Bahena Ortuno v. Jennings

Opinion

1 2 3 6 7 SOFIA BAHENA ORTUÑO, et al., Case No. 20-cv-02064-MMC

8 Plaintiffs, ORDER RE: DEFERRED PORTION OF 9 v. PETITIONERS' MOTION FOR TEMPORARY RESTRAINING ORDER; 10 DAVID JENNINGS, et al., DIRECTIONS TO PETITIONERS Defendants. 11

12 13 On April 8, 2020, the Court issued its order granting in part and denying in part 14 petitioners' Motion, filed March 24, 2020, for a Temporary Restraining Order. Now before 15 the Court is the deferred portion thereof, specifically, petitioners' request that Olvin Said 16 Torres Murillo ("Torres Murillo") and Mauricio Ernesto Quinteros Lopez ("Quinteros") be 17 released from detention. As to these two petitioners, the parties, with leave of court, 18 have filed supplemental briefs and evidence. Having read and considered the parties' 19 respective written submissions, the Court rules as follows. 20 In its April 8 order, the Court ruled on the motion as to all petitioners other than 21 Torres Murillo and Quinteros. (See Doc. No. 38.) To the extent such order is applicable 22 to all petitioners, the Court incorporates said order herein. 23 In that same order, the Court identified and discussed the factors "pertinent in 24 assessing the propriety of any injunctive relief." See Winter v. Natural Resources 25 Defense Council, Inc., 555 U.S. 7, 32 (2008). This order considers the question of 26 whether those factors weigh in favor of or against the relief sought on behalf of Torres 27 Murillo and Quinteros. 1 Petitioners assert, and respondents do not dispute, that Torres Murillo has 2 hypertension and has been receiving medication for such condition while detained. (See 3 Weisner Decl. ¶¶ 8-10.) Petitioners also assert, and respondents do not dispute, 4 Quinteros has hypertension and that respondents have been aware of such condition as 5 of the date he was detained by ICE. (See Patel Decl. ¶ 5; Supp. Freeman Decl. Ex. B at 6 5.) Although respondents, citing a page of a Centers for Disease Control website, argue 7 persons with hypertension have not been recognized as being at a higher risk of severe 8 illness or death if infected with COVID-19, another page of the same website does 9 include persons with hypertension in that higher-risk group, see 10 www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html 11 (listing hypertension as condition "associated with increased illness severity and adverse 12 outcomes"), and, as petitioners point out, several medical studies have found persons 13 with hypertension are at such higher risk (see Supp. Keller Decl. ¶ 5). 14 Accordingly, for the same reasons as were found as to petitioners Salomon 15 Medina Calderon, Gennady V. Lavrus, Charles Joseph, and J Elias Solorio Lopez, the 16 Court finds a clear showing has been made by Torres Murillo and Quinteros as to the 17 four pertinent factors. Specifically, Torres Murillo and Quinteros have shown (1) they are 18 "likely to succeed on the merits" of their Fifth Amendment claim, (2) they are "likely to 19 suffer irreparable harm in the absence of preliminary relief" from their present conditions 20 of confinement, (3) the "balance of equities tips in [their] favor," and (4) "an injunction is in 21 the public interest." (See Doc. No. 38 at 2:10-13; see also id. at 6:22-8:21.) 22 Respondents argue Torres Murillo and Quinteros, for reasons specific to said petitioners, 23 nonetheless should not be released. The Court addresses below the circumstances 24 pertaining to these two petitioners. 25 Torres Murillo entered the country lawfully on a T-2 visa more than nine years ago, 26 has no criminal history, and, at the time of his detention by ICE, was residing lawfully in 27 the Bay Area with his wife and two children. See Torres Murillo v. Barr, Civil Case No. 1 detention is a notice issued by Honduras requesting he be so held. Although an 2 immigration judge found the possibility of his involuntary return to Honduras made Torres 3 Murillo a potential flight risk, the notice was issued over a year and half ago, and 4 Honduras has taken no steps to seek Torres Murillo's extradition. (See Second Supp. 5 Kaiser Decl. ¶ 3.) Moreover, according to the Department of Justice, the United States 6 does not consider such notice "alone to be a sufficient basis for the arrest of a subject 7 because it does not meet the requirements for arrest under the 4th Amendment to the 8 Constitution." See https://www.justice.gov/interpol-washington/frequently-asked- 9 questions. 10 Quinteros entered the country legally on a six-month tourist visa but remained 11 after it expired, which extended stay was the basis for his detention. (See Bonnar Decl. 12 ¶ 13.) He subsequently was found by an immigration judge to pose a danger to the 13 community in light of a single vehicle code violation, which, although as Quinteros 14 conceded, involved his driving a motorcycle at a high rate of speed (see Supp. Freeman 15 Decl. Ex. B at 9), is his only encounter with law enforcement during the five years he has 16 been here. Further, although respondents state Quinteros's name is in an El Salvador 17 gang-membership database (see Second Supp. Bonnar Decl. ¶ 2), the immigration judge 18 found Quinteros was not a gang member (see Supp. Freeman Decl. Ex. B at 14). 19 Under the circumstances, the Court finds respondents' concerns do not warrant 20 denial of the relief sought by either petitioner. 21 Accordingly, the Court will grant the deferred portion of the motion, and, as to each 22 petitioner, will include the following conditions in its order of release: 23 (1) Petitioner is to reside and shelter in place at an address to be specified in said 24 order.1 25 (2) Petitioner shall be transported by a person to be specified in said order from 26 27 1 his place of detention to the residence where he will reside and shelter in place.2 2 (3) Pending further order of the Court, petitioner shall not leave the residence 3 where he will shelter in place, except to obtain medical care, to appear at immigration 4 court proceedings, or to obey any order issued by the Department of Homeland Security. 5 (4) Petitioner shall not violate any federal, state, or local law. 6 (5) Petitioner shall comply with the usual conditions of release set forth in ICE's 7 order of own recognizance, and if petitioner becomes subject to a final order of removal, 8 he shall comply with the usual conditions of release set forth in ICE's order of 9 supervision. 10 (6) At the election of DHS and/or ICE, petitioner's whereabouts may be monitored 11 by telephonic and/or electronic and/or GPS monitoring. 12 Additionally, as to Quinteros only, the Court will include a condition prohibiting him 13 from driving. 15 For the reasons stated, the deferred portion of petitioners' motion is hereby 16 GRANTED, as follows: 17 1. To the extent the motion is brought on behalf of petitioners Olvin Said Torres Murillo and Mauricio Ernesto Quinteros Lopez, the motion is hereby GRANTED, and said 18 petitioners shall be released upon the filing of an order setting conditions of release, 19 which order will be issued following each petitioner's filing of a notice setting forth the 20 address at which he shall reside and shelter in place, as well as the name of his 21 transporter. 22 2. Respondents are hereby DIRECTED to show cause, no later than April 28, 23 2020, why, as to Olvin Said Torres Murillo and Mauricio Ernesto Quinteros Lopez, a 24 preliminary injunction should not issue. Petitioners' reply shall be filed no later than 25 seven days after any such response is filed. As of the date the reply is filed, the Court, 26

27 2The name of the transporter of each petitioner is to be provided by petitioners' 1 unless the parties are otherwise advised, will take the matter under submission. 3 4 || Dated: April 14, 2020 . INE M. CHESNEY 5 United States District Judge 6 7 8 9 10 11 12

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