COVID-19 summary: In this case, federal district judge Allison Nathan (SDNY) granted emergency relief on March 26, 2020, requiring ICE to release seven at-risk detainees from immigration detention in light of the grave threat posed by congregate detention during the COVID-19 pandemic.
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On March 20, 2020, seven persons held in civil immigration detention centers in the New York City area -- who because of serious and chronic medical conditions face a significant risk of severe illness or death if they catch COVID-19 -- filed this habeas petition and complaint in the United States District Court for the Southern District of New York. Represented by the Bronx Defenders and the Legal Aid Society, the plaintiffs sued the director of U.S. Immigration and Customs Enforcement's (ICE) New York City field office, the director of the U.S. Department of Homeland Security (DHS), the United States Attorney General, and the directors of three New York City area civil immigration detention facilities. The plaintiffs claimed that the risk posed to them by continued detention during an outbreak of COVID-19 in New York City that reached a New York City ICE facility violated their procedural and substantive due process rights. They sought an order "directing Defendants to immediately release Plaintiffs from custody on their own recognizance or on reasonable conditions of supervision" or, in the alternative, "an order requiring Defendants to provide Plaintiffs with constitutionally adequate, individualized hearings within 48 hours" and prove that continued detention is justified in light of plaintiffs' vulnerability to COVID-19. The plaintiffs also sought attorneys' fees and costs. The case was assigned to Judge Alvin K. Hellerstein.

The New York City metropolitan area was an epicenter of the global COVID-19 pandemic; at the time the complaint was filed, there were "over 7,800 confirmed cases in New York and New Jersey and 44 virus-related deaths." To contain the outbreak, officials in New York took unprecedented measures to emphasize and enforce social distancing, ordering workers to stay home, banning gatherings of over 50 people, and shutting down schools, restaurants, and bars. However, immigration detention facilities, where detainees are "packed in close quarters" and "forced to share necessities like showers, telephones, toilets and sinks with dozens of others" make the practice of adequate social distancing difficult. If COVID-19 were introduced into these detention centers its spread would be difficult to contain. The spread of COVID-19 (for which there is no vaccine, known treatment, or cure) would be especially dangerous for detainees with serious medical conditions such as congestive heart failure, diabetes, hypertension, and kidney malfunction. Medical health experts have concluded that reducing jail populations is a "necessary component of risk mitigation during widespread COVID-19 outbreak, and that officials should first focus on vulnerable populations to reduce harm to the entire population."

The plaintiffs claimed that "the continued imprisonment of these high-risk individuals violates their due process rights both by constituting deliberate indifference to serious medical harm and by failing to provide procedural safeguards commensurate with the serious deprivation of life and liberty that they face." Moreover, the plaintiffs asserted that ICE has the authority to release individuals like the plaintiffs but that ICE has not responded to plaintiffs' request for bond or release, despite the evidence that plaintiffs are neither dangerous nor flight risks. Under normal circumstances, the plaintiffs would be able to seek bond hearings in immigration courts to prove that they are not a danger or flight risk. However, plaintiffs claimed that due to the COVID-19 outbreak, immigration courts in the New York City area "no longer provide an effective venue for detainees to vindicate their right to review their detention through bond hearings." Thus, the plaintiffs argued that they were unable to "promptly access any meaningful administrative remedy" and that bringing this suit was their only recourse.

The plaintiffs requested that this case be filed as related to Velesaca v. Decker (IM-NY-0072 in this Clearinghouse), a case in which the plaintiffs' requested relief of individualized custody determinations for civil immigration detainees was made more urgent by the risk of COVID-19 spreading in ICE facilities.

On March 23, 2020, the plaintiffs filed a motion for temporary restraining order (TRO), seeking an "order directing their immediate release while this case proceeds in order to prevent potentially irreversible injury, in a situation where the 'magnitude of risk [] grow[s] exponentially' by the day and even the hour." At the time this motion was filed, plaintiffs stated that COVID-19 had spread to at least two of the jails where ICE held five of the plaintiffs. The plaintiffs asserted that they would suffer irreparable harm in the absence of a TRO, that they would succeed on the merits of their claims of deliberate indifference and lack of procedural safeguards, and that the balance of equities and public interest weigh in their favor; thus, a TRO granting their immediate release was appropriate.

The case was reassigned to Judge Alison J. Nathan on March 25.

After holding oral argument before the court on March 26, Judge Nathan issued an opinion and order granting the plaintiffs' motion for TRO, requiring defendants to release the plaintiffs from immigration detention "on reasonable conditions." Judge Nathan held that the plaintiffs would suffer irreparable injury absent a TRO, considering the increased risk of severe injury or death if they catch COVID-19 due to their underlying health conditions. Judge Nathan also concluded that continued detention in immigration detention "places Petitioners at significantly higher risk of contracting COVID-19" and that "jails will struggle to contain any eventual outbreak of COVID-19." Judge Nathan further found that the plaintiffs were likely to succeed on their substantive due process claim that defendants acted with deliberate indifference to their serious medical needs, noting that "the record contains no evidence that the Government took any specific action to prevent the spread of COVID-19 to high-risk individuals, like the Petitioners, currently being held in civil detention." Moreover, Judge Nathan concluded that plaintiffs "have demonstrated a likelihood of success on their claim that the Due Process Clause entitles Petitioners to an expeditious bond hearing that considers the individualized risk that COVID-19 poses to their health." Lastly, Judge Nathan held that, because this was a "rare case of extraordinary circumstances," "release is therefore necessary to 'make the habeas remedy effective.'"

The same day, after conferring with the parties, Judge Nathan issued an order clarifying the conditions for the release of four of the plaintiffs. Two of the plaintiffs were to be released on conditions the parties agreed to: "on their own recognizance and enrolled in the Intensive Supervision Appearance Program (ISAP) subject to the following conditions: that they not violate any laws or ordinances; that they surrender for removal, if so ordered, and that they keep ICE and EOIR advised of any changes in address." As to the two remaining plaintiffs to be released, Judge Nathan ordered that they be released subject to the same agreed-upon conditions, as well as electronic monitoring. According to Judge Nathan's order, the four plaintiffs were released from immigration detention at 5 PM on March 27.

Following the court's grant of TRO, the plaintiffs filed a first amended petition for habeas relief on April 30, in which they joined four new plaintiffs. Defendants subsequently filed a letter to the court requesting that the court resolve threshold questions of severance and any related issues of joinder and amendment. After expedited briefing on these issues, Judge Nathan issued an order on April 1 prohibiting the joinder of the four new plaintiffs. Judge Nathan stated that joinder of the new plaintiffs was inappropriate because it would create the appearance of forum shopping.

On May 13, the defendants filed an opposition to the plaintiffs' petition for writ of habeas corpus. Defendants filed several exhibits and declarations in support of their opposition. However, because the Clearinghouse does not have access to the opposition or supplemental filings, the arguments raised by defendants are not available.

More coming soon.

Aaron Gurley - 03/28/2020


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