chronic post-traumatic stress disorder (“PTSD”), major depressive disorder, episodic paroxysmal anxiety, and anxiety disorder. Id. Denizard, age 27 and a daily smoker, has diminished lung capacity, shortness of breath during any type of physical activity, and a compromised immune system; he also suffers from severe chronic pain. ¶ 7. At 50, Perdomo Perdomo is a long- time smoker and suffers from deformities of the nose, inflammation of the lungs, problems with his prostate gland, and possible cirrhosis of the liver. Id. ¶ 8. In 2017, he was hit by a vehicle and had to undergo brain surgery to alleviate swelling. As a result, Perdomo Perdomo has “extremely low cognitive functioning,” which makes conforming with social distancing and other preventive measures challenging. Id. Villiers is 24 and suffers from asthma. Id. ¶ 9. He was initially detained at the Essex County Jail and then transferred to the Bergen County Jail, where he is currently housed. Id. Though he was previously prescribed an inhaler, it was taken from him at the Bergen County Jail, and he is now experiencing shortness of breath.
At 2:00 p.m. on April 24, 2020, the Court held a telephonic hearing on Petitioners’ request for a TRO. The Court now addresses, in turn, the issues of severance, venue, and Petitioners’ request for a TRO.
DISCUSSION
I. Severance
Respondents argue that the petition should be severed into separate habeas actions. Resp. Opp. at 16–19, ECF No. 7. The Court disagrees.
First, severance is inappropriate given the equities and the time the Court has already
devoted to considering the parties’ submissions.
See Valenzuela Arias v. Decker
, No. 20 Civ.
2802,
Second, a single habeas action is merited because this matter is “uncluttered by
subsidiary issues.”
United States ex rel. Sero v. Preiser
,
Here, the health risks posed by COVID-19 and the constitutional claims presented do not turn on facts unique to each Petitioner beyond their having preexisting conditions that make them vulnerable to the virus. Cf. Bob v. Decker , No. 19 Civ. 8226, ECF No. 4 at 3 (S.D.N.Y. Oct. 15, 2019) (requiring three pro se petitioners to proceed in three separate habeas actions, because the petitioners each alleged that they were denied a different type of medical care). Rather, Petitioners raise almost identical questions of law and fact, including whether Respondents are adequately protecting Petitioners from contracting COVID-19, whether Respondents are deliberately indifferent to Petitioners’ medical needs, and whether release from detention is justified under these circumstances. See Petition.
Third, Petitioners allege shared harms, including the alleged systemic failure of Respondents to identify and protect individuals in immigration detention at the Bergen, Essex, and Orange County Jails who are at high risk of complications from COVID-19. The extraordinary circumstance of the COVID-19 crisis warrants a multi-party habeas petition permitting expeditious resolution of the claims before the Court.
The Court concludes, therefore, that considerations of “judicial economy and fairness
argue persuasively for the construction of a procedure” such as this multi-party habeas action,
where Petitioners “shar[e] certain complaints about the legality” of their confinement.
Bertrand
v. Sava
,
Accordingly, Respondents’ request to sever the action into five individual habeas petitions is DENIED.
II. Venue
Respondents argue that they are not properly named in the petition, because although
Petitioners are detained at the command and under the authority of Respondents, Respondents
have contracted with state facilities to hold them. Resp. Opp. at 19–20. 28 U.S.C. § 2242
provides that an applicatiоn for a writ of habeas corpus should be directed to “the person who
has custody over [the applicant].”
See also
28 U.S.C. § 2243 (“The writ, or order to show cause
shall be directed to the person having custody of the person detained.”). The Supreme Court has
held that in challenges to detention, therefore, the proper respondent is the “person who has the
immediate custody
of the party detained, with the power to produce the body of [petitioner]
before the court or judge.”
Rumsfeld v. Padilla
,
The Court disagrees. Though it remains an unsettled question, “courts in this [d]istrict
have repeatedly recognized, in cases where a petitioner is detained in a non-federal facility
pursuant to the power and authority of the federal government and under a contract with the
federal government, the proper respondent is the federal official with the most immediate control
over that facility.”
Cruz v. Decker
, No. 18 Civ. 9948,
In this case, “Field Office Director Decker [is] the federal official with the most
immediate control over the non-federal facility in which Petitioner[s] [are] being detained,” and
is the proper respondent.
Rodriguez Sanchez
,
Accordingly, Respondents’ motion to dismiss Decker and to transfer the claims of Ferreyra, Perdomo Perdomo, and Villiers to the District of New Jersey is DENIED.
However, “there is generally only one proper respondent to a given prisoner’s habeas
petition.”
Padilla
,
Accordingly, Wolf is DISMISSED from this action.
III. Temporary Restraining Order
A. Legal Standard
“It is well established that in this Circuit the standard for an entry of a TRO is the same as
for a preliminary injunction.”
Andino v. Fischer
,
B. Analysis
1. Irreparable Harm
To establish irreparable harm, Petitioners “must demonstrate that absent a preliminary
injunction they will suffer an injury that is neither remote nor speculative, but actual and
imminent, and one thаt cannot be remedied if a court waits until the end of trial to resolve the
harm.”
Id
. (internal quotation marks and citation omitted). Petitioners have shown irreparable
harm by establishing the risk of injury to their health and constitutional rights.
See Barbecho v.
Decker
, No. 20 Civ. 2821,
a. Risk of Serious Illness or Death Based on the record before it, the Court concludes that Petitioners face a risk of serious illness or death in civil immigration detention at the Bergen, Essex, and Orange County Jails.
i. Bergen, Essex, and Orange County Jails As of the date of this opinion, there are more than 2.9 million confirmed cases of COVID-19 worldwide, with over 900,000 cases in the United States. Center for Systems Science and Engineering at Johns Hopkins University, Coronavirus COVID-19 Global Cases , Coronavirus Resource Center (Apr. 27, 2020), https://coronavirus.jhu.edu/map.html. Some 207,431 people have died from the disease worldwide; at least 17,280 have died in New York City, all in the course of a few weeks. The New Yоrk-New Jersey area is recognized as a global epicenter for the pandemic, accounting for more than 40% of the United States’ COVID- 19 cases and almost 50% of the nation’s deaths due to the virus. Petition ¶ 25.
In New Jersey, there have been 109,038 confirmed cases and 5,938 deaths. New Jersey Dep’t of Health, New Jersey COVID-19 Dashboard , Official Site of the State of New Jersey (Apr. 26, 2020), https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml. 14,965 of those cases are in Bergen County, where Ferreyra and Villiers are housed, and 12,863 of those cases are in Essex County, where Perdomo Perdomo is detained, and those counties have had 955 and 1023 deaths, respectively. Id. In Orange County, where Denizard is being held, COVID-19 is spreading rapidly: 7,770 people have been infected and 274 people have died. Orange County NY COVID-19 Cases by Town ,
https://ocnygis.maps.arcgis.com/apps/opsdashboard/index.html#/21de1fb5ce0c480f95dc0cf2b8b 83b71 (Apr. 27, 2020); see also Petition ¶ 34 (noting 7,152 confirmed cases and 243 deaths as of April 21, 2020).
The jails are no exceptions. Each of the jails where a Petitioner is housed has reported confirmed cases of COVID-19. Petition ¶ 2; TRO Mem. at 1. This includes, at the time of the TRO’s filing, at least 24 correction officers, four nurses, two ICE detainees, and one county inmate at the Bergen County Jail; at least 57 staff members, three ICE detainees, and five county inmates, as well as 98 inmates and detainees in quarantine, at the Essex County Jail; and one correction officer confirmed infected, and four correction officers alleged to have been infected, at the Orange County Jail. Petition ¶ 45; TRO Mem. at 12–13.
The nature of detention facilities makes exposure and spread of the virus particularly harmful. Gregg S. Gonsalves, Ph.D., an epidemiologist at the Yale School of Medicine and School of Public Health, submitted a declaration in this matter, discussing the conditions at the Bergen, Essex, and Orange County Jails after reviewing, Centers for Disease Control and Prevention (“CDC”) guidance, ICE guidance, and declarations filed by the jails’ directors. Gonsalves Decl. ¶¶ 3, 43, ECF No. 4-2. It is Gonsalves’ “professional judgment that individuals placed in these jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected.” ¶ 62. Jaimie Meyer, M.D., M.S., who has worked extensively on infectious disease treatment and prevention in the context of jails and prisons, agrees; she submitted a declaration in this district noting that the risk of COVID-19 to people held in New York-area detention centers “is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Meyer Decl. ¶ 7, Velesaca v. Wolf , 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42.
“It is nearly impossible to prevent widespread infections inside the Bergen, Essex, and Orange County Jails because detainees live, sleep, and use the bathroom in close proximity with others, and because ‘behind bars, some of the most basic disease prevention measures are against the rules or simply impossible.’” Petition ¶ 54 (citation and alteration omitted). Gonsalves explains that the Bergen, Essex, and Orange County Jails are “under-equipped and ill-prepared to manage the current COVID-19 outbreak within these facilities and to prevent further community spread. This reality will result in severe harm to those detained, as well as corrections and civilian staff at the facilities and the broader New York and New Jersey community.” Gonsalves Decl. ¶ 44. Gonsalves concludes that “[r]educing the size of the population in jails and prisons is crucially important to reducing the level of risk both for those within those facilities and for the community at large.” ¶ 63.
A number of courts in this district and elsewhere have recognized the threat that COVID-
19 poses to individuals held in jails and other detention facilities.
See, e.g.
,
United States v.
Roberts
, No. 18 Cr. 528-5,
ii. Petitioners’ Medical Conditions
Courts have recognized the health risk posed by COVID-19 to be particularly acute for
detainees who have underlying illnesses.
See Jones v. Wolf
, No. 20 Civ. 361, 2020 WL
1643857, at *13 (W.D.N.Y. Apr. 2, 2020) (“[P]etitioners with the CDC-identified vulnerabilities
face a grave, irreparable risk to their health and safety if they remain confined under current
conditions” in a facility where COVID-19 is spreading);
United States v. Martin
, No. 19 Cr. 140-
13,
The Court takes judicial notice that COVID-19 causes severe medical complications and
has increased lethality amongst people of advanced age, and those with underlying health
problems, or both.
People Who Are at Higher Risk for Severe Illness
, Centers for Disease
Control and Prevention (Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specific-
groups/high-risk-complications.html (“[O]lder adults and people of any age who have serious
underlying medical conditions might be at highеr risk for severe illness from COVID-19.”);
Information for Healthcare Professionals: COVID-19 and Underlying Conditions
, Centers for
Disease Control and Prevention (Apr. 6, 2020), https://www.cdc.gov/coronavirus/2019-
ncov/hcp/underlying-conditions.html (listing, among other medical diagnoses, “moderate to
severe asthma,” “people who have serious heart conditions,” “severe obesity,” “people who are
immunocompromised,” and “diabetes” as conditions that trigger higher risk of severe illness
from COVID-19);
see
Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not
subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot
be reasonably questioned.”);
Valenzuela Arias
,
Petitioners are at particular risk for serious illness or death, because their prеexisting medical conditions either make them more vulnerable to contracting COVID-19, or more likely to develop serious complications due to COVID-19, or both. Each Petitioner has underlying illnesses, including chronic respiratory illnesses such as asthma and emphysema, inflammation of the lungs, shortness of breath, diabetes, hypertension, and histories of smoking. Petition ¶¶ 6– 9. [3]
The risk that Petitioners will face a severe, and quite possibly fatal, infection while in
civil immigration detention constitutes irreparable harm warranting a TRO.
See Barbecho v.
Decker
, No. 20 Civ. 2821,
b. Constitutional Violations
Second, Petitioners have also shown irreparable injury because, as discussed below, they
face a violation of their constitutional rights. In the Second Circuit, it is well-settled that an
alleged constitutional violation constitutes irreparable harm.
See, e.g.
,
Connecticut Dep’t of
Envtl. Prot. v. O.S.H.A.
,
The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent a TRO.
2. Likelihood of Success on the Merits The Court concludes that Petitioners have met their burden of showing a likelihood of success on the merits. Petitioners argue that their remaining in an ICE detention center where COVID-19 is present and without adequate protection for their health violates their due process rights. TRO Mem. at 8. The Court agrees.
a. Legal Standard
The Due Process Clause of the Fifth Amendment to the United States Constitution
forbids the government from depriving a person of life, liberty, or property without due process
of law. The protection applies to “all ‘persons’ within the United States, including aliens,
whether their presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis
,
Immigration detainees can establish a substantive due process violation for unmet
medical needs by showing that a government official “knew, or should have known” of a
condition that “posed an excessive risk to health,” and failed to take appropriate action.
Darnell
v. Pineiro
,
Additionally, the Supreme Court has recognized that government authorities may be
deemed “deliberately indifferent to an inmate’s current health problems” where they “ignore a
condition of confinement that is sure or very likely to cause serious illness and needless suffering
the next week or month or year,” including “exposure of inmates to a serious, communicable
disease,” even when “the complaining inmate shows no serious current symptoms.”
Helling v.
McKinney
,
b. Analysis Respondents argue that ICE has set in motion various steps to improve health and sanitation at the Bergen, Essex, and Orange County Jails, and Respondents have submitted declarations of the facilities’ wardens attesting to the actions taken. See generally ECF No. 7. Petitioners have established, however, that Respondents have left in place conditions of confinement that result in COVID-19 posing an unreasonable risk of serious damage to their health. The measures that ICE and the Bergen, Essex, and Orange County Jails have taken fail to adequately protect Petitioners’ health in several crucial ways.
First, the Court finds that Respondents have not implemented specific measures to identify, protect, and treat inmates who are at a heightened risk of contracting or suffering grave complications from COVID-19. For example, protection of high-risk detainees appears to be limited to “daily monitoring of these inmates and detainees and the establishment of a plan to remove the inmates from the rest of the population should the need arise.” Ortiz Decl. ¶ 15(f), (g) (describing conditions at Essex County Jail); see generally Ahrendt Decl. (providing no information about measures tаken to protect at-risk detainees at Bergen County Jail); Catletti Decl. (same, for Orange County Jail); Flynn Decl. (same, for Orange County Jail). It is unclear—and at the hearing Respondents could not clarify—what the specifics of this “daily monitoring” entail. See also Gonsalves Decl. ¶ 51 n.65 (noting that the facilities fail to explain “who conducts that monitoring, how, when, or where it is conducted, or what steps are taken if a person exhibits symptoms of COVID-19 infection”). For detainees with underlying conditions like Petitioners’, monitoring them for signs of infection is too little, too late. Committing to “monitor” detainees rings especially hollow when, as Respondents conceded during oral argument, the monitoring depends on the person being monitored to report symptoms. The best, and perhaps only, way to protect Petitioners is to prevent infection in the first place. Respondents have not yet taken meaningful steps to do so.
Second, with respect to general conditions of confinement, the evidence submitted by Respondents does not indicate that social distancing is being practiced in various daily situations inside the Bergen, Essex, and Orange County Jails. See How to Protect Yourself & Others , Centers for Disease Control and Prevention (Apr. 13, 2020), https://www.cdc.gov/coronavirus/ 2019-ncov/prepare/prevention.html (recommending maintaining at least six feet of distance from other persons at all times and noting that “keeping distance from others is especially important for people who are at higher risk of getting very sick”). At the Bergen County Jail, for example, detainees sleep in bunk beds; at the Essex County Jail, they sleep in either a cell with a bunk bed, or in a dorm, which includes “bunks around the perimeter of the dorm” with “a seating area and recreation yard” in the center of the dorm. Ortiz Decl. ¶ 6. Respondents cannot be heard to say that while asleep in bunk beds, inmates are positioned six feet apart from one another. Compare Ahrendt Decl. ¶ 6, ECF No. 29-3 (claiming that social distancing is possible in Bergen County Jail cells that measure 10 feet by 7 feet and have bunk beds, but failing to explain how cellmates can maintain a six-foot distanсe while asleep or when moving about the cell in order to use the toilet or stretch their legs); Ortiz Decl. ¶ 6 (claiming that “spacing in the buildings [in Essex County Jail] allow” for social distancing, but failing to address whether bunk beds in dorms permit social distancing), with Picasso Decl. ¶ 6, ECF No. 4-6 (noting that detainees in Essex County Jail sleep “very close together—two people in a small room with bunk beds”); see also Paul Decl. ¶ 9 (“The jail was supposed to enforce social distancing but they did not enforce it. It’s impossible to keep a safe distance when you are locked in with 56 detainees in one pod. Every other cell shares a vent, I know this because sometimes I would be able to smell the odor coming from the cell next to mine. If that person were to get infected, I surely would have too.”) (describing conditions at Orange County Jail).
Moreover, even in the common areas, it does not appear that detainees are being required to practice social distancing. See Picasso Decl. ¶¶ 4–5 (attesting that it was impossible to maintain six feet of distance in the common space); Martinez Decl. ¶ 7 (“The [Bergen County] jail was supposed to enforce us not being together, but their attempt to do this was a failure. All they did was tell us that we had to be moved because there could not be too many of us together. However, they were not prepared for the move. It was impossible to keep us distant because there were about 56 of us who had to be moved. When they brought in new people, they did not perform any exam on them for the virus.”); Paul Decl. ¶ 11 (noting that Orange County Jail detainees “were all allowed to interact with everyone else from our pod,” and “did not have enough space to keep a safe distance in the pod.”). Even at the Orange County Jail, where Respondents represent that they are not aware of any positive cases among detainees, the lack of testing, the failure to enforce social distancing, and the failure to provide masks or gloves for use by inmates or staff, all place the facility at risk for the introduction and sprеad of COVID-19. See Hernandez Roman v. Wolf , 5:20 Civ. 768, ECF No. 53 ¶¶ 33 (C.D. Cal. Apr. 23, 2020) (“While there are not, yet, any confirmed COVID-19 cases at [the] Adelanto [ICE Processing Center], it is, merely, fortuitous that an outbreak has not yet occurred, especially given the lax safety standards, now, in place.”). As Gonsalves opines, “[g]enerally social distancing is impossible to obtain in a jail or prison setting, and none of the ICE declarations provide any evidence to alter my view.” Gonsalves Decl. ¶ 55. Respondents have put forth no expert opinion to rebut Gonsalves’ declaration, including his finding that consistent social distancing is virtually impossible in jail settings. The undisputed expert evidence before the Court indicates, therefore, that the precautionary measures implemented at these facilities are inadequate to address the risk of severe illness or death confronting detainees with underlying medical conditions.
Though the Bergen, Essex, and Orange County Jails have taken some steps to mitigate the spread of COVID-19, the risk of Petitioners’ infection is still very real. The Bergen County Jail has suspended dеtainee intake, implemented medical screening for county inmate intake, required temperature checks and medical screening for staff members and vendors entering the facility, put into practice measures to evaluate, test, treat, quarantine, and segregate inmates or detainees, provided information to staff and detainees about the importance of handwashing and other ways to reduce the spread of COVID-19, required inmates and detainees to wear surgical masks when they are out of their cells, permitted only six inmates or detainees to use the recreational space at a given time, and limited attorney visits to window visits only. Resp. Opp. at 8–10; see also Ahrendt Decl. ¶¶ 6–9, ECF No. 7-6. The Essex County Jail has implemented health and temperature checks for all detainees who enter the facility, provided additional on-site medical staff, obtained testing kits, obtained protective equipment and supplies, educated staff, inmates, and detainees on best practices, put into placе new food service protocols (including no longer permitting detainees or inmates to work in the kitchens), increased cleaning, suspended classes and religious services led by volunteers, and limited attorney visits to window visits only. Resp. Opp. at 11–12; see also Ortiz Decl. ¶¶ 8–9, 15–21, ECF No. 7-7. And the Orange County Jail has suspended all ICE incoming detainees, screened incoming inmates for fever and respiratory illness, developed quarantine protocols, screened staff members, vendors, and visitors (which includes having their temperatures taken, prior to entering the facility), educated staff, detainees, and inmates regarding COVID-19 protocols, and increased cleaning and sanitization. Resp. Opp. at 13–14; see also Flynn Decl. ¶¶ 17–20, ECF No. 7-9; Catletti Decl. ¶¶ 8–9, ECF No. 7-8.
These measures likely result in some reduction of risk of infection, but they are insufficient. As the declarants in support of Petitioners’ application attest, the facilities still see obviously symptomatic inmates among the general population, limited access to soap and protective gear such as masks and glоves, the failure of detainees to practice social distancing, and the facilities’ failure to enforce it. See, e.g. , Saenz Decl. ¶¶ 16–29, ECF No. 4-1; Paul Decl. ¶ 14, ECF No. 4-4 (noting that detainees at the Orange County Jail were not allowed to have alcohol-based hand sanitizer and had difficulty obtaining extra soap); see also Resp. Opp. at 10– 14 (conceding that the Bergen County Jail issues masks, but not gloves, to detainees, and that at the Essex County Jail, only symptomatic detainees are provided masks, and Orange County Jail does not provide masks to staff or detainees). Detainees also report that because they received little information about COVID-19 from the jails, they gathered together to watch the news on television in order to learn about the virus, see Martinez Decl. ¶ 4, ECF No. 4-8; Mendez Ramirez Decl. ¶ 4, ECF No. 4-3. In some cases, detainees wait a week to see a doctor after complaining of cough, fever, and respiratory issues, C.G.L. Decl. ¶ 3, ECF No. 4-7. Detainees state that showers and phones are not being cleaned or disinfected regulаrly, and that they resort to placing a stocking over the phone for protection. E.g. , Martinez Decl. ¶ 13. And although the jails may intend to wipe down phones after each use, sanitization has been spotty. See Paul Decl. ¶ 7 (attesting that correction officers at the Orange County Jail would often forget to bring the bleach needed to disinfect the phones).
The Bergen, Essex, and Orange County Jails also “cohort” detainees who have been exposed to individuals who have tested positive for COVID-19—that is, house them together with one another, and separate from the rest of the population. See Resp. Opp. at 10, 12, 14. But cohorting in this manner does nothing to stop the spread of untested cases; indeed, in some situations, it might exacerbate the spread of disease, if asymptomatic but infected detainees mingle with uninfected ones. According to the CDC, cohorting is a practice that should be used only as a last resort. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Faсilities , Centers for Disease Control and Prevention (Apr. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction- detention/guidance-correctional-detention.html (indicating that individuals should be cohorted together only if facilities are unable to accommodate individual isolation); see also Gonsalves Decl. ¶ 47 n.59 (“[T]he Bergen County Jail cohorts people who have tested positive for COVID- 10 in the same unit with people who are symptomatic and waiting for test results, which directly contradicts the CDC guidelines. Further, overall the facilities do not appear to test individuals who were exposed but are asymptomatic but instead cohort them with others, inadvertently spreading the virus as part of their protection plan.” (citations omitted)). Respondents do not claim, however, that they cohort detainees because isolation of individual inmates is not possible at these facilities.
Finally, Respondents have offered no evidence indicating that testing is systematically used to ascertain the scope of, cоntain, and treat the outbreak—or the threat of an outbreak in the case of the Orange County Jail. See Ahrendt Decl. ¶ 9(h) (failing to address whether symptomatic or high-risk individuals at the Bergen County Jail are tested and under what circumstances, or explain whether other individuals will be tested); Ortiz Decl. ¶¶ 4, 16(a), 17– 18 (indicating that Essex County Jail acquired 50 testing kits, but failing to explain how those kits can be used effectively to protect a jail population of close to 2,000); Catletti Decl. ¶ 9(f) (stating that the Orange County Jail follows CDC guidance with respect to testing, without providing any specifics, including which detainees or inmates are being tested). And although the warden of the Essex County Jail reports that the facility is “rolling out rapid COVID-19 testing for its entire population,” Ortiz Decl. ¶ 32, there is no indication (and at oral argument, Respondents were unable to clarify) whether or when that process will begin, how long it will take, or what response will follow.
A number of courts in this district and beyond have held that habeas petitioners have
demonstrated a likelihood of success under similar conditions. In
Basank
, this Cоurt ordered
immediate release of ten individuals detained in ICE custody at county jails in New Jersey,
including the Bergen and Essex County Jails.
In
Coronel
, another court in this district released seven ICE detainees at the Bergen,
Essex, and Orange County Jails, due to their underlying medical conditions, which include
obesity, hypertension, and gastrointestinal problems.
The Court holds, therefore, that Petitioners are likely to succеed on the merits of their due process claim that Respondents knew or should have known that Petitioners’ conditions of confinement pose excessive risks to their health and that their specific medical needs are unmet. [5]
3. Balance of Equities and Public Interest
The equities and public interest weigh heavily in Petitioners’ favor. Petitioners face
irreparable injury—to their constitutional rights and to their health. The potential harm to
Respondents is limited. Respondents have not identified any specific danger to the public or risk
of flight that would justify Petitioners’ confinement in dangerous conditions,
see generally
Resp.
Opp. In any event, in granting the TRO, the Court will impose conditions of release that will
address any such concerns.
[6]
Respondents note that Ferreyra and Denizard are mandatorily
continued confinement, without adequate protection for their health, violates their due process rights. In
Hope v.
Doll
, a court granted the immediate release of 22 immigration detainees held at facilities with reported COVID-19
cases, finding that “the protective mеasures in place . . . are not working.” No. 20 Civ. 562, ECF. No. 11 at 13
(M.D. Pa. Apr. 7, 2020). As the court explained, “[i]t now seems that our worst fears have been realized—COVID-
19 is spreading, and not nearly enough is being done to combat it. We cannot allow the [p]etitioners before us, all at
heightened risk for severe complications from COVID-19, to bear the consequences of ICE’s inaction.”
Id.
at 19. A
court in that same district released 13 individuals from ICE detention, who suffered from medical conditions such as
high blood pressure, diabetes, asthma, and trouble breathing.
Thakker v. Doll
, No. 20 Civ. 480,
Finally, the public interest favors Petitioners’ release. Petitioners are confined for civil
violations of the immigration laws. In the highly unusual circumstances posed by the COVID-19
crisis, the continued detention of aging or ill civil detainees does not serve the public’s interest.
To the contrary, public health and safety аre served best by rapidly decreasing the number of
individuals held in confined, unsafe conditions.
See, e.g.
,
Grand River Enterprises Six Nations,
Ltd. v. Pryor
,
Accordingly, the Court holds that Petitioners have established their entitlement to a TRO under Rule 65 of the Federal Rules of Civil Procedure. [7]
recognizance and requiring enrollment in the Intensive Supervision Appearance Program in addition to electronic monitoring).
[7] Respondents argue that “any injunctive relief should not apply once a final order of removal is entered,” because “the issuance of such final orders changes the legal basis of immigration detainees’ detention.” Resp. Opp. at 29 n.7. It is true that a different statutory provision authorizes detention of noncitizens against whom a final order of removal has been entered, see 8 U.S.C. § 1231(a)(2), but that change in statutory authority does not alter the unconstitutionality of holding detainees in conditions where they face an unreasonable risk of being infected with a deadly virus, the irreparable harm it causes, or the rank inequity and harm to the public that would result. Perhaps, if a final order of removal were entered against a Petitioner and not stayed by a court of appeals, and Respondents
IV. Mapp v. Reno
Even if Petitioners had not met the requirements for a TRO, the Court would release them
on bail pending final resolution of their habeas claims under the Second Circuit’s decision in
Mapp v. Reno
,
sentencing proceeding (which occurred on March 12, 2020) in relation to the emerging COVID- 19 pandemic” (internal quotation marks and citation omitted)); Avendaño Hernandez , 2020 WL 1547459, at *3 (“Petitioner argues that he is being subject to unconstitutional conditions of confinement—specifically, continued risk of exposure to COVID-19—and he seeks release so that he can avoid infection. If Petitioner were to remain detained, he would face a significant risk that he would contract COVID-19—the very outcome he seeks to avoid.” (internal quotation marks, citation and alterations omitted)). Detention of Petitioners pending final adjudication of this action could cause severe illness or death—precisely the harm their petition seeks to avert. The effectiveness of the habeas remedy can only be preserved, therefore, by Petitioners’ remaining released for the duration of this matter.
Accordingly, the Court holds, in the alternative to granting Petitioners’ application for a TRO, that bail shall be imposed pending final resolution of their petition for habeas corpus. Their bail conditions shall be the same as those to be set under the TRO, as indicated below.
CONCLUSION
For the reasons stated in this opinion, the TRO is GRANTED as follows: (1) Respondents and the Bergen, Essex, and Orange County Jails are ORDERED to release Petitioners upon satisfaction of conditions to be imposed by the Court. It is further ORDERED that the parties shall meet and confer, and, by 4:00 p.m. on April 27, 2020 , propose reasonable conditions of release for each Petitioner.
Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes unless Respondents first obtain the Court’s permission.
The TRO will expire on May 11, 2020 , at 10:45 a.m. No later than May 4, 2020 , Respondents must show cause why the TRO should not be converted to a preliminary injunction. Petitioners may file a response no later than May 8, 2020 .
Respondent Chad Wolf is DISMISSED from the case. The Clerk of Court is directed to terminate the motion at ECF No. 4.
SO ORDERED.
Dated: April 27, 2020, 10:45 a.m.
New York, New York
Notes
[1] The Petition included a fifth Petitioner, Remigio Tapia Vilchis. TRO Mot. 1 n.1. Respondents agreed to release Vilchis prior to the filing of the motion for a TRO. Accordingly, in this order “Petitioners” refers only to the four applicants for a TRO.
[2] Petitioners filed their motion for a TRO and memorandum in support in a single ECF document. To avoid confusion, the Court will cite to pages in the motion itself as “TRO Mot.,” and to pages in the supporting memorandum of law as “TRO Mem.”
[3] The Court is concerned that Perdomo Perdomo’s low level of cognitive functioning may severely limit his ability to abide by social distancing requirements and other preventive measures. Petition ¶ 8. The Court also notes that Villiers’ health has only been further compromised because his inhaler, prescribed to treat his asthma, was taken from him when he was apprehended by ICE. ¶ 9.
[4] Courts in other districts have also found that ICE detainees have shown a likelihood of success on their claims that