University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Velesaca v. Decker IM-NY-0072
Docket / Court 1:20-cv-01803-AKH ( S.D.N.Y. )
State/Territory New York
Case Type(s) Immigration and/or the Border
Special Collection COVID-19 (novel coronavirus)
Attorney Organization Bronx Defenders
New York Civil Liberties Union (NYCLU)
Case Summary
COVID-19 Summary: This case was initially filed in February 2020 to address the absence of bond hearings for ICE detainees in New York. Then on March 16, 2020, in light of the grave threat posed by congregate detention during the coronavirus pandemic, plaintiffs sought emergency relief: ... read more >
COVID-19 Summary: This case was initially filed in February 2020 to address the absence of bond hearings for ICE detainees in New York. Then on March 16, 2020, in light of the grave threat posed by congregate detention during the coronavirus pandemic, plaintiffs sought emergency relief: individualized determinations assessing whether detention is necessary in light of flight risk/public safety, and releases where it is not. On March 31, the Court issued an order granting this relief and enjoining the government's "No-Release Policy."


On February 28, 2020, a noncitizen placed in a federal immigration detention facility and denied bond or release while awaiting immigration hearings filed this class-action suit in the United States District Court for the Southern District of New York. Represented by the New York Civil Liberties Foundation and the Bronx Defenders, the petitioner sued the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, and individual agency officials; he filed a habeas petition to challenge that the absence of an adequate individual custody determination, which led to him being denied bond or release violated his statutory, regulatory, and constitutional rights. He sought declaratory relief that the ICE's practices were unlawful and an injunction ordering the government to conduct adequate individualized custody determinations for members of the proposed classes.

The policy challenged by the petitioner is referred to in the complaint as the "No-Release Policy." It is ICE's alleged policy of denying release and bond to all immigrant detainees arrested in the New York City area. The complaint asserted that the No-Release Policy violated federal law which requires that, within 48 hours of their arrest, many immigrant detainees get an individualized determination of whether they can be released while immigration proceedings go forward. According to data obtained by the petitioner's counsel under the Freedom of Information Act, "from 2013 to June 2017, approximately 47% of those deemed to be low risk by the government were granted release. From June 2017 to September 2019, that figure plummeted to 3%." Furthermore, the complaint alleged that in mid-2017, ICE had modified its risk-assessment tool's algorithm to prevent it from recommending that noncitizens be released--the tool was only able to recommend further detention. The petitioner claimed that the No-Release Policy resulted in thousands of detainees being denied individualized custody determinations and remaining in detention facilities "under harsh conditions of confinement akin to criminal incarceration."

The petitioner asserted four causes of action; violations of "the Immigration and Nationality Act and its implementing regulations, the Due Process Clause of the Fifth Amendment to the United States Constitution, the Administrative Procedure Act, and the Rehabilitation Act."

The two classes proposed by the petitioner were:
(1) The Petitioner Class: All individuals eligible to be considered for bond or release on recognizance under 8 U.S.C. § 1226(a)(1)-(2) by ICE’s New York Field Office who have been or will be detained without bond; and
(2) the Rehabilitation Act Subclass: All individuals with a disability, as defined by the Rehabilitation Act and its implementing regulations, who are eligible to be considered for bond or release on recognizance under 8 U.S.C. § 1226(a)(1)-(2) by ICE’s New York Field Office and who have been or will be detained without bond.

The case was assigned to Judge Hellerstein. The petitioner's motion for class certification is pending before the district court and the government has yet to file a response to the complaint.

On March 16, 2020, the petitioner filed a motion for a preliminary injunction, which argued:
This illegal practice of mass detention causes enormous and unnecessary irreparable harm, separating people from their families, jobs, and communities and exposing them to serious health risks without any individualized determination of whether the ongoing denial of liberty is justified. Exacerbating these harms—and increasing the urgency of the petitioners’ request for relief—is the threat posed by COVID-19, the pandemic experts predict will spread to New York City area immigration detention centers in a matter of days, bringing with it the threat of infection, pneumonia, sepsis, or even death.
The motion sought prompt provide individualized determinations for class members assessing "whether detention is necessary based on individualized assessments of the petitioners’ flight risk, danger to the community, and disability and issue class-wide preliminary declaratory relief ordering the same. Pursuant to its habeas jurisdiction, the Court should order release in the event of noncompliance with this procedural remedy."

In opposition to the motion for PI, defendants offered "a single core argument upon which most of its other contentions rely: The No-Release Policy does not exist." Instead, defendants claim that they are exercising discretion in the making of each individual custody determination. As their secondary argument, defendants asserted that "review is unavailable under the APA because Plaintiffs have not exhausted administrative remedies and because Plaintiffs do not challenge 'final agency action.'"

Following expedited briefing and a telephonic hearing, on March 31, Judge Hellerstein issued an order granting the plaintiffs' motion for preliminary injunction (PI). The order enjoined ICE's New York Field Office Director from following the No-Release Policy and to return to its pre-June 2017 practice of making individualized assessments about whether detention is justified by flight risk or danger. The defendants are required to file a report by April 17, 2020, identifying "all persons thus arrested by or under the authority of ICE's New York City Field Office and, of such persons, all such persons who have had their bond or recognizance application heard by an immigration judge." According to the NYCLU, "as a result of this ruling, many class members who are in ICE detention must be promptly evaluated for release. This expedited decision provides much-needed relief for people in detention who are exposed to the increasing threat of coronavirus spreading through crowded jails." In issuing the order, Judge Hellerstein did not provide a statement of its reasoning due to the expedited circumstances; however, "the Court, in due course, intends to deliver a more fulsome statement of its reasoning."

On April 27, plaintiffs filed a letter addressed to Judge Hellerstein requesting information regarding defendants' compliance with the PI. The defendants responded to the plaintiffs' letter on May 1. The Clearinghouse does not have access to these filings, so the extent to which the defendants have complied with the PI is unclear.

On May 4, Judge Hellerstein issued "a formal opinion explaining more fully the Court's reasoning for its oral ruling granting Plaintiffs' motion" for a PI. Judge Hellerstein concluded that "[p]laintiffs have established a clear and substantial likelihood of being able to demonstrate that the No-Release Policy exists . . . and that none of the procedural hurdles identified by Defendants preclude my awarding injunctive relief in Plaintiffs' favor." In concluding that the plaintiffs were likely to demonstrate that the No-Release Policy exists, Judge Hellerstein was persuaded by data provided by the plaintiff showing a "substantial increase in detention rates for final decisions in the New York Field Office beginning in 2017." Moreover, defendants acknowledged that a No-Release Policy "is inconsistent with the INA and regulations passed thereunder, at least without notice-and-comment rule making." Because "the Court ha[d] already found that Plaintiffs have shown they will suffer irreparable harm without relief and that the equities tilt in Plaintiffs' favor, injunctive relief is called for here." 2020 WL 2114984. (S.D.N.Y. May 04, 2020).

Judge Hellerstein stated at the end of this opinion that the parties had disagreements regarding the implementation of the PI and that these disagreements "culminated in the government's filing of a motion to clarify and/or amend the injunction" on May 1. After expedited briefing and hearing, Judge Hellerstein issued an order on May 15 denying the defendants' motion to clarify/amend the PI. Judge Hellerstein stated that
Defendants were required to: 1. Apply the injunction to all persons who were detained as of April 10, 2020 pursuant to 8 U.S.C. § 1226(a), except those persons already given an individualized custody determination by an immigration judge, and expeditiously determine, or redetermine, their custody status consistent with the injunction; and to 2. Report to the court on May 22, 2020, and weekly thereafter, as to the progress made, which shall be steady and expeditious. All custody determinations and redeterminations must be completed by June 5, 2020. If extensions are required, Defendants may make an application therefore, showing good cause.
Judge Hellerstein followed up his May 15 order, giving further explanation of his decision to deny the motion to amend or modify.

The case remains ongoing with a hearing set for August 25.

Aaron Gurley - 05/18/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process: Procedural Due Process
Suspension Clause
Content of Injunction
Preliminary relief granted
General
Bail/Bond
Conditions of confinement
Fines/Fees/Bail/Bond
Habeas Corpus
Over/Unlawful Detention
Pattern or Practice
Placement in detention facilities
Immigration/Border
Detention - conditions
Detention - criteria
Detention - procedures
Medical/Mental Health
COVID-19 Mitigation Granted
COVID-19 Mitigation Requested
Medical care, general
Plaintiff Type
Private Plaintiff
Special Case Type
Habeas
Type of Facility
Government-run
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
All Writs Act, 28 U.S.C. § 1651
Declaratory Judgment Act, 28 U.S.C. § 2201
Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Mandamus, 28 U.S.C. § 1361
Defendant(s) U.S. Department of Homeland Security
U.S. Immigration and Customs Enforcement
Plaintiff Description Persons placed in immigration detention facilities in the New York City area who were denied release or bond while awaiting immigration hearings.
Indexed Lawyer Organizations Bronx Defenders
New York Civil Liberties Union (NYCLU)
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
Filed 02/28/2020
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Jose L. Velesaca v. Chad Wolf et al
NYCLU
Date: 2020
By: NYCLU
[ Detail ] [ External Link ]

Docket(s)
1:20-cv-01803 (S.D.N.Y.)
IM-NY-0072-9000.pdf | Detail
Date: 07/07/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
IM-NY-0072-0001.pdf | Detail
Date: 02/28/2020
Petitioners'-Plaintiffs' Memorandum of Law in Support of Motion for a Preliminary Injunction [ECF# 41]
IM-NY-0072-0002.pdf | Detail
Date: 03/16/2020
Source: Plaintiffs' counsel
Declaration of Dr. Jamie Meyer [ECF# 42]
IM-NY-0072-0005.pdf | Detail
Date: 03/16/2020
Source: PACER [Public Access to Court Electronic Records]
Declaration of Marinda Van Dalen [ECF# 43]
IM-NY-0072-0004.pdf | Detail
Date: 03/16/2020
Source: PACER [Public Access to Court Electronic Records]
Declaration of Andrea Saenz, Esq. [ECF# 44]
IM-NY-0072-0003.pdf | Detail
Date: 03/16/2020
Source: PACER [Public Access to Court Electronic Records]
Teleconference (PI)
IM-NY-0072-0007.pdf | Detail
Date: 03/30/2020
Source: ACLU
Order Granting Plaintiffs' Motion for a Preliminary Injunction [ECF# 67] (S.D.N.Y.)
IM-NY-0072-0006.pdf | Detail
Date: 03/31/2020
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order Granting Plaintiffs' Motion for a Preliminary Injunction [ECF# 78] (2020 WL 2114984) (S.D.N.Y.)
IM-NY-0072-0008.pdf | WESTLAW | Detail
Date: 05/04/2020
Source: Westlaw
Order Denying Motion to Modify and Clarify Preliminary Injunction [ECF# 91] (S.D.N.Y.)
IM-NY-0072-0009.pdf | Detail
Date: 07/06/2020
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Hellerstein, Alvin K. (S.D.N.Y.) show/hide docs
IM-NY-0072-0006 | IM-NY-0072-0007 | IM-NY-0072-0008 | IM-NY-0072-0009 | IM-NY-0072-9000
Plaintiff's Lawyers Belsher, Amy (New York) show/hide docs
IM-NY-0072-0001 | IM-NY-0072-0002 | IM-NY-0072-9000
Borchetta, Jennifer Rolnick (New York) show/hide docs
IM-NY-0072-0001 | IM-NY-0072-0002 | IM-NY-0072-9000
Dunn, Christopher (New York) show/hide docs
IM-NY-0072-0001 | IM-NY-0072-0002 | IM-NY-0072-0007 | IM-NY-0072-9000
Hodgson, Robert (New York) show/hide docs
IM-NY-0072-0001 | IM-NY-0072-0002 | IM-NY-0072-0007 | IM-NY-0072-9000
Jain, Niji (New York) show/hide docs
IM-NY-0072-0002 | IM-NY-0072-0007 | IM-NY-0072-9000
Sallomi, Megan (California) show/hide docs
IM-NY-0072-0001 | IM-NY-0072-0002 | IM-NY-0072-0007 | IM-NY-0072-9000
Scott-Railton, Thomas (New York) show/hide docs
IM-NY-0072-0002 | IM-NY-0072-0007
Defendant's Lawyers Berman, Geoffrey S. (New York) show/hide docs
IM-NY-0072-0007
Waterman, Brandon M. (New York) show/hide docs
IM-NY-0072-0007 | IM-NY-0072-9000
Other Lawyers Wu, Steven C. (New York) show/hide docs
IM-NY-0072-9000

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