Lopez v. ICE Field Office Director

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 9 Petitioner, CASE NO. C20-1341-RSM 10 v. ORDER ADOPTING REPORT AND RECOMMENDATION AND 12 Respondent.

14 This matter comes before the Court on the Report and Recommendation (“R & R”) of the 15 Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. #11. Plaintiff Daniel De Jesus 16 Lopez, proceeding pro se, seeks release from Immigration and Customs Enforcement (“ICE”) 17 detention under 28 U.S.C. § 2241. Dkt. #1. The R & R recommends denial of Petitioner’s petition 18 for writ of habeas corpus and dismissal. Dkt. #11. Having considered Petitioner’s habeas petition, 19 Petitioner’s Objections, Dkt. #18, and the remainder of the record, the Court approves and adopts 20 the R & R as set forth below. 22 Mr. De Jesus Lopez is a 32-year-old Mexican citizen who entered the United States at an 23 unknown date. See Dkt. #1 at 8, Dkt. #1-1 at 3. Between 2007 and 2010, Petitioner was convicted ORDER ADOPTING REPORT AND 1 of several crimes in the United States, including forgery, carrying a concealed firearm, possession 2 of methamphetamine, robbery, delivery of methamphetamine, and failure to appear. Dkt. #7-2 at 3 ¶ 83. Petitioner was transferred into ICE custody on March 27, 2020 and has remained at the 4 Northwest Detention Center in Tacoma, Washington (“NWIPC”) since that time. Dkt. #1 at 2. 5 Petitioner’s removal is temporarily stayed because his asylum case is pending before the Ninth

6 Circuit. Id.; Dkt. #7-2 at ¶ 87. 7 On September 2, 2020, Mr. De Jesus Lopez filed a petition for writ of habeas corpus in the 8 U.S. District Court for the Western District of Washington, requesting immediate release from 9 detention on the basis that (1) his continued detention without a bond hearing is unlawful; and (2) 10 he faces high risk of severe illness from COVID-19 due to a pre-existing medical condition in 11 violation of his Fifth Amendment rights. Dkt. #1. 12 On September 23, 2020, Petitioner attended a bond hearing pursuant to Aleman Gonzalez 13 v. Barr, 955 F.3d 762 (9th Cir. 2020), to determine if he should be released on bond. Id. at ¶ 88. 14 The immigration judge did not reach the merits of Petitioner’s bond determination and granted a

15 continuance until October 6, 2020 to allow Petitioner to find an attorney and obtain additional 16 evidence. Id. Due to a medical quarantine in Petitioner’s housing unit, his bond hearing was 17 continued. Id. at ¶¶ 89-90. On October 20, 2020, Immigration Judge Tammy L. Fitting (“the IJ”) 18 determined that Petitioner is both a danger to the community and a flight risk, and denied bond 19 and conditional release. Dkt. #10-1 at 1. Petitioner reserved appeal to the Board of Immigration 20 Appeals (“BIA”). Id. 21 On October 29, 2020, Judge Tsuchida issued an R & R recommending denial of 22 Petitioner’s habeas petition, on the basis that (1) Petitioner was afforded a bond hearing; and (2) 23 Petitioner failed to establish that conditions at the NWIPC violate his constitutional rights or that

ORDER ADOPTING REPORT AND 1 he is “peculiarly vulnerable” to the effects of COVID-19. Dkt. #11. On November 6, 2020, 2 Petitioner filed Objections to the R & R. Dkt. #18. 4 A. Legal Standard 5 A district court has jurisdiction to review a Magistrate Judge’s report and recommendation

6 on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge must determine de novo any 7 part of the magistrate judge’s disposition that has been properly objected to.” Id. “A judge of the 8 court may accept, reject, or modify, in whole or in part, the findings or recommendations made by 9 the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the 10 report and recommendation to which specific written objection is made. United States v. Reyna- 11 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 12 Petitioner objects to the R & R on several bases: (1) he was not afforded the opportunity to 13 respond to the Government’s return memorandum; (2) his October 20, 2020 Aleman bond hearing 14 was constitutionally deficient; (3) the R & R erred in its analysis of his Fifth Amendment claims,

15 because it relied on declarations from officials working for the Government—not an independent 16 investigator—regarding conditions at the NWIPC; and (4) the Government and the R & R failed 17 to address Claims 3 and 4 in his habeas petition. The Court will address each argument in turn. 18 B. Response to Government’s Return Memorandum 19 First, Petitioner objects to the R & R on the basis that he was not afforded the chance to 20 respond to the Government’s Return Memorandum and Motion to Dismiss. Dkt. #18 at 1. 21 Pursuant to the September 11, 2020 Order for Return and Status Report in this matter, the 22 Government’s motion to dismiss was noted for November 6, 2020, with Petitioner’s deadline to 23 file a response set for November 2, 2020. Dkt. #5. The R & R in this matter was entered on

ORDER ADOPTING REPORT AND 1 October 29, 2020. Dkt. #11. After the R & R was entered, Petitioner filed several motions dated 2 November 2, 2020, that were timely under the initial case deadlines. See Dkt. #5 at 2. These 3 motions include a request for additional time to respond to the Government’s return memorandum, 4 Dkt. #14, request for appointment of counsel, Dkt. #13, request for an independent investigator, 5 Dkt. #15, and two motions to strike, Dkts. #16, #17. On November 27, 2020, Petitioner filed an

6 emergency motion for release that provides additional information on his claims related to 7 COVID-19 at the NWIPC. Dkt. #19. 8 While Petitioner is correct that the R & R was entered prior to Petitioner’s November 2, 9 2020 response deadline, the district court will now consider, in addition to his Objections, 10 Petitioner’s November 2, 2020 motions and November 27, 2020 filing and attached exhibits. See 11 Dkts. ##13-17, 19. Thus, to the extent Petitioner objects that he was not afforded the opportunity 12 to respond and that Judge Tsuchida failed to consider his motions to strike and motion for an 13 independent investigator, see Dkt. #18 at 2, the district court’s consideration of these filings cures 14 this deficiency. Having considered Petitioner’s arguments and evidence raised in these responsive

15 motions, his Objections, and his November 27, 2020 filing, the Court finds no error in the R & R’s 16 conclusions for the reasons set forth below. 17 C. Bond Hearing 18 Petitioner does not dispute that he was provided a bond hearing on October 20, 2020, but 19 objects that “the protocols and due process set by the higher courts in Singh v. Holder, 638 F.3d 20 1196, 1208 (9th Cir. 2011); and Ngo v. INS, 192 F.3d 390, 398 (3d Cir. 1999) and Aleman were 21 not followed and considered[.]” Dkt. #18 at 3. Petitioner also objects that the IJ failed to consider 22 the recency of his criminal convictions and recent Supreme Court precedent in Ramos v. Louisiana 23 that invalidated his criminal convictions in Oregon state court. Id. (citing 140 S. Ct. 1390 (2020)).

ORDER ADOPTING REPORT AND 1 Furthermore, Petitioner objects on the basis that he submitted numerous exhibits demonstrating 2 his commitment to being a law-abiding member of society, and the IJ denying him bond shows 3 that the IJ “prejudged petitioner, was bias[ed], did not consider the many more factors that 4 petitioner submitted” and that “[t]he hearing was a sham.” Id. at 4. 5 Notwithstanding Petitioner’s objections, a district court lacks jurisdiction to review an IJ’s

6 bond decision until the petitioner has exhausted his administrative remedies. See Rojas–Garcia v. 7 Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (a petitioner “must exhaust administrative remedies 8 before raising . . . constitutional claims in a habeas petition when those claims are reviewable by 9 the BIA on appeal”); see also Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) 10 (“[Petitioner] pursued habeas review of the IJ’s adverse bond determination before appealing to 11 the BIA. This short cut was improper.”). Here, Petitioner’s appeal is pending before the BIA. See 12 Dkt. #10-1 (setting deadline to appeal for November 19, 2020). Accordingly, now that Petitioner 13 has been provided a bond hearing, the Court finds no error in the R & R’s conclusion that dismissal 14 is appropriate given that “there is no basis for the Court to order the government to provide a bond

15 hearing at this point . . . .” Dkt. #11 at 3. 16 D. Fifth Amendment Violations based on COVID-19 Risk 17 Next, the Court considers Petitioner’s argument that immediate release from NWIPC is 18 warranted to protect his Fifth Amendment rights due to the serious risk of harm he faces from 19 COVID-19. See Dkt. #1 at 10-15. Considering the complete record before the Court, including 20 Petitioner’s November 2, 2020 responsive motions, his November 6, 2020 Objections, and his 21 November 27, 2020 motion for release due to his COVID-19 risk, the Court finds no error in the 22 R & R’s conclusion that Petitioner has failed to demonstrate a basis for release from NWIPC based 23 on the COVID-19 pandemic.

ORDER ADOPTING REPORT AND 1 At issue is whether the conditions at the NWIPC violate Petitioner’s Fifth Amendment1 2 substantive due process rights to (i) reasonably safe conditions of confinement and (ii) conditions 3 that do not amount to punishment. In recommending denial of relief, the R & R found Petitioner’s 4 arguments that detention centers are inherently unsafe during the COVID-19 pandemic and that 5 he should be released based on a positive tuberculosis (“TB”) test in 2011 were insufficient to

6 demonstrate Fifth Amendment violations. Considering the entirety of the record, the Court agrees 7 with the R & R’s conclusion. 8 i. Right to Reasonably Safe Conditions 9 “[W]hen the State takes a person into its custody and holds him there against his will, the 10 Constitution imposes upon it a corresponding duty to assume some responsibility for his safety 11 and general well-being.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 199– 12 200 (1989).2 The government thus violates the Due Process Clause if it fails to provide civil 13 detainees with “food, clothing, shelter, medical care, and reasonable safety.” Id. at 200. “The 14 Ninth Circuit has analyzed such conditions of confinement claims under an objective deliberate

15 indifference standard.” Pimentel-Estrada v. Barr (“Pimentel-Estrada II”), 464 F. Supp. 3d 1225, 16 1234 (W.D. Wash.2020) (citing Castro v. Cnty. of L.A., 833 F.3d 1060, 1071 (9th Cir. 2016) (en 17 banc) (adopting objective deliberate indifference standard based on Kingsley v. Hendrickson, 576 18 U.S. 389, 135 S. Ct. 2446 (2015), to evaluate failure to protect claim brought by pretrial detainee)). 19 To demonstrate objective deliberate indifference, Petitioner must show: 20 (i) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 21

22 1 As a federal civil detainee, Petitioner is protected by the Fifth Amendment. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). 23 2 In DeShaney, the Supreme Court analyzed the petitioners’ rights under the Fourteenth Amendment. See DeShaney, 489 U.S. at 194–95. Fifth Amendment due process claims and Fourteenth Amendment due process claims are analyzed in the same way. See Paul v. Davis, 424 U.S. 693, 702 n.3 (1976). ORDER ADOPTING REPORT AND 1 (ii) Those conditions put the plaintiff at substantial risk of suffering serious harm;

2 (iii) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the 3 high degree of risk involved—making the consequences of the defendant’s conduct obvious; and 4 (iv) By not taking such measures, the defendant caused the plaintiff’s injuries. 5 Castro, 833 F.3d at 1071. With respect to the third element, Respondents’ conduct must be 6 “objectively unreasonable, a test that will necessarily ‘turn on the facts and circumstances of each 7 particular case.’” Id. (quoting Kingsley, 135 S. Ct. at 2473) (alterations and internal quotation 8 marks omitted). Objective unreasonableness requires “more than negligence but less than 9 subjective intent—something akin to reckless disregard.” Id. (quoted source omitted). 10 None of the documents filed after entry of the R & R, including Petitioner’s November 2, 11 2020 motions, his Objections, and the November 27, 2020 motion for emergency relief, 12 demonstrate error in the R & R’s conclusion that Petitioner has failed to establish a substantial risk 13 of serious harm due to current conditions at NWIPC. As an initial matter, none of these filings 14 meaningfully rebut the Bostock and Malakhova declarations, which describe the various measures 15 NWIPC has implemented to prevent the introduction of COVID-19 into the general population 16 and to prevent its spread between units. See Dkts. #7-1, #7-2. Instead, Petitioner moved to appoint 17 an independent investigator, Dkt. #15, and to strike both declarations on the basis that Malakhova 18 and Bostock are both officials working for the Government and therefore have conflicts of interest 19 “that can be unfairly prejudicial to the partiality determination and prejudicial to the outcome of 20 the present case.” Dkt. #16 at ¶ 2; see also Dkt. #17. For the reasons set forth below, the Court 21 finds no basis for granting these motions. 22 Regarding his Motions to Strike, Dkts. ##16, 17, Petitioner cites to Fed. R. Civ. P. 12(f) 23 and Fed. R. Evid. 403 as bases for striking the declarations. However, neither rule is applicable ORDER ADOPTING REPORT AND 1 here. Rule 12 provides that a court may strike from a pleading an insufficient defense or 2 “redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Rule 403 3 provides that relevant evidence may be excluded if its probative value is “substantially outweighed 4 by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the 5 jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid.

6 403. Here, Petitioner argues that the declarations should be stricken because courts assessing 7 conditions at the NWIPC have identified inconsistencies between declarations from detainees and 8 declarations from ICE employees. See Dkt. #16 at ¶ 3, Dkt. #17 at ¶ 3 (citing Dawson v. Asher, 9 No. C20-0409JLR-MAT, 2020 WL 1704324, at *5 (W.D. Wash. Apr. 8, 2020). However, while 10 the Dawson court acknowledged that “parties filed contrasting evidence regarding detainees’ 11 ability to engage in physical distancing” and the specific conditions at the NWIPC, id. at *6, it did 12 not strike any evidence based on conflicting facts. The Court finds no basis to strike the 13 declarations due to the possibility of conflicting evidence and therefore DENIES both motions. 14 Turning to Petitioner’s Motion to Appoint an Independent Investigator, Dkt. #15, the Court

15 does not find sufficient need to justify an appointment. In support of his motion, Petitioner cites 16 to a recent order from the U.S. District Court for the Central District of California in Roman v. 17 Wolf, which is a class action lawsuit of detainees challenging conditions at the Adelanto 18 Immigration and Customs Processing Center in Adelanto, California. See Dkt. #18 at 2. The order 19 chastises the Government for lack of candor and “tacit acknowledgment that the housing 20 information it provided to the Court and Class Counsel was not necessarily accurate” and 21 contemplates appointment of a Special Master. Roman v. Wolf, No. ED CV 20-00768 TJH, 2020 22 WL 6107069, at *2 (C.D. Cal. Oct. 15, 2020). While the Roman order raises a troubling issue, the 23 court in that matter admitted “[i]t is rare that a Court is presented with direct evidence of

ORDER ADOPTING REPORT AND 1 dishonesty.” Here, Petitioner has not presented the Court with any evidence of dishonesty or lack 2 of candor by the Government regarding conditions at the NWIPC, nor is the Court aware of such 3 issues related to reporting of conditions at the NWIPC. On the contrary, courts in this district have 4 authorized factual discovery of on-site conditions at the facility rather than resorting to the drastic 5 remedy of appointing a Special Master or independent investigator. See, e.g., Castañeda Juarez

6 v. Asher, No. C20-0700JLR (November 24, 2020, W.D. Wash), Dkt. #161 (Order granting 7 discovery through on-site inspection of NWIPC). For these reasons, Petitioner’s motion to appoint 8 an independent investigator, Dkt. #15, is DENIED. 9 Plaintiff’s Objections and November 27, 2020 motion likewise provide no meaningful 10 rebuttal of the Malakhova and Bostock Declarations. His objections that the R & R failed to 11 consider his motions to strike are unavailing, given that the Court has now considered and denied 12 these motions as set forth above. See Dkt. #18 at 2. Petitioner further objects that the R & R failed 13 to consider “that the reasons that petition was tested . . . was not because of the Respondents’ own 14 goodwill – but because the Respondent exposed petitioner and many other to the dangerous virus

15 and had to shut down petitioner’s unit numerous [] times because of possible infections and an 16 outbreak.” Id. at 3. As Respondents explain, Petitioner was tested for COVID-19 on October 2, 17 2020 following one staff member’s positive test. See Dkt. #7-1 at ¶¶ 58-59. In his November 27, 18 2020 emergency motion, Petitioner also attaches two exhibits: a newspaper article reporting 19 nationwide COVID-19 cases and a report that a third staff member at NWIPC has tested positive. 20 See Dkts. #19-2, #19-4. The Court does not find these reports of positive tests from NWIPC staff 21 sufficient, on their own, to indicate that general conditions at NWIPC pose a substantial risk of 22 serious harm to Petitioner. 23 In addition to the general conditions at the NWIPC, the Court must also consider the

ORDER ADOPTING REPORT AND 1 individual degree of risk posed to Petitioner. While he insists that his 2011 TB diagnosis places 2 him at heightened risk of severe illness, Dkt. #1 at 10, the R & R correctly observed that Petitioner 3 presents no evidence of a current TB diagnosis. Dkt. #11 at 2. Indeed, a letter dated June 23, 2020 4 from the Northwest Immigrant Rights Project attached to Petitioner’s November 27, 2020 motion 5 clarifies that his TB is inactive. See Dkt. #19-1 at 30. Furthermore, as Petitioner’s health records

6 indicate, he completed a treatment regimen for latent TB on January 12, 2012. Dkt. #1-1 at 61- 7 62. Respondents also administered a chest x-ray on March 27, 2020 as a precaution and found the 8 x-ray negative for signs of TB. Dkt. #7-1 at ¶ 12. While Petitioner claims that his past TB diagnosis 9 places him in danger of serious illness in the event he contracts COVID-19, the U.S. Centers for 10 Disease Control and Prevention (“CDC”) has not identified latent TB as a condition increasing 11 one’s risk of severe illness. See U.S. Ctrs. for Disease Control and Prevention, Coronavirus 12 Disease 2019-COVID, People with Certain Medical Conditions, 13 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical- 14 conditions.html (last updated Nov. 2, 2020) (“CDC Guidelines”).3

15 For these reasons, having considered Petitioner’s medical condition and the precautions 16 Respondents have taken to prevent the introduction of COVID-19 into the general population and 17 to prevent its spread between units should it be introduced, the Court concludes that Petitioner has 18 not met his burden of establishing that he faces a substantial risk of serious harm due to the current 19 conditions of his detention. Because Petitioner has not established this essential element of his 20 Fifth Amendment reasonable safety claim, the Court need not consider the remaining elements. 21 // 22

3 Pursuant to Fed. R. Evid. 201(c)(1), the Court takes judicial notice sua sponte of public records related 23 to the COVID-19 health crisis, including documents available through government agency websites. Gustavson v. Wrigley Sales Co., No. 12-CV-01861-LHK, 2014 WL 60197, at *3 (N.D. Cal. Jan. 7, 2014). ORDER ADOPTING REPORT AND 1 ii. Conditions Amounting to Punishment 2 To evaluate the constitutionality of a pretrial detention condition under the Fifth 3 Amendment, a district court must determine whether those conditions “amount to punishment of 4 the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979); see also Kingsley, 135 S. Ct. at 2473–74 5 (2015). Punishment may be shown through an express intent to punish or a restriction or condition

6 that “is not reasonably related to a legitimate governmental objective.” Bell, 441 U.S. at 539; see 7 also Kingsley, 135 S. Ct. at 2473–74 (clarifying that “a pretrial detainee can prevail by providing 8 only objective evidence that the challenged governmental action is not rationally related to a 9 legitimate governmental objective or that it is excessive in relation to that purpose”). The Supreme 10 Court has recognized a legitimate government interest in ensuring that noncitizens appear for their 11 removal or deportation proceedings and protecting the community from harm. See Jennings v. 12 Rodriguez, --- U.S. ---, 138 S. Ct. 830, 836 (2018). Given that the Court cannot conclude that the 13 current conditions of Petitioner’s detention place him at substantial risk of serious harm, it cannot 14 conclude that Petitioner’s detention amounts to governmental action “not rationally related to a

15 legitimate governmental objective or that is excessive in relation to that purpose.” Kingsley, 135 16 S. Ct. at 2473–74 (2015). 17 E. Claims Three and Four in Habeas Petition 18 Finally, Petitioner objects that the Government and the R & R failed to address Claims 3 19 and 4 in his habeas petition. Claims 3 states that “Petitioner is entitled to a constitutional due 20 process procedure and trial before conviction and removal of freedom.” Dkt. #1 at 16. Petitioner 21 also argues that his detention and possible deportation entitle him “to a due process hearing and 22 jury trial regarding his continued incarceration and deportation” and requests that “the Court issues 23 orders that does substantial justice.” Id. at 19. As an initial matter, the Court finds Petitioner’s

ORDER ADOPTING REPORT AND 1 due process-related claims duplicative of his Fifth Amendment claims, which were considered and 2 addressed as set forth above. See § III(D), supra. Petitioner also raises Fourth, Sixth, and Eighth 3 Amendment claims, which apply to criminal cases and are therefore inapplicable here. See id. at 4 17. Lastly, to the extent Petitioner requests a jury trial related to his immigration proceedings 5 pursuant to the Seventh Amendment, the Court finds no cognizable basis to grant such relief.

6 Finally, Petitioner’s fourth claim reads, “In a quasi criminal proceeding, Petitioner is 7 entitled to assistance of counsel where incarceration, freedom, and deportation punishment as 8 penalty is at stake.” Dkt. #1 at 19. Claim 4 appears duplicative of his motion to appoint counsel, 9 which the Court addressed in its October 13, 2020 order. See Dkt. #8 at 1 (“There is no 10 constitutional right to appointment of counsel in § 2241 habeas actions; however, the Court may 11 exercise its discretion to appoint counsel for a financially eligible individual where the ‘interests 12 of justice so require.’ . . . . Having carefully reviewed the record and considered both factors, the 13 Court concludes that the interests of justice do not require the appointment of counsel in this case.”) 14 (quoting 18 U.S.C. § 3006A(a)(2)(B)). While Petitioner raises this issue again in his Objections

15 and in a successive motion to appoint counsel, Dkt. #13, the Court’s previous determination on 16 this matter does not warrant further consideration. 17 For these reasons, given that Claims 3 and 4 are either duplicative of other claims or 18 motions or without legal basis, the Court finds no error in the R & R’s treatment of these claims. 20 Having reviewed the Report and Recommendation of the Honorable Brian A. Tsuchida, 21 United States Magistrate Judge, and the balance of the record, and Court finds and ORDERS: 22 (1) Petitioner’s Motion to Request an Independent Investigator, Dkt. #15, and Petitioner’s 23 Motions to Strike and Disqualify Government’s Declarations, Dkts. #16, #17, are DENIED.

ORDER ADOPTING REPORT AND 1 (2) The Report and Recommendation, Dkt. #11, is ADOPTED. 2 (3) Petitioner’s habeas petition, Dkt. #1, is DENIED and this case is DISMISSED with 3 prejudice. 4 (4) All remaining pending motions in this matter are DENIED as moot. 5 (5) The Clerk is directed to send copies of this Order to the parties.

6 7 Dated this 3rd day of December, 2020. 8 9 A 10 RICARDO S. MARTINEZ 11 CHIEF UNITED STATES DISTRICT JUDGE

13 14 15 16 17 18 19 20 21 22 23 ORDER ADOPTING REPORT AND