Valenzuela Arias v. DeckerValenzuela Arias v. Decker
ANALISA TORRES, District Judge:
Petitioners, Santo Valenzuela Arias and Edson Louis, were detained by Immigration and Customs Enforcement (“ICE“) in the Essex County Correctional Facility (“Essex County Jail“) in New Jersey, where cases of COVID-19 have been identified.1 Petition ¶ 2, ECF No. 1. Petitioners filed a petition for a writ of habeas corpus under
The Court granted the TRO, and directed Respondents to show cause why it should not be converted into a preliminary injunction. Valenzuela Arias v. Decker, No. 20 Civ. 2802, 2020 WL 1847986, at *9–10 (S.D.N.Y. Apr. 10, 2020). For the reasons stated below, Petitioners’ request for a preliminary injunction is GRANTED as follows: (1) Petitioners shall remain released, subject to the conditions set by the Court, see ECF Nos. 20, 21, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes unless Respondents first obtain the Court‘s permission.
BACKGROUND
Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. Petition ¶¶ 6, 7. They were housed in the Essex County Jail, where as of May 4, 2020, at least three detainees, 83 correction officers, and three civilian staff members have been diagnosed with COVID-19. Ortiz Decl. ¶ 31, ECF No. 33-1.
Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of serious injury or death if exposed to COVID-19. As a result of rib and chest
Petitioners moved for a TRO on April 8, 2020. ECF No. 3. The Court held a telephonic hearing on April 9, 2020, see April 9, 2020 minute entry, and on April 10, 2020, entered a TRO ordering Petitioners’ release, Valenzuela Arias, 2020 WL 1847986, at *9–10. The Court extended the TRO for good cause for an additional fourteen days in order to consider the parties’ submissions on the question of whether the TRO should be converted to a preliminary injunction. ECF No. 32.2 The Court now addresses, in turn, Respondents’ argument that the action should be severed into three individual proceedings, the question of venue, and the merits of Petitioners’ request for a preliminary injunction.
DISCUSSION
I. Severance
Consistent with its decision at the TRO stage, the Court remains unpersuaded by Respondents’ argument that the petition should be severed into separate habeas actions. Valenzuela Arias, 2020 WL 1847986, at *2–3; Resp. Opp. at 13–14, ECF No. 28.
The Court denied Respondents’ request to sever Petitioners’ claims for two reasons. First, the Court concluded that severance is inappropriate on the grounds of judicial economy and fairness. Id. at *2. Courts in this district have relied on this principle to deny the Government‘s request to sever a number of multi-party habeas petitions similar to this one. See Coronel v. Decker, 20 Civ. 2472, 2020 WL 1487274, at *2 (S.D.N.Y. Mar. 27, 2020) (severance denied because “the [c]ourt has already read and digested the record and heard lengthy oral argument on this motion—and the urgent need to timely decide [p]etitioners’ motion for a temporary restraining order in light of the immediate risk to the health of the [p]etitioners counsel against severance at this juncture.“); Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1953847, at *3 (S.D.N.Y. Apr. 23, 2020) (denying respondents’ request to sever a similar action brought by petitioner-detainees); Coronel, 20 Civ. 2472, ECF No. 35 at 3 (S.D.N.Y. Apr. 1, 2020) (denying without prejudice respondents’ motion to sever the joint petition after receiving further briefing). The amount of effort expended by this Court has only increased since the TRO stage, and splitting Petitioners’ claims now would create even greater inequity.
Second, the Court concluded that a single habeas action is merited because this matter is “uncluttered by subsidiary issues.” United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125–26 (2d Cir. 1974);
The Court remains convinced, therefore, that a procedure such as this multi-party habeas action is appropriate where Petitioners “shar[e] certain complaints about the legality” of their confinement. Bertrand v. Sava, 535 F. Supp. 1020, 1024 (S.D.N.Y. 1982) (citations omitted), rev‘d on other grounds, 684 F.2d 204 (2d Cir. 1982); see also id. at 1024–25 (“Such initiative and flexibility are essential to modern use of the writ [of habeas corpus] in order to cut through barriers of form and insure that miscarriages of justice are corrected.“).
Accordingly, Respondents’ request to sever the action into three 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 a state facility to hold Petitioners. Resp. Opp. at 12.
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, 2019 WL 4038555, at *3 (S.D.N.Y. Aug. 27, 2019) (internal quotation marks and citation omitted) (collecting cases), aff‘d, No. 18 Civ. 9948, 2019 WL 6318627 (S.D.N.Y. Nov. 26, 2019). Petitioners are held in a county jail under contract with ICE, but they are “in custody pursuant only to the power and authority of the federal government,” and, therefore, the person with the power to produce their bodies and effect their release is “the federal official most directly responsible for overseeing the contract facility.” Rodriguez Sanchez v. Decker, No. 18 Civ. 8798, 2019 WL 3840977, at *2 (S.D.N.Y. Aug. 15, 2019) (emphasis added) (internal quotation marks, citation, and alterations omitted); see also You v. Nielsen, 321 F. Supp. 3d 451, 461 (S.D.N.Y. 2018) (“Petitioner‘s immediate custodian is not the warden of the Bergen County Jail, but, in fact, ICE officials located in this district.“); Matias Madera v. Decker, No. 18 Civ. 7314, 2018 WL 10602037, at *3 (S.D.N.Y. Sept. 28, 2018) (“[T]he ICE District Director represents the first and most immediate federal official who is able [to] respond to the petition and, if indicated, deliver the relief sought.“).
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, 2019 WL 3840977, at *4; see also, e.g., Garcia v. Decker, No. 20 Civ. 1345, 2020 WL 1435007, at *2 (S.D.N.Y. Mar. 24, 2020) (“Respondent Decker is located within this [d]istrict and, as Director of the ICE NY Field Office, has control over [p]etitioner‘s detention.“); Matias Madera, 2018 WL 10602037, at *4 (“Respondent Decker is thus [the] proper respondent in these proceedings, because he can order the release of [p]etitioner.“). And Decker‘s office is located within the territorial jurisdiction of this Court. See Petition ¶ 9.
Accordingly, Respondents’ motion to dismiss Decker and to transfer Petitioners’ claims to the District of New Jersey is DENIED.
However, “there is generally only one proper respondent to a given prisoner‘s habeas petition.” Padilla, 542 U.S. at 434. Unlike Decker, Wolf is the acting Secretary of Homeland Security, a “remote supervisory official” who does not have “immediate custody” of Petitioners. Id. at 435 (internal quotation marks and citation omitted); see Petition ¶ 10. Because he is “only connected to Petitioner[s] as Decker‘s supervisor,” he is “not a proper party to this case.” Matias Madera, 2018 WL 10602037, at *4.
Accordingly, Wolf is DISMISSED from this action.
III. Preliminary Injunction
A. Legal Standard
A preliminary injunction sought against government action taken pursuant to a statute or regulatory scheme requires that “the moving party . . . demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction.” Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016). “A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citation omitted).
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 that 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, 2020 WL 1876328, at *6 (S.D.N.Y. Apr. 15, 2020) (“[I]rreparable harm exists where, as here, petitioners face imminent risk to their health, safety, and lives.” (internal quotation marks and citation omitted)). The Court addresses each injury in turn.
a. Risk of Serious Illness or Death
Based on the record before it, the Court concludes that Petitioners would face a risk of serious illness or death if returned to civil immigration detention at the Essex County Jail.
i. Essex County Jail
As of the date of this opinion, there are more than 3.8 million confirmed cases of COVID-19 worldwide and over 1.25 million cases in the United States. Center for Systems Science and Engineering at Johns Hopkins University, Coronavirus COVID-19 Global Cases, Coronavirus Resource Center (May 7, 2020), https://coronavirus.jhu.edu/map.html. Some 267,996 people have died from the disease worldwide; at least 26,130 have died in New York. Id. New Jersey also has a devastating outbreak of the virus, with 1,381 deaths in Essex County. New Jersey Dep‘t of Health, New Jersey COVID-19 Dashboard, Official Site of the State of New Jersey (May 7, 2020), https://www.nj.gov/health/cd/topics/covid2019_dashboard. shtml (noting 133,635 confirmed cases and 8,801 deaths statewide).
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 Essex County Jail, among others, after reviewing Centers for Disease Control and Prevention (“CDC“) guidance, ICE guidance, and the declaration filed by the jail‘s director. Gonsalves Decl. ¶¶ 3, 43, ECF No. 34-1. 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.” Id. ¶ 63. 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 another action 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.
This Court also recently concluded that vulnerable detainees at the Essex County Jail are at risk of serious illness or death, notwithstanding the additional measures
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, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.“).
The Court takes judicial notice that COVID-19 causes severe medical complications and has increased lethality among people with underlying health problems. 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 (“[P]eople of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.“); see
Petitioners are at particular risk for severe illness or death, because their preexisting medical conditions make them more likely to develop serious complications due to COVID-19. Respondents do not dispute that Louis’ breathing restrictions and chest injuries put him in the high-risk category, and that a doctor who examined him concluded that he faces grave consequences should he contract the virus. Petition ¶ 6; see Resp. Opp. at 20–21. Valenzuela Arias has a lump in his chest that
The risk that Petitioners will face a severe, and quite possibly fatal, infection in immigration detention constitutes irreparable harm warranting a preliminary injunction. See Barbecho, 2020 WL 1876328, at *6 (concluding that detainees who “face a risk of severe, irreparable harm—including death—if they contract COVID-19” met burden of showing irreparable harm); Coronel, 2020 WL 1487274, at *3 (“Due to their serious underlying medical conditions, all [p]etitioners [at Essex County Jail, among others,] face a risk of severe, irreparable harm if they contract COVID-19. . . . [B]eing in immigration detention places [p]etitioners at significantly higher risk of contracting COVID-19. Individuals in carceral settings are at a ‘significantly higher’ risk of spreading infectious diseases.” (citation omitted)); Basank, 2020 WL 1953847, at *7 (holding that immigration detainees at the Essex County Jail faced irreparable harm because of the threat of COVID-19); Velesaca v. Decker, No. 20 Civ. 2643, Order, ECF No. 29 (S.D.N.Y. Apr. 16, 2020) (granting immediate release of petitioner in light of the COVID-19 pandemic); Nikolic v. Decker, No. 20 Civ. 2500, ECF No. 19 at 1 (S.D.N.Y. Apr. 3, 2020) (ordering release of medically vulnerable individual in light of COVID-19).
b. Constitutional Violations
Second, Petitioners have also shown irreparable injury because they allege 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., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks and citation omitted)); Statharos v. New York City Taxi & Limousine Comm‘n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.“); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of success on the merits of a constitutional violation is not necessary); Sajous v. Decker, No. 18 Civ. 2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2018) (finding that immigration detainee established irreparable injury by alleging that prolonged immigration detention violated his constitutional due process rights).
The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent the preliminary injunction.
2. Likelihood of Success on the Merits
Petitioners argue that a return to confinement in the Essex County Jail would violate their due process rights. Pet. Reply at 10–15. The Court agrees. Notwithstanding the steps that have been taken at the facility since the Court issued its
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, 533 U.S. 678, 693 (2001). An application for habeas corpus under
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, 849 F.3d 17, 35 (2d Cir. 2017). “Deliberate indifference” to serious medical needs “can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official 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.” Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (internal quotation marks, citation, and alterations omitted).
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, 509 U.S. 25, 33 (1993). Petitioners need not demonstrate that “they actually suffered from serious injuries” to show a due process violation. Darnell, 849 F.3d at 31; see Helling, 509 U.S. at 33. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to their future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35 (alteration omitted)).
b. Analysis
Respondents argue that ICE has set in motion various steps to improve health and sanitation at the Essex County Jail, and have submitted the declaration of the facility‘s warden attesting to the actions taken. See Ortiz Decl. They point out that 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 place 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 8–10; see also Ortiz Decl. ¶¶ 8–9, 15–21. Respondents contend that these measures undercut
The standard for deliberate indifference, however, is not one of malice. Rather, Petitioners may establish deliberate indifference through intentional denial of care (the subjective standard), or by showing that Respondents “recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the [Respondents] knew, or should have known, that the condition posed an excessive risk to [the Petitioners‘] health or safety” (the objective standard). Charles, 925 F.3d at 87.3 Based on the record before it, the Court concludes that the inadequate measures implemented by Respondents amount to a reckless failure to act with reasonable care to protect Petitioners as high-risk individuals.4
First, the Court finds that Respondents have not put into place adequate measures to identify, protect, and treat detainees who are at a heightened risk of contracting or suffering grave complications from COVID-19. Respondents indicate that vulnerable detainees “are being housed separately,” and that staff working with them wear personal protective gear. Ortiz Decl. ¶ 33. But detainees are designated as high-risk only if, in the facility‘s judgment, they have “chronic conditions that place them at higher risk for COVID-19” and “those conditions are not well-controlled.” Ortiz Supp. Decl. ¶ 18, ECF No. 33-2. It is not clear how the facility determines which underlying illnesses are “well-controlled,” nor is there any evidence in the record that demonstrates that an inmate with a “well-controlled” chronic condition is not still at increased risk of experiencing complications from a COVID-19 infection.
Moreover, Respondents cannot provide assurances that COVID-19 is not already present among the separately housed vulnerable population. Although Respondents assert that they engage in “daily monitoring” of high-risk detainees, Ortiz Decl. ¶ 15(f), and “increased monitoring” of the detainee population as a whole, id. ¶ 15(g), there is evidence that the facility‘s procedures
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 Essex County Jail. See How to Protect Yourself & Others, Centers for Disease Control and Prevention (Apr. 24, 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 “[k]eeping distance from others is especially important for people who are at higher risk of getting very sick“). Detainees 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. The facility‘s director concedes that the top and bottom bunks of each bed are separated by less than six feet, and that the beds, which are bolted to the ground, are also less than six feet apart from each other. Ortiz Supp. Decl. ¶ 7; see Picasso Decl. ¶ 6, ECF No. 3-3 (noting that detainees in Essex County Jail sleep “very close together—two people in a small room with bunk beds“); Khan Decl. ¶ 7 (“The dorm is one big hall and there are about 48 people in our dorm. . . . I was always within six feet from other people no matter where I went in the dorm.“); Perez Decl. ¶ 4 (The cells were small and I was very close to my cellmate – I could not stay six feet away from him in the cell.“). Moreover, even in the common areas, it does not appear that detainees can consistently practice social distancing. Perez Decl. ¶ 6 (“When we were out of our cells, the group of 30 people would use the phones, the bathrooms and the microwave. . . . We were always very close to one another and always within six feet of one another.“); Picasso Decl. ¶¶ 4–5 (attesting that it was “impossible to maintain six feet of distance” in the common space); Pena Decl ¶¶ 4–5, ECF No. 3-2 (averring that even after the facility reduced the number of inmates who could be out of their cell at any given time, “the dorms weren‘t big enough for us to stay away from people and we would still come into contact with them—people would group in lines waiting for the phone and the bathrooms. It was impossible to stay away from people even if I wanted to because the room just wasn‘t big enough.“). Gonsalves opines that “[g]enerally social distancing is impossible to obtain in a jail or prison setting, and none of the ICE declarations provide any
Third, the Essex County Jail uses “cohorting” to separate possibly infected detainees. But instead of isolating each individual, the facility groups them together. See Ortiz Decl. ¶ 21. This practice risks spreading the virus to otherwise healthy inmates. See Gonsalves Decl. ¶ 47. Respondents complain that in granting the TRO, the Court “misinterpret[ed] [the Essex County Jail‘s] practices and CDC guidance as pertains to the ‘cohorting’ of detainees,” Resp. Opp. at 17, because the Court found that the Essex County Jail‘s practice of cohorting individuals with potential exposure to the virus was not in line with the CDC‘s admonition that “[o]nly individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention (Apr. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html; see Valenzuela Arias, 2020 WL 1847986, at *4. Respondents argue that the CDC also indicates that correctional facilities may cohort exposed individuals as a last resort, so long as they are not cohorted with confirmed cases. Resp. Opp. at 17–18; see Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities. There is no evidence in the record that individually quarantining exposed detainees would be impossible. But more to the point, if vulnerable detainees with underlying illnesses face the possibility of being cohorted with others who may or may not be infected with COVID-19, then the vulnerable detainees face an increased risk of infection with the virus.5 The cohorting practice described, therefore, does not adequately protect Petitioners.
Fourth, Respondents’ assurance that the Essex County Jail is “testing its entire population using rapid antibody screening,” Ortiz Decl. ¶ 32, provides no solace. The facility‘s medical director explains that population-wide testing is underway using “[a]ntibody blood tests, which are also called serology tests,” Anicette Decl. ¶ 8, as a “screening tool to determine appropriate housing conditions,” id. ¶ 11. The Essex County Jail first tested all new admissions, then detainees deemed to be high-risk, and is now in the process of testing the remainder of the population. Id. ¶ 13. The facility quarantines for 14 days any individual who tests positive for certain antibodies associated with COVID-19. Id. ¶ 15. This procedure is deeply flawed, as
Finally, the Court is not persuaded that it should draw an inference in Respondents’ favor based on what Respondents characterize as swift action by ICE to identify and release vulnerable detainees. Resp. Opp. at 18. For one, this Court is not alone in finding that the pace of ICE‘s response demonstrates deliberate indifference to the needs of those in its custody. See Fraihat v. U.S. Immigration & Customs Enf‘t, No. 19 Civ. 1546, 2020 WL 1932570, at *22 (C.D. Cal. Apr. 20, 2020) (“[ICE] made an intentional decision to promulgate only non-binding guidance for the first month of the pandemic, despite some knowledge of the risk posed by COVID-19. The March 6, March 27, and April 4, 2020 ICE guidance documents illustrate [ICE‘s] awareness of a grave risk, but their failure to mandate a facility-wide
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 v. Decker, this Court ordered immediate release of ten individuals detained in ICE custody at county jails in New Jersey, including the Bergen and Essex County Jails. No. 20 Civ. 2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020); see also Basank, 2020 WL 1953847, at *13 (converting TRO into preliminary injunction on supplemented record). In Coronel, another court in this district released seven ICE detainees, including detainees at the Essex County Jail, due to their underlying medical conditions, which include obesity, hypertension, and gastrointestinal problems, in light of ICE‘s insufficient steps to protect high-risk detainees. 2020 WL 1487274, at *1, *10. The same critical deficiencies have led other courts in this district to find a likelihood of success on the merits of a deliberate indifference claim brought by ICE detainees. See Velesaca v. Decker, No. 20 Civ. 2643, TRO Hr‘g Tr. at 23:10–15, ECF No. 30 (S.D.N.Y. Apr. 13, 2020) (“[A]lthough the record reflects the respondents have taken general proactive steps to prevent the spread of COVID-19 in the Orange County Correctional Center, consistent with other courts in this district, I find such measures are unresponsive to [petitioner‘s] needs as a high-risk individual“); Barbecho, 2020 WL 1876328, at *4 (ordering release of detainees because “beyond [a] custody re-assessment, [r]espondents have failed to offer any evidence of measures designed to address the needs of those high-risk detainees who ICE has re-assessed and determined should remain in ICE custody“); Avendaño Hernandez v. Decker No. 20 Civ. 1589, 2020 WL 1547459, at *2–3 (S.D.N.Y. Mar. 31, 2020) (holding that an immigration detainee had established a “substantial claim for deliberate indifference” where ICE and the county jail in which he was held had “not taken any action to address the particular risks that COVID-19 poses to high-risk individuals,” but rather had taken “only generalized proactive measures to prevent detainees within [their] care from contracting and spreading the virus“).7
The Court holds, therefore, that Petitioners are likely to succeed 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 were unmet.8
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 a specific danger to the public or risk of flight that necessitates returning Petitioners to confinement in an ICE detention facility. See generally Resp. Opp. In any event, the Court has imposed strict conditions of release that fully address any such concerns. See ECF Nos. 20, 21. Respondents note that Valenzuela Arias was mandatorily detained pursuant to
Finally, the public interest favors Petitioners’ release. Petitioners were confined for civil violations of the immigration laws. In the current crisis, public health and safety are best served by rapidly decreasing the number of individuals held in confined, unsafe conditions. As another court in this district has observed, “[d]ecreasing the [ICE detention] population will . . . ‘mitigate the damage’ to both the [j]ail and the surrounding community and thereby ‘reduce the death toll.‘” Barbecho, 2020 WL 1876328, at *7 (quoting United States v. Nkanga Nkanga, No. 18 Cr. 713, 2020 WL 1529535, at *1 (S.D.N.Y. Mar. 31, 2020)). “Indeed, reducing the size of the population in jails and prisons reduces the level of risk both for those within those facilities and for the community at large.” Id. (internal quotation marks, citation, and alterations omitted).
Respondents argue that the public interest is disserved by “constitutionalizing” the Government‘s response to a public health crisis. Resp. Opp. at 22. Suffice it to say that the constitutional requirement that the Government eliminate “a condition of confinement that is sure or very likely to cause serious illness and needless suffering” for those it has chosen to imprison is not a novel one. Helling, 509 U.S. at 33. When that fundamental obligation is violated, there is no public interest in turning a blind eye. Rather, “the public interest lies with the enforcement of the Constitution.” Ligon v. City of New York, 925 F. Supp. 2d 478, 541 (S.D.N.Y. 2013).
Accordingly, the Court holds that Petitioners have established their entitlement to a preliminary injunction under
IV. Mapp v. Reno
Even if Petitioners had not met the requirements for a preliminary injunction, the Court would release them on bail pending final resolution of their habeas claims under the Second Circuit‘s decision in Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). In Mapp, the Second Circuit held “that the federal courts have inherent authority to admit to bail individuals properly within their jurisdiction” including immigration detainees petitioning for habeas relief. Id. A habeas petitioner‘s “fitness for bail” depends on “whether the habeas petition raises substantial claims and whether extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.” Id. at 230 (internal quotation marks, citation and alteration omitted).
For the reasons already stated, Petitioners’ habeas claims are plainly substantial. Indeed, as the Court has already held, they are likely to succeed on the merits. And releasing Petitioners from confinement pending final adjudication of their petition is necessary to “make the habeas remedy effective.” Id. “Severe health issues have been the prototypical but rare case of extraordinary circumstances that justify release pending adjudication of habeas.” Coronel, 2020 WL 1487274, at *9 (collecting cases); see, e.g., Barbecho, 2020 WL 1876328, at *8 (“If these Petitioners—whose medical conditions place them at a higher risk of severe illness, or death, from COVID-19—were to remain detained, they would face a significant risk that they would contract COVID-19—the very outcome they seek to avoid. Release is therefore necessary to make the habeas remedy effective.” (internal quotation marks and citation omitted)); United States v. Nkanga, No. 18 Cr. 713, 2020 WL 1695417, at *3 (S.D.N.Y. Apr. 7, 2020) (granting bail pending resolution of a habeas claim under
Accordingly, the Court holds, in the alternative to granting Petitioners’ motion for a preliminary injunction, that bail is imposed pending final resolution of their petition for habeas corpus. Their bail conditions shall be the same as the conditions set in the TRO, and extended by the preliminary injunction.
CONCLUSION
For the reasons stated in this opinion, it is hereby ORDERED that:
- Petitioners’ request for a preliminary injunction is GRANTED as follows:
- Petitioners shall remain released, subject to the conditions already set by the Court, and
- Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes unless Respondents first obtain the Court‘s permission;10
- Wolf is DISMISSED from this action; and
- The preliminary injunction shall remain in effect until further order of the Court.
SO ORDERED.
Dated: May 8, 2020
New York, New York
ANALISA TORRES
United States District Judge
Notes
Gonsalves Decl. ¶ 50 (internal quotation marks and citations omitted).It is also particularly concerning that Essex County Jail plans to use serologic, or so-called antibody, testing of detainees to make critical decisions about how to house and isolate its population. Although Essex County Jail touts this plan as a sign of its commitment to comprehensive testing, antibody testing should not be used to diagnose active infection (PCR-based antigen tests are used for that) nor as a way to ascertain if someone has been exposed to or recovered from or is immune from SARS-COV-2. The CDC, the Food and Drug Administration (“FDA“), and the World Health Organization (“WHO“) all warn against using antibody tests to determine whether an individual is infected or was previously infected with COVID-19. The New York City Department of Health and Mental Hygiene recently warned healthcare providers that “serologic tests should not be used to diagnose acute or priors SARS-CoV-2 infection, nor should they be used to determine immune status to SARS-CoV-2. Due to the prevalence of false results (e.g. false positive and false negatives), the uncertainty, in fact, lack of evidence to support even a true positive results’ association with immune protection, relying on serologic tests in this way may in fact increase exposure to COVID-19 among detainees at Essex County Jail.