Lopez-Marroquin v. Barr

• Court: District Court, S.D. California
• Decided: April 17, 2020
• Docket: 3:20-cv-00682
• Status: Unknown

Opinion

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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 RICARDO A. LOPEZ-MARROQUIN, CASE NO. 20cv682-LAB (MDD)

Petitioner, 12 ORDER DISMISSING PETITION FOR vs. WRIT OF HABEAS CORPUS 13

WILLIAM P. BARR, 14

Defendant. 15

16 Petitioner Ricardo Lopez-Marroquin filed a Petition for Writ of Habeas Corpus under 17 28 U.S.C. § 2241 requesting release from the Otay Mesa Detention Center where he is 18 being held pending appeal of the denial of his asylum claim. For the reasons below, the 19 petition is DISMISSED.1 20 BACKGROUND 21 1. Procedural History 22 Petitioner is a Salvadoran national who has lived in the United States as a permanent 23 resident for more than twenty years. Certified Administrative Record (“AR”) 150-51, 2731. 24 After he suffered multiple criminal convictions in this country, the Department of Homeland 25 1 The Court finds this matter suitable for disposition without oral argument or hearing. See 26 Yeaman v. United States, 326 F.2d 293, 294 (9th Cir. 1963) (“When the merits of [a habeas] application can be determined on the record before the court, a hearing is not required nor 27 is the presence of the petitioner necessary.”). In its scheduling order, the Court invited the 28 parties to show that a hearing was necessary, but neither party did so. See Dkt. 3. 1 Security (“DHS”) initiated removal proceedings against him in 2012. AR 2729, 2731. 2 Petitioner then applied for asylum. In 2018, an immigration judge denied his application and 3 ordered him removed, finding that he was statutorily ineligible for asylum in light of, among 4 other things, his “particularly serious” criminal history, which included convictions for vehicle 5 theft, multiple petty thefts, and driving under the influence. AR 127-29, 886-89, 891-905. 6 After the Board of Immigration of Appeals (“BIA”) denied his administrative appeal, 7 (AR 2-6), Petitioner sought review from the Ninth Circuit, where his case remains pending. 8 On March 30, 2020, he filed an “Emergency Motion” under the All Writs Act, asking the Ninth 9 Circuit to “remand his case to the [BIA] with an order for his immediate release from 10 immigration detention.” Petition, Dkt. 1-2, at 1. The basis for this emergency request is the 11 COVID-19 pandemic, which Petitioner argues is particularly acute in detention centers like 12 the one where he is currently housed. 13 A panel of the Ninth Circuit—over the dissent of Judge Callahan—construed 14 Petitioner’s request as a petition for writ of habeas corpus under 28 U.S.C. § 2241 and 15 remanded it for this Court to consider “expeditiously.” Dkt. 1. 16 2. Otay Mesa Detention Center 17 Petitioner is currently detained at Otay Mesa Detention Center (“OMDC”) in Otay 18 Mesa, California. As of April 15, 2020, there were 25 confirmed cases of COVID-19 at 19 OMDC, of which 18 are ICE detainees and 7 are U.S. Marshal detainees. See Beckhelm 20 Decl., Dkt. 7-1, at ¶ 15. 21 In response to the growing threat posed by COVID-19, OMDC claims to have taken 22 significant steps to prevent and slow the spread of the virus. Overall, OMDC, which “has a 23 population within approved capacity and is not overcrowded[,] . . . has increased sanitation 24 frequency and provides sanitation supplies,” including “disinfectant spray, hand sanitizer, 25 and soap in every housing unit at the jail”; “disinfectants to staff and cleaning crews”; and 26 “hand sanitizer to detainees and staff.” Id. at ¶¶ 16-17. Staff and detainees are encouraged 27 to use the materials provided “often and liberally.” Id. at ¶ 17. Further, housing units are 28 cleaned and disinfected between shifts. Id. OMDC “has [also] limited professional visits to 1 noncontact visits and suspended in person social visitation and facility tours.” Id. at ¶ 18. 2 Staff and vendors are screened upon entering the facility, “including [by taking] body 3 temperatures.” Id. at ¶ 19. ICE Health Services Corps (“IHSC”) medical staff provides 4 facility employees and detainees at OMDC “education on COVID-19,” including “the 5 importance of hand washing and hand hygiene, covering coughs with the elbow instead of 6 with hands, and requesting to seek medical care if they feel ill.” Id. at ¶ 21. 7 Detainees at OMDC are screened upon intake by an IHSC medical provider. Id. at 8 ¶ 10. As part of that screening, “detainees are assessed for fever and respiratory illness, 9 are asked to confirm if they had close contact with a person with laboratory-confirmed 10 COVID-19 in the past 14 days, and whether they have traveled from area(s) with sustained 11 community transmission in the past two weeks.” Id. at ¶ 11. Staff then determine whether 12 to monitor or isolate the detainee, and “detainees who present symptoms compatible with 13 COVID-19 [are] placed in isolation,” where they are tested. Id. at ¶ 12. Individuals who test 14 positive “remain isolated and [are] treated,” and “[i]n case of any clinical deterioration, . . . 15 referred to a local hospital.” Id. In instances where a detainee is known to have been 16 exposed to an individual with a confirmed case of COVID-19, OMDC follows a procedure 17 known as “cohorting”: 18 Cohorting is an infection-prevention strategy which involves housing detainees together who were exposed to a person with 19 an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because 20 individuals with these and other communicable diseases can be 21 contagious before they develop symptoms and can serve as undetected source patients. Those that show onset of fever 22 and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14-day 23 incubation period completes with no new cases. Per ICE policy, 24 detainees diagnosed with any communicable disease who require isolation are place[d] in an appropriate setting in 25 accordance with CDC or state and local health department guidelines. Id. at ¶ 13. 26

27 Unsatisfied with these measures, Petitioner describes OMDC’s COVID-19 response 28 as inadequate. Based largely on a visit by “attorneys and legal staff . . . during the week of 1 March 19, 2020”—nearly a month ago—Petitioner alleges that the detention center’s 2 precautions “fall short of CDC recommendations.” Petition at 7; see also Rios Decl. at ¶ 7. 3 On the date of the attorney visit, for example, “no preventative health screening measures 4 of any kind were in place, [and] visitors were not asked whether they had any symptoms of 5 COVID-19, nor was their temperature taken.” Id. More generally, Petitioner alleges that 6 OMDC’s medical facilities are “retrograde, understaffed and under-resourced,” and he 7 points to a list of detainees who have suffered poor health outcomes (unrelated to COVID- 8 19) as a result of their treatment at OMDC. Petition at 8. 9 3. Petitioner’s Personal Circumstances 10 Petitioner is a 39-year-old male. He suffers from “severe mental health challenges 11 including schizophrenia and bipolar disorder,” (Petition at 14), but otherwise does not allege 12 any underlying health conditions that would put him at an increased risk from COVID-19. 13 On April 10, the Court expressed concerns about ordering the release of a detainee 14 without a suitable release plan in place, and it ordered Petitioner to submit a declaration 15 describing how he planned to proceed if released. In response, he states that, if released, 16 he will initially reside with his father, Ricardo Lopez Sr., in Los Angeles. See Chertoff Decl., 17 Dkt. 4, at ¶ 3. He will be transported to Los Angeles by a close family friend, Fabricio Mejia. 18 Id. at ¶ 4. Due to space constraints, the family is seeking to rent a room for Petitioner at the 19 home of a close family friend. Id. at ¶ 5. Petitioner’s sister and his counsel will check on 20 him regularly and ensure he has access to any needed mental health treatment. Id. at 21 ¶¶ 6, 7. 22 ANALYSIS 23 To succeed on a habeas petition, a petitioner must show that he is “in custody in 24 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241. 25 Because Petitioner has failed to exhaust his administrative remedies and because his 26 custody does not violate federal law, the Court concludes that his petition must be 27 dismissed. 28 / / / 1 1. Petitioner Has Failed to Exhaust Administrative Remedies 2 The Ninth Circuit “require[s], as a prudential matter, that habeas petitioners exhaust 3 available judicial and administrative remedies before seeking relief under § 2241.” Castro- 4 Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds by 5 Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006); see also Rojas-Garcia v. Ashcroft, 339 6 F.3d 814, 819 (9th Cir. 2003) (a “petitioner must exhaust administrative remedies before 7 raising the constitutional claims in a habeas petition when those claims are reviewable by 8 the BIA on appeal”). Specifically: 9 Courts may require prudential exhaustion if (1) agency expertise makes agency consideration necessary to generate a proper 10 record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the 11 administrative scheme; and (3) administrative review is likely to 12 allow the agency to correct its own mistakes and to preclude the 13 n eed for judicial review. 14 Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). “[P]rudential limits, like jurisdictional 15 limits and limits on venue, are ordinarily not optional.” Id. (quoting Castro-Cortez, 239 F.3d 16 at 1047). 17 Petitioner sought bond hearings in July and December 2017, but his counsel 18 withdrew requests for a hearing on both occasions. See Respondent’s Supplemental Brief 19 (“Supp. Br.”), Dkt. 7, Ex. A at ¶ 24. There is no indication in his petition that he has recently 20 requested a bond hearing, which would be required to exhaust his administrative remedies 21 in this context. See Franco-Gonzalez v. Holder, 2013 WL 3674492, *10-14 (C.D. Cal. 2013) 22 (describing the bond process under the INA). 23 Applied here, the Puga factors weigh in favor of requiring exhaustion. As Respondent 24 points out, in light of Petitioner’s mental health concerns, the agency would be in a better 25 position to evaluate whether release is appropriate, “especially in consideration of 26 [Petitioner’s] daily needs, his ability to care for himself, persons able to assist him, and 27 current community pandemic concerns.” Supp. Br., at 10. Further, relaxation of the 28 requirement here would encourage “deliberate bypass of the administrative scheme” by 1 opening up habeas review to all detainees, regardless of their underlying heath conditions 2 or whether they are uniquely susceptible to COVID-19. Finally, administrative review would 3 likely allow the agency to correct its own mistakes and preclude the need for judicial review. 4 This conclusion is not merely hypothetical—it is supported by the fact that the agency has 5 released (and continues to release) detainees from custody who are at heightened risk from 6 COVID-19, which counsels against the Court providing an end-around for detainees seeking 7 to bypass that administrative system. See, e.g., Sagastume v. Archambeault, 20cv658-LAB 8 (S.D. Cal.), Dkt. 26 at ¶ 5 (voluntary dismissal of a petition for writ of habeas corpus following 9 the release from Otay Mesa of a petitioner with underlying health conditions). 10 Other courts considering habeas challenges in recent weeks have found that the 11 COVID-19 pandemic presents an exigency that excuses the exhaustion requirement. See, 12 e.g., Doe v. Barr, 2020 WL 1820667, at *8 (N.D. Cal. 2020); Perez v. Wolf, 2020 WL 13 1865303, at *6 (N.D. Cal. 2020). To be sure, a petitioner need not exhaust administrative 14 remedies where those remedies “are inadequate or not efficacious, pursuit of administrative 15 remedies would be a futile gesture, irreparable injury will result, or the administrative 16 proceedings would be void.” S.E.C. v. G.C. George Sec., Inc., 637 F.2d 685, 688 n.4 (9th 17 Cir. 1981). Given the amount of time needed to complete a BIA appeal, detainees with 18 underlying health conditions may suffer “irreparable injury” if forced to pursue an 19 administrative appeal before resorting to habeas relief. But, for reasons discussed in more 20 detail below, Petitioner would not. Nothing in his petition indicates that he is at greater risk 21 of contracting, or suffering complications from, COVID-19 than the average detainee. 22 Because Petitioner has failed to exhaust administrative remedies—and nothing in his 23 petition suggests he is excused from doing so—his petition must be dismissed. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 2. Petitioner’s Detention is Lawful 2 Respondent next argues that even if Petitioner were excused from exhausting 3 administrative remedies, his petition must be dismissed because his detention is lawful.2 4 The Court agrees. 5 When the government detains a person pursuant to an immigration violation, the 6 person is considered a civil detainee. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 7 To evaluate the constitutionality of a civil detention condition under the Fifth Amendment, a 8 district court must determine whether those conditions “amount to punishment of the 9 detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979); see also Kingsley v. Hendrickson, --- 10 U.S. ---, 135 S. Ct. 2466, 2473-74 (2015). Punishment may be shown by an express intent 11 to punish or by a restriction or condition that “is not reasonably related to a legitimate 12 governmental objective.” Bell, 441 U.S. at 539; see also Kingsley, 135 S. Ct. at 2473-74 13 (clarifying that “a pretrial detainee can prevail by providing only objective evidence that the 14 challenged governmental action is not rationally related to a legitimate governmental 15 objective or that it is excessive in relation to that purpose”). In addition, “when the State 16 takes a person into its custody and holds him there against his will, the Constitution imposes 17 upon it a corresponding duty to assume some responsibility for his safety and general well- 18 being.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989). 19 The government violates the Due Process Clause, for example, if it fails to provide civil 20 detainees with “food, clothing, shelter, medical care, and reasonable safety.” Id. at 200. In 21 the context of a Due Process Clause failure-to-protect claim, the Ninth Circuit has made 22 clear that “the defendant’s conduct must be objectively unreasonable, a test that will 23 necessarily ‘turn on the facts and circumstances of each particular case.’” Castro v. Cty. of 24 L.A., 833 F.3d 1060, 1071 (9th Cir. 2016) (quoting Kingsley, 135 S. Ct. at 2473) (alterations 25 and internal quotation marks omitted). 26 2 Respondent also argues that a habeas petition is an improper vehicle to raise a “conditions 27 of confinement” claim. The Court rejects this argument for the reasons set out in Habibi v. 28 Barr, WL 1864642, at *2 n.2 (S.D. Cal. 2020) 1 Here, Petitioner hasn’t alleged or presented evidence that the government acted with 2 an “express intent” to punish him. Nor does he dispute that preventing detained aliens from 3 absconding and ensuring that they appear for removal proceedings is a legitimate 4 governmental objective. See Jennings v. Rodriguez, --- U.S. ---, 138 S. Ct. 830, 836 (2018); 5 Demore v. Kim, 538 U.S. 510, 520-22 (2003); Zadvydas, 533 U.S. at 690-91. He may 6 therefore succeed on his Fifth Amendment claim only if his confinement is excessive in 7 relation to the legitimate governmental objective, see Kingsley, 135 S. Ct. at 2473-74, or if 8 Respondent fails to reasonably provide for Petitioner’s safety. See DeShaney, 489 U.S. at 9 200. Because these two questions bleed over in this context, the Court considers them 10 together. 11 First, under normal circumstances, Petitioner’s detention is certainly reasonable. The 12 Supreme Court has recognized that the detention of individuals pending removal 13 proceedings is rationally related to the legitimate governmental interest of ensuring their 14 appearance for their deportation proceedings and preventing danger to the 15 community. See Zadvydas, 533 U.S. at 690. This is especially true in the Petitioner’s case 16 because he has a “lengthy criminal history in the United States and a history of failing to 17 appear for his scheduled court hearings.” See Supp. Br. at 3; see also Supp. Br., Ex. C. 18 (Petitioner’s FBI Rap Sheet). Indeed, because of Petitioner’s status as a felon, Respondent 19 is prohibited by statute from releasing him unless the release is “necessary” for witness- 20 protection purposes and Petitioner demonstrates that he will “not pose a danger to the safety 21 of other persons or of property and is likely to appear for any scheduled proceeding.” 22 8 U.S.C. § 1226(c)(2). 23 The question, then, is whether the COVID-19 public health crisis alters this calculus. 24 In the Court’s judgment, it doesn’t. On the evidence presented, Petitioner’s confinement is 25 not “excessive” because he does not suffer from any health conditions that put him at an 26 increased risk of severe illness or death as a result of contracting COVID-19. While the 27 Court acknowledges that Petitioner suffers from schizophrenia and bipolar disorder—and 28 these mental disorders may make his subjective experience of detention more unpleasant— 1 Petitioner hasn’t alleged or offered evidence that these mental illnesses make him more 2 susceptible to COVID-19 or would increase the severity of his illness if he were to contract 3 the virus. By all accounts, Petitioner is a physically healthy, 39-year-old man who meets 4 none of the COVID-19 risk factors set out by the Centers for Disease Control. See “Groups 5 at Higher Risk for Severe Illness,” CDC, https://www.cdc.gov/coronavirus/2019-ncov/need- 6 extra-precautions/groups-at-higher-risk.html (April 15, 2020) (identifying those at highest 7 risk of suffering from severe and possibly fatal forms of the disease to include the elderly 8 (people ages 65 and older) and people with certain conditions, including chronic lung 9 disease or moderate to severe asthma; serious heart conditions; severe obesity; diabetes; 10 chronic kidney disease; liver disease; and those who are immunocompromised from 11 conditions such as chemotherapy, smoking, transplants, HIV/AIDs, or the use of immune 12 weakening medications). 13 Nor has Petitioner demonstrated that his “condition of confinement [at OMDC] is sure 14 or very likely to cause serious illness and needless suffering” for the typical inmate without 15 underlying health problems. Helling v. McKinney, 509 U.S. 25, 33 (1993). Even in the best 16 of times, “[r]unning a prison is an inordinately difficult undertaking that requires expertise, 17 planning, and the commitment of resources . . . . Prison administration is, moreover, a task 18 that has been committed to the responsibility of [the legislative and executive] branches, 19 and separation of powers concerns counsel a policy of judicial restraint.” Turner v. Safley, 20 482 U.S. 78, 84–85 (1987). According to Respondent, the administration at OMDC has 21 taken extensive measures to prevent and limit the spread of COVID-19. Among other 22 things, the facility has halted social visitations and increased the frequency of cleanings, 23 with each housing unit being cleaned and disinfected between shifts. See Beckhelm Decl. 24 at ¶¶ 17-18. Medical providers screen new detainees upon admission, and those who 25 “present symptoms compatible with COVID-19 [are] placed in isolation.” Id. at ¶ 12. For 26 detainees who are exposed to someone with COVID-19, OMDC uses the process of 27 “cohorting,” in which all detainees who were similarly exposed are housed together for a 28 minimum of 14 days and are tested daily. Id. at ¶ 13. Although Petitioner alleges that 1 OMDC’s procedures are “inadequate” and that more could be done,3 this, of course, is 2 always the case. See Reply, Dkt. 1-4, at 7. What Petitioner has failed to demonstrate is 3 that Respondent’s actions are “objectively unreasonable,” which is the required standard. 4 See Kingsley, 135 S. Ct. at 2473. 5 Paradoxically to Petitioner’s arguments, his mental health issues may in fact counsel 6 in favor of continuing his detention during the COVID-19 pandemic. The appellate record 7 reflects that he “lacks insight about his mental illness and his mental-health needs.” AR 8 803. Petitioner even acknowledges that doctors have told him he needs medication, but he 9 does not understand the purpose and impact of his medication, (AR 801), and he cannot 10 reliably administer his own mental health care. AR 457:17-22. Therefore, unlike in other 11 cases where courts have found that a petitioner would be better able to protect themselves 12 from COVID-19 in their own homes, the Court finds that Petitioner’s health would be better 13 protected in detention than outside of it. 14 In sum, the Court does not find that Petitioner’s detention is constitutionally deficient, 15 especially absent any health conditions that set him apart from the detained population as 16 a whole. As Judge Callahan noted in dissent from the Ninth Circuit’s Order, “Lopez is a 17 generic detainee, in that he claims neither to have contracted the virus nor to suffer from 18 any underlying health issues placing him at greater risk than anyone else in Government 19 custody. Lopez’s motion, then, is really just the camel’s nose under the tent. If he’s entitled 20 to relief, then who isn’t?” Dkt. 1 at 4. The Court agrees with Judge Callahan’s observations, 21 and finds that Petitioner’s continued detention violates neither “the Constitution or laws or 22 treaties of the United States.” 28 U.S.C. § 2241. 23 / / / 24

25 3 Again, many of Petitioner’s allegations of improper practices at OMDC are based on a visit made to the facility nearly one month ago. See Petition at 7 (“Attorneys and legal staff 26 visiting Otay Mesa during the week of March 19, 2020 have reported COVID-19 precautions at the facility that falls short of CDC recommendations.”). In contrast to the substantial 27 evidence Respondents have put forward regarding the precautions that are now being 28 taken, this has little probative value regarding the risk of future harm to inmates. 1 CONCLUSION 2 Because Petitioner has not shown that he is entitled to habeas relief, his petition is 3 || DISMISSED. The clerk is directed to enter judgment accordingly. 4 Respondent's motion to lodge Petitioner's medical records under seal, (Dkt. 8), is 5 || GRANTED. See Heldt v. Guardian Life Ins. Co. of Am., 2018 WL 5920029, at *2 (S.D. Cal. 6 || 2018) (“Documents containing specific medical information may be filed under seal.” . . . 7 || “The need to protect medical privacy qualifies as a ‘compelling reason’ to seal documents’). 8 IT IS SO ORDERED. 9 || Dated: April 17, 2020 (am / Af. (Buywy 10 HONORABLE LARRY ALAN BURNS 44 Chief United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28