1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ELSY VERONICA DEL CID Case No.: 3:20-cv-00744-WQH-AGS QUIJADA; JOSE HERNANDEZ 11 HERNANDEZ; SERGIO JAIME ORDER 12 LOPEZ; and FARZANEH RAMENAZI, 13 Petitioners, 14 v. 15 CHAD T. WOLF, Acting 16 Secretary of Homeland Security; 17 MATTHEW T. ALBENCE, Deputy Director and Senior 18 Official Performing Duties of the 19 Director of U.S. Immigration and Customs Enforcement; 20 GREGORY J. 21 ARCHAMBEAULT, San Diego Field Office Director, Immigration 22 and Customs Enforcement; 23 JAMES DOBSON, Otay Mesa Detention Center Officer in 24 Charge, Immigration and Customs 25 Enforcement; CHRISTOPHER J. LAROSE, Senior Warden, Otay 26 Mesa Detention Center, 27 Respondents. 28 1 HAYES, Judge: 2 The matters before the Court are the Petition for Writ of Habeas Corpus pursuant to 3 28 U.S.C. § 2241 filed by Petitioners Jose Hernandez Hernandez and Elsy Veronica Del 4 Cid Quijada (ECF No. 1), the Ex Parte Motion for a Temporary Restraining Order filed by 5 Petitioners Jose Hernandez Hernandez and Elsy Veronica Del Cid Quijada (ECF No. 8) 6 and the Motion to File Documents Under Seal filed by Respondents (ECF No. 17). 7 I. PROCEDURAL BACKGROUND 8 On April 19, 2020, Petitioners Jose Hernandez Hernandez, Elsy Veronica Del Cid 9 Quijada, Farzaneh Ramenazi, and Sergio Jaime Lopez initiated this action by filing a 10 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1). Petitioners 11 allege that they are “immigration detainees at Otay Mesa Detention Center” (“OMDC”). 12 Id. at 5. Petitioners “request that this Court order their immediate release to their sponsors” 13 due to “Respondents’ inaction on COVID-19 and the increasing chaos at [OMDC] ….” Id. 14 at 6. 15 On the same day, Petitioner Lopez filed a Motion for a Temporary Restraining 16 Order. (ECF No. 2). Petitioner Lopez requested “a temporary restraining order enjoining 17 the Respondents from continuing to detain him and ordering his immediate release from 18 immigration detention to a hospital to treat his emergent COVID-19 disease.” Id. at 2. 19 On April 23, 2020, Petitioners Hernandez, Del Cid, and Ramenazi filed an Ex Parte 20 Motion for a Temporary Restraining Order. (ECF No. 8). Petitioners Hernandez, Del Cid, 21 and Ramenazi “request that this Court intervene and order their immediate release” from 22 immigration detention to their sponsors “before they become the next preventable COVID- 23 19 case or fatality.” Id. at 6. 24 On May 1, 2020, Respondents filed a Return to the Petition for Writ of Habeas 25 Corpus (ECF No. 1) and a Response in opposition to the Ex Parte Motion for a Temporary 26 Restraining Order (ECF No. 8). (ECF No. 16). On the same day, Respondents filed a 27 Motion to File Documents Under Seal. (ECF No. 17). 28 1 On May 4, 2020, the Court denied the Motion for a Temporary Restraining Order 2 filed by Petitioner Lopez (ECF No. 2). (ECF No. 19). 3 On May 6, 2020, Petitioners Hernandez and Del Cid filed a Reply to the Ex Parte 4 Motion for a Temporary Restraining Order (ECF No. 8). (ECF No. 22). 5 On May 7, 2020, Petitioner Ramenazi filed a Notice of Voluntary Dismissal for the 6 Petition for Writ of Habeas Corpus (ECF No. 1) and the Ex Parte Motion for a Temporary 7 Restraining Order (ECF No. 8). (ECF No. 24). 8 On May 8, 2020, Petitioners Hernandez, Del Cid, and Lopez filed a Reply to the 9 Petition for Writ of Habeas Corpus (ECF No. 1). (ECF No. 25). 10 On May 11, 2020, Petitioner Lopez filed a Notice of Voluntary Dismissal for the 11 Petition for Writ of Habeas Corpus (ECF No. 1). (ECF No. 26). 12 II. FACTS 13 a. Petitioner Hernandez 14 Petitioner Hernandez is a 36-year-old citizen of El Salvador. On April 29, 2010, 15 Petitioner Hernandez immigrated to the United States. 16 On July 9, 2014, Petitioner Hernandez was arrested and charged with domestic 17 violence. Petitioner Hernandez was subsequently convicted sentenced to 30 days in LA 18 County Jail and 36 months of probation. On December 16, 2015, Petitioner Hernandez 19 was arrested and charged with vehicle theft. Petitioner Hernandez was subsequently 20 convicted and sentenced to 6 months in jail and 36 months of probation. On January 25, 21 2016, Petitioner Hernandez was arrested and charged with receipt of stolen property. 22 Petitioner Hernandez was subsequently convicted and sentenced to 16 months in LA 23 County Jail. On March 2, 2016, Petitioner Hernandez was arrested and charged with 24 domestic violence. On April 4, 2016, Petitioner Hernandez was convicted and sentenced 25 to 364 days in LA County Jail. 26 On August 8, 2016, Petitioner Hernandez was apprehended by Immigration and 27 Customs Enforcement and placed in removal proceedings based on his April 4, 2016 28 conviction for domestic violence. 1 On April 24, 2017, the immigration judge denied Petitioner Hernandez’s release on 2 bond because he was found to be a danger to the community. Petitioner Hernandez 3 reserved the right to appeal the immigration judge’s denial of release on bond. 4 On June 7, 2017, the immigration judge denied Petitioner Hernandez’s application 5 for asylum, application for withholding of removal, and application for cancellation of 6 removal. On the same day, the immigration judge ordered Petitioner Hernandez removed 7 from the United States to El Salvador. Petitioner Hernandez appealed the immigration 8 judge’s denials and order of removal to the Board of Immigration Appeals (“BIA”). 9 On the same day, the immigration judge denied Petitioner Hernandez’s release on 10 bond because he failed to present changed circumstances. Petitioner Hernandez waived 11 the right to appeal the immigration judge’s denial of release on bond. 12 On October 10, 2017, the BIA affirmed the immigration judge’s denial of Petitioner 13 Hernandez’s application for asylum, denial of Petitioner Hernandez’s application for 14 withholding of removal, and denial of Petitioner Hernandez’s application for cancellation 15 of removal. On the same day, the BIA affirmed the immigration judge’s removal order 16 and dismissed Petitioner Hernandez’s appeal. Petitioner Hernandez appealed the BIA 17 decision to the Court of Appeals. 18 On January 16, 2018, the immigration judge denied Petitioner Hernandez’s release 19 on bond because he was found to be a danger to the community and a flight risk. Petitioner 20 Hernandez reserved the right to appeal the immigration judge’s denial of release on bond. 21 On May 20, 2019, the Court of Appeals remanded the case to the BIA. The Court 22 of Appeals ordered the BIA to assess Petitioner Hernandez’s eligibility for asylum and 23 cancellation of removal because Petitioner Hernandez’s conviction for receipt of stolen 24 property had been vacated. 25 On September 10, 2019, the BIA remanded the case to the immigration Judge. 26 On March 6, 2020, the immigration judge scheduled a hearing to take place on May 27 22, 2020. 28 1 On March 10, 2020, the immigration judge denied Petitioner Hernandez’s Motion 2 to Reconsider the earlier bond determination because Petitioner Hernandez failed to present 3 changed circumstances. The immigration judge affirmed that Petitioner Hernandez 4 remains a danger to the community. 5 On April 6, 2020, Petitioner Hernandez filed a humanitarian “parole request” with 6 the Department of Homeland Security. Cargioli Decl. ¶ 54, ECF No. 1-2 at 12. The 7 Department of Homeland Security has not issued a decision regarding Petitioner 8 Hernandez’s request. 9 On April 13, 2020, Petitioner Hernandez “requested a bond hearing due to COVID- 10 19.” Id. at ¶ 57, ECF No. 1-2 at 13.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ELSY VERONICA DEL CID Case No.: 3:20-cv-00744-WQH-AGS QUIJADA; JOSE HERNANDEZ 11 HERNANDEZ; SERGIO JAIME ORDER 12 LOPEZ; and FARZANEH RAMENAZI, 13 Petitioners, 14 v. 15 CHAD T. WOLF, Acting 16 Secretary of Homeland Security; 17 MATTHEW T. ALBENCE, Deputy Director and Senior 18 Official Performing Duties of the 19 Director of U.S. Immigration and Customs Enforcement; 20 GREGORY J. 21 ARCHAMBEAULT, San Diego Field Office Director, Immigration 22 and Customs Enforcement; 23 JAMES DOBSON, Otay Mesa Detention Center Officer in 24 Charge, Immigration and Customs 25 Enforcement; CHRISTOPHER J. LAROSE, Senior Warden, Otay 26 Mesa Detention Center, 27 Respondents. 28 1 HAYES, Judge: 2 The matters before the Court are the Petition for Writ of Habeas Corpus pursuant to 3 28 U.S.C. § 2241 filed by Petitioners Jose Hernandez Hernandez and Elsy Veronica Del 4 Cid Quijada (ECF No. 1), the Ex Parte Motion for a Temporary Restraining Order filed by 5 Petitioners Jose Hernandez Hernandez and Elsy Veronica Del Cid Quijada (ECF No. 8) 6 and the Motion to File Documents Under Seal filed by Respondents (ECF No. 17). 7 I. PROCEDURAL BACKGROUND 8 On April 19, 2020, Petitioners Jose Hernandez Hernandez, Elsy Veronica Del Cid 9 Quijada, Farzaneh Ramenazi, and Sergio Jaime Lopez initiated this action by filing a 10 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1). Petitioners 11 allege that they are “immigration detainees at Otay Mesa Detention Center” (“OMDC”). 12 Id. at 5. Petitioners “request that this Court order their immediate release to their sponsors” 13 due to “Respondents’ inaction on COVID-19 and the increasing chaos at [OMDC] ….” Id. 14 at 6. 15 On the same day, Petitioner Lopez filed a Motion for a Temporary Restraining 16 Order. (ECF No. 2). Petitioner Lopez requested “a temporary restraining order enjoining 17 the Respondents from continuing to detain him and ordering his immediate release from 18 immigration detention to a hospital to treat his emergent COVID-19 disease.” Id. at 2. 19 On April 23, 2020, Petitioners Hernandez, Del Cid, and Ramenazi filed an Ex Parte 20 Motion for a Temporary Restraining Order. (ECF No. 8). Petitioners Hernandez, Del Cid, 21 and Ramenazi “request that this Court intervene and order their immediate release” from 22 immigration detention to their sponsors “before they become the next preventable COVID- 23 19 case or fatality.” Id. at 6. 24 On May 1, 2020, Respondents filed a Return to the Petition for Writ of Habeas 25 Corpus (ECF No. 1) and a Response in opposition to the Ex Parte Motion for a Temporary 26 Restraining Order (ECF No. 8). (ECF No. 16). On the same day, Respondents filed a 27 Motion to File Documents Under Seal. (ECF No. 17). 28 1 On May 4, 2020, the Court denied the Motion for a Temporary Restraining Order 2 filed by Petitioner Lopez (ECF No. 2). (ECF No. 19). 3 On May 6, 2020, Petitioners Hernandez and Del Cid filed a Reply to the Ex Parte 4 Motion for a Temporary Restraining Order (ECF No. 8). (ECF No. 22). 5 On May 7, 2020, Petitioner Ramenazi filed a Notice of Voluntary Dismissal for the 6 Petition for Writ of Habeas Corpus (ECF No. 1) and the Ex Parte Motion for a Temporary 7 Restraining Order (ECF No. 8). (ECF No. 24). 8 On May 8, 2020, Petitioners Hernandez, Del Cid, and Lopez filed a Reply to the 9 Petition for Writ of Habeas Corpus (ECF No. 1). (ECF No. 25). 10 On May 11, 2020, Petitioner Lopez filed a Notice of Voluntary Dismissal for the 11 Petition for Writ of Habeas Corpus (ECF No. 1). (ECF No. 26). 12 II. FACTS 13 a. Petitioner Hernandez 14 Petitioner Hernandez is a 36-year-old citizen of El Salvador. On April 29, 2010, 15 Petitioner Hernandez immigrated to the United States. 16 On July 9, 2014, Petitioner Hernandez was arrested and charged with domestic 17 violence. Petitioner Hernandez was subsequently convicted sentenced to 30 days in LA 18 County Jail and 36 months of probation. On December 16, 2015, Petitioner Hernandez 19 was arrested and charged with vehicle theft. Petitioner Hernandez was subsequently 20 convicted and sentenced to 6 months in jail and 36 months of probation. On January 25, 21 2016, Petitioner Hernandez was arrested and charged with receipt of stolen property. 22 Petitioner Hernandez was subsequently convicted and sentenced to 16 months in LA 23 County Jail. On March 2, 2016, Petitioner Hernandez was arrested and charged with 24 domestic violence. On April 4, 2016, Petitioner Hernandez was convicted and sentenced 25 to 364 days in LA County Jail. 26 On August 8, 2016, Petitioner Hernandez was apprehended by Immigration and 27 Customs Enforcement and placed in removal proceedings based on his April 4, 2016 28 conviction for domestic violence. 1 On April 24, 2017, the immigration judge denied Petitioner Hernandez’s release on 2 bond because he was found to be a danger to the community. Petitioner Hernandez 3 reserved the right to appeal the immigration judge’s denial of release on bond. 4 On June 7, 2017, the immigration judge denied Petitioner Hernandez’s application 5 for asylum, application for withholding of removal, and application for cancellation of 6 removal. On the same day, the immigration judge ordered Petitioner Hernandez removed 7 from the United States to El Salvador. Petitioner Hernandez appealed the immigration 8 judge’s denials and order of removal to the Board of Immigration Appeals (“BIA”). 9 On the same day, the immigration judge denied Petitioner Hernandez’s release on 10 bond because he failed to present changed circumstances. Petitioner Hernandez waived 11 the right to appeal the immigration judge’s denial of release on bond. 12 On October 10, 2017, the BIA affirmed the immigration judge’s denial of Petitioner 13 Hernandez’s application for asylum, denial of Petitioner Hernandez’s application for 14 withholding of removal, and denial of Petitioner Hernandez’s application for cancellation 15 of removal. On the same day, the BIA affirmed the immigration judge’s removal order 16 and dismissed Petitioner Hernandez’s appeal. Petitioner Hernandez appealed the BIA 17 decision to the Court of Appeals. 18 On January 16, 2018, the immigration judge denied Petitioner Hernandez’s release 19 on bond because he was found to be a danger to the community and a flight risk. Petitioner 20 Hernandez reserved the right to appeal the immigration judge’s denial of release on bond. 21 On May 20, 2019, the Court of Appeals remanded the case to the BIA. The Court 22 of Appeals ordered the BIA to assess Petitioner Hernandez’s eligibility for asylum and 23 cancellation of removal because Petitioner Hernandez’s conviction for receipt of stolen 24 property had been vacated. 25 On September 10, 2019, the BIA remanded the case to the immigration Judge. 26 On March 6, 2020, the immigration judge scheduled a hearing to take place on May 27 22, 2020. 28 1 On March 10, 2020, the immigration judge denied Petitioner Hernandez’s Motion 2 to Reconsider the earlier bond determination because Petitioner Hernandez failed to present 3 changed circumstances. The immigration judge affirmed that Petitioner Hernandez 4 remains a danger to the community. 5 On April 6, 2020, Petitioner Hernandez filed a humanitarian “parole request” with 6 the Department of Homeland Security. Cargioli Decl. ¶ 54, ECF No. 1-2 at 12. The 7 Department of Homeland Security has not issued a decision regarding Petitioner 8 Hernandez’s request. 9 On April 13, 2020, Petitioner Hernandez “requested a bond hearing due to COVID- 10 19.” Id. at ¶ 57, ECF No. 1-2 at 13. Petitioner Hernandez “has not received a response” 11 and has been informed that the court “has not been able to rule on the request, because the 12 physical file is at [OMDC], which is closed.” Id. 13 Petitioner Hernandez has not reported any symptoms compatible with COVID-19 14 during his detention at OMDC. Since January 4, 2020, Petitioner Hernandez’s medical 15 appointments have been for health problems unrelated to COVID-19 including medication 16 renewals and shoulder pain. 17 Petitioner “Hernandez is currently … detained in a section known as the “L pod” 18 with approximately 43 other detainees.” Noche Decl. ¶ 4, ECF No. 1-3 at 2. Petitioner 19 “Hernandez … share[s] communal facilities, including showers, eating areas, exercise 20 facilities, and common areas with the 43 other detainees in his pod.” Id. “These common 21 areas include tables, seating areas, water dispenser, a kiosk for commissary purchases, and 22 telephones.” Id. Petitioner “Hernandez … reported … that cleaning supplies such as soap 23 and disinfectant were not always available, and that OMDC often experiences shortages of 24 these supplies.” Id. at ¶ 6, ECF No. 1-3 at 3. “[A]ll detainees were provided with one 25 mask ….” Id. at ¶ 7, ECF No. 1-3 at 3. “Masks are not mandatory, but optional.” Id. 26 “[N]ot all detainees or detention guards use masks.” Id. 27 28 1 b. Petitioner Del Cid 2 Petitioner Del Cid is a 22-year-old citizen of El Salvador. On September 5, 2019, 3 Petitioner Del Cid applied for admission into the United States at the San Ysidro Port of 4 Entry. On the same day, Petitioner Del Cid applied for asylum and was placed in the 5 Migrant Protection Protocols program (“MPP program”). On the same day, Petitioner Del 6 Cid was given a Notice to Appear before an immigration judge to commence removal 7 proceedings. 8 On September 6, 2019, a U.S. Customs and Border Patrol officer found that 9 Petitioner Del Cid was subject to removal and charged with inadmissibility pursuant to 8 10 U.S.C. § 1182(a)(7)(A)(i)(I). The U.S. Customs and Border Patrol officer found that 11 Petitioner Del Cid was 12 not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the [Immigration and 13 Nationality] Act, and a valid unexpired passport, or other suitable travel 14 document, or document of identity and nationality as required under the regulations issued by the Attorney General under section 211(a) of the Act. 15
16 (Ex. 7 to Respondents’ Response, ECF No. 16-1 at 8). 17 On September 24, 2019, the immigration judge ordered Petitioner Del Cid removed 18 from the United States. On March 6, 2020 Petitioner Del Cid appealed the immigration 19 judge’s order of removal to the BIA. 20 On March 25, 2020, Petitioner Del Cid was seen by a registered nurse at OMDC. 21 Petitioner Del Cid was provided medication and was cleared to return to her housing unit. 22 On April 13, 2020, Petitioner Del Cid filed a “humanitarian parole request” with the 23 Department of Homeland Security. Cargioli Decl. ¶ 54, ECF No. 1-2 at 12. The 24 Department of Homeland Security has not issued a decision regarding Petitioner Del Cid’s 25 request. 26 On April 14, 2020, Petitioner Del Cid was seen by a registered nurse at OMDC. 27 Petitioner Del Cid was provided medication and was cleared to return to her housing unit. 28 1 On April 23, 2020, Petitioner Del Cid was granted parole by Immigration and 2 Customs Enforcement with a bond set at $15,000. 3 On April 28, 2020, Petitioner Del Cid had a telephonic appointment with a physician 4 assistant regarding medication renewals. 5 On April 29, 2020, Petitioner Del Cid was seen by a registered nurse at OMDC for 6 a health problem unrelated to COVID-19. 7 Petitioner “Del Cid’s pod houses approximately 82 detainees.” Id. at ¶ 30, ECF No. 8 1-2 at 8. Petitioner “Del Cid sleeps in a cell with four detainees and they … share the same 9 bathroom.” Id. Petitioner “Del Cid … share[s] tables, chairs, telephones, and other 10 common areas with 81 other detainees.” Id. 11 c. Conditions at OMDC 12 “The [OMDC] has a population within approved capacity and is not overcrowded.” 13 Beckhelm Decl. ¶ 13, ECF No. 16-2 at 4. “New admissions to OMDC have been 14 suspended since approximately April 2, 2020, except for one case where there was a critical 15 need.” Id. at ¶ 8, ECF No. 16-2 at 3. “Because OMDC is not accepting new detainees, and 16 because persons in high-risk groups are generally released, OMDC is now operating at 17 about half capacity.” Id. ¶ 13, ECF No. 16-2 at 4; see also LaRose Decl. ¶ 12, ECF No. 18 16-5 at 3. 19 “The [OMDC] has limited professional visits to noncontact visits and suspended in 20 person social visitation and facility hours.” Beckhelm Decl. ¶ 15, ECF No. 16-2 at 5; see 21 also Farabaugh Decl. ¶ 17, ECF No. 16-3 at 4. “The [OMDC] custody staff is screening 22 all staff and vendors when they enter the facilities including body temperatures.” 23 Beckhelm Decl. ¶ 16, ECF No. 16-2 at 5; see also Farabaugh Decl. ¶ 18, ECF No. 16-3 at 24 4. 25 “Since the onset of reports of … []COVID-19[], [Immigration and Customs 26 Enforcement] epidemiologists have been tracking the outbreak, regularly updating 27 infection prevention and control protocols, and issuing guidance to field staff on screening 28 1 and management of potential exposure among detainees.” Beckhelm Decl. ¶ 4, ECF No. 2 16-2 at 3; see also Farabaugh Decl. ¶ 8, ECF No. 16-3 at 2-3. 3 “Those detainees who present symptoms compatible with COVID-19 will be placed 4 in isolation, where they will be tested.” Beckhelm Decl. ¶ 9, ECF No. 16-2 at 4; Farabaugh 5 Decl. ¶ 12, ECF No. 16-3 at 3. “In testing for COVID-19, IHSC is also following guidance 6 issued by the Centers for Disease Control ([“]CDC[”]) to safeguard those in its custody 7 and care.” Beckhelm Decl. ¶ 5, ECF No. 16-2 at 3; see also Farabaugh Decl. ¶ 9, ECF No. 8 16-3 at 3. “If testing is positive, they will remain isolated and treated.” Beckhelm Decl. ¶ 9 9, ECF No. 16-2 at 4; Farabaugh Decl. ¶ 12, ECF No. 16-3 at 3. “In case of any clinical 10 deterioration, they will be referred to a local hospital.” Beckhelm Decl. ¶ 9, ECF No. 16- 11 2 at 4; Farabaugh Decl. ¶ 12, ECF No. 16-3 at 3. 12 “In cases of known exposure to a person with confirmed COVID-19, asymptomatic 13 detainees are placed in cohorts with restricted movement for the duration of the most recent 14 incubation period (14 days after most recent exposure to an ill detainee) and are monitored 15 daily for fever and symptoms of respiratory illness.” Beckhelm Decl. ¶ 10, ECF No. 16-2 16 at 4; Farabaugh Decl. ¶ 13, ECF No. 16-3 at 3; see also Ivens Decl. ¶ 15, ECF No. 16-4 at 17 4. “Cohorting is an infection-prevention strategy which involves housing detainees 18 together who were exposed to a person with an infectious organism but are asymptomatic.” 19 Farabaugh Decl. ¶ 14, ECF No. 16-3 at 3; see also Ivens Decl. ¶ 15, ECF No. 16-4 at 4. 20 “This practice lasts for the duration of the COVID-19 incubation period of 14 days, because 21 individuals with COVID-19 and other communicable diseases can be contagious before 22 they develop symptoms and can serve as undetected source patients.” Farabaugh Decl. ¶ 23 14, ECF No. 16-3 at 3. “All meals, medical, recreation, and programming services are 24 provided to these detainees on-unit, further protecting against the risk of exposure and 25 infection.” Ivens Decl. ¶ 16, ECF No. 16-4 at 4. “In addition, all detainees in a cohort 26 unit[] [sic] only attend recreation with detainees in the same cohort.” Id. “Non-emergency 27 medical and dental services which cannot be provided on the unit have been suspended.” 28 Id. “Those that show onset of fever and/or respiratory illness are referred to a medical 1 provider for evaluation.” Farabaugh Decl. ¶ 14, ECF No. 16-3 at 3. “Cohorting is 2 discontinued when the 14-day incubation period completes with no new cases.” Id. 3 “The IHSC [m]edical [s]taff which manages both males and females, provides daily 4 access to sick calls in a clinical setting and has an onsite medical infirmary, mental health 5 and dental health services with the ability to admit patients at the local hospital for mental 6 or medical health care.” Beckhelm Decl. ¶ 11, ECF No. 16-2 at 4; see also Farabaugh 7 Decl. ¶ 14, ECF No. 16-3 at 3-4. “The IHSC medical staff provide education on COVID- 8 19 to staff and detainees to include the importance of hand washing and hand hygiene, 9 covering coughs with the elbow instead of with hands, and requesting to seek medical care 10 if they feel ill.” Beckhelm Decl. ¶ 18, ECF No. 16-2 at 5; see also Farabaugh Decl. ¶ 20, 11 ECF No. 16-3 at 5. 12 “CoreCivic owns and manages OMDC and staffs the custodial elements of OMDC 13 except for the medical staff.” Farabaugh Decl. ¶ 5, ECF No. 16-3 at 2; see also LaRose 14 Decl. ¶ 7, ECF No. 16-5 at 2. “CoreCivic supplies [personal protective equipment] to 15 detainees and gloves to those performing sanitation duties.” Beckhelm Decl. ¶ 12, ECF 16 No. 16-2 at 4. “Masks were first offered to detainees on April 10, 2020.” LaRose Decl. ¶ 17 82, ECF No. 16-5 at 18. “Detainees are not required to utilize masks if they do not wish 18 to; however, they are encouraged to do so – and have been educated as to the 19 recommendations and use of the same.” Id. at ¶ 84, ECF No. 16-5 at 18. “OMDC … 20 offer[s] all detainees facial masks[] without cost.” Id. at ¶ 82, ECF No. 16-5 at 18. “[I]f a 21 detainee asks unit staff for a new mask because his/her mask is soiled or no longer usable, 22 detainees are provided with new masks.” Id. at ¶ 83, ECF No. 16-5 at 18. “[M]asks are 23 provided upon request without requirement that the prior mask be exchanged for the new 24 one.” Id. “In conjunction with distribution of facial masks to the detainee population, unit 25 staff have provided detainees with education on proper wearing, handling, and disposal of 26 masks.” Id. at ¶ 85, ECF No. 16-5 at 18. 27 “OMDC has enhanced its already robust sanitation practices in response to COVID- 28 19.” Id. at ¶ 106, ECF No. 16-5 at 25. “CDC recommended cleaning and disinfection 1 above and beyond normal activity have been implemented.” Beckhelm Decl. ¶ 14(b), ECF 2 No. 16-2 at 5. “In the normal course of operation, OMDC detainees are provided with 3 facility-approved soap and EPA-registered sanitation supplies to clean their immediate 4 living areas on a daily basis.” LaRose Decl. ¶ 115, ECF No. 16-5 at 27. “In response to 5 COVID-19, detainees are provided access to extra cleaning supplies and disinfectant 6 chemicals to clean their cells/immediate living areas.” Id. at ¶ 116, ECF No. 16-5 at 27. 7 “Every pod has also established frequent deep cleaning processes, where extra disinfection 8 is performed on ‘high touch’ areas and those areas that could foster the spread of pathogens, 9 including showers, door handles, day room surfaces, floors, detainee kiosks, telephones, 10 hand rails, etc.” Id. at ¶ 118, ECF No. 16-5 at 27. “During Town Hall meetings, detainees 11 are instructed on how to safely sanitize the common area surfaces that they may use during 12 the day before and after use—such as detainee telephones and kiosks.” Id. at ¶ 109, ECF 13 No. 16-5 at 25. 14 “All staff have been instructed to disinfect their works areas, including ‘high touch’ 15 areas like door handles, call buttons, telephones, surfaces, and counters, throughout the 16 day.” Id. at ¶ 120, ECF No. 16-5 at 27. “All keyboards and staff equipment (including 17 keys, portable radios, handcuffs, etc.), as well as all equipment used by detainees (including 18 cleaning equipment and food service equipment) are disinfected multiple times per day.” 19 Id. at ¶ 120, ECF No. 16-5 at 27-28. 20 “Liquid soap and electric hand dryers are available in OMDC living units that have 21 communal restroom facilities.” Id. at ¶ 110, ECF No. 16-5 at 25. “The administration is 22 encouraging both staff and [detainees] to use these tools often and liberally.” Beckhelm 23 Decl. ¶ 14(a), ECF No. 16-2 at 4. “Soap dispensers are checked frequently and each pod 24 has liquid soap on hand for refill during frequent checks or upon advisement from detainees 25 that a refill is needed.” LaRose Decl. ¶ 110, ECF No. 16-5 at 25. “OMDC continues its 26 practice of issuing hygiene products to detainees twice a week.” Id. at ¶ 111, ECF No. 16- 27 5 at 25. “Issued hygiene products include bar soap, toothpaste, shampoo, lotion and toilet 28 paper.” Id. “[F]rom March 4, 2020 to April 23, 2020, OMDC issued detainees 23,300 bars 1 of soap free of charge.” Id. at ¶ 112, ECF No. 16-5 at 26. “During that same time period, 2 detainees purchased 996 bars of soap from the commissary ….” Id. 3 d. Immigration Proceedings 4 “The Executive Office for Immigration Review (EOIR) continues to conduct 5 immigration court, including bond and merit hearings through video-teleconference (VTC) 6 from the downtown San Diego EOIR court.” Id. at ¶ 20, ECF No. 16-2 at 5. Immigration 7 and Customs Enforcement “continues to process bond and custody release documentation 8 through the downtown San Diego EOIR bond unit.” Id. at ¶ 22, ECF No. 16-2 at 6. “Due 9 to the current health and public safety concerns, the individuals are not released until they 10 are medically cleared by IHSC.” Id. “Medical clearance is conducted the same day bond 11 or release orders are processed.” Id. 12 III. DISCUSSION 13 To succeed on a habeas petition, a petitioner must show that he is “in custody in 14 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241. 15 a. Reasonable Relation to Legitimate Government Purpose 16 Petitioners Hernandez and Del Cid contend that their continued detention is not 17 reasonably related to any legitimate governmental goal. Petitioners Hernandez and Del 18 Cid contend that “Respondents’ interests in ensuring Petitioners do not abscond or 19 endanger the public could readily be achieved through alternative and less potentially 20 deadly means ….” (ECF No. 1 at 29-30). Respondents contend that Petitioner Hernandez 21 has been “denied release on bond” because he “presents a danger to the community due to 22 his criminal history ….” (ECF No. 16 at 5, 7). Respondents contend that Petitioner Del 23 Cid’s claim for habeas relief “ha[s] been rendered moot” because Petitioner Del Cid has 24 been “granted parole upon posting a $15,000 bond.” Id. at 7, 17. 25 8 U.S.C. § 1231(a)(6) states that 26 An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title 27 or who has been determined by the Attorney General to be a risk to the 28 community or unlikely to comply with the order of removal, may be detained 1 beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3). 2
3 8 U.S.C. § 1231(a)(6). Individuals detained pursuant to immigration violations are civil 4 detainees. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). “[U]nder the Due Process 5 Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with 6 due process of law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979) (citations omitted). “Bell’s 7 focus on ‘punishment’ does not mean that proof of intent (or motive) to punish is required 8 for a pretrial detainee to prevail on a claim that his due process rights were violated.” 9 Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (emphasis in original). “Rather, … 10 a pretrial detainee can prevail by providing only objective evidence that the challenged 11 governmental action is not rationally related to a legitimate governmental objective or that 12 it is excessive in relation to that purpose.” Id. at 2473-74 (citations omitted). In other 13 words, conditions are punitive when they “are employed to achieve objectives that could 14 be accomplished in so many alternative and less harsh methods ….” Jones v. Blanas, 393 15 F.3d 918, 932 (9th Cir. 2004) (citation omitted). 16 The Supreme Court has recognized the detention of individuals pending their 17 removal proceedings as rationally related to the legitimate governmental interest of 18 ensuring their appearance for their deportation proceedings and preventing danger to the 19 community. See Zadvydas, 533 U.S. at 690. The Supreme Court “has recognized detention 20 during deportation proceedings as a constitutionally valid aspect of the deportation 21 process.” Demore v. Kim, 538 U.S. 510, 523 (2003). On March 10, 2020, Petitioner 22 Hernandez was denied release on bond because the immigration judge found that he is a 23 danger to the community.1 On April 23, 2020, Petitioner Del Cid was granted parole with 24 a bond set at $15,000.2 The Court cannot conclude that the continued detention of 25 Petitioners Hernandez and Del Cid “is not rationally related to a legitimate governmental 26
27 1 Petitioner Hernandez does not challenge this determination in the Petition. 28 1 objective or that it is excessive in relation to that purpose.” Kingsley, 135 S. Ct. 2466, 2 2473-74 (citations omitted). 3 b. Reasonable Safety of Detainees 4 Petitioners contend that their continued detention violates their substantive due 5 process rights pursuant to the Fifth Amendment. Petitioners contend that Respondents 6 have violated Petitioners’ “freedom from unlawful punishment and from cruel and unusual 7 punishment and conditions of confinement.” (ECF No. 1 at 25) (emphasis omitted). 8 Petitioners contend Respondents have failed to “assum[e] responsibility for [their] safety 9 and well-being.” Id. at 30. Petitioners contend that their “continued detention at [OMDC] 10 exposes them to an inevitable COVID-19 infection ….” Id. at 27. Respondents assert that 11 Petitioners have received adequate medical care at OMDC. Respondents assert that 12 Petitioners are “not [housed] in overcrowded spaces” and are able “to maintain [social] 13 distancing” at OMDC. (ECF No. 16 at 12). 14 Due process imposes a duty on the government “to assume some responsibility for 15 [the] safety and general well-being” of persons it takes into its custody. DeShaney v. 16 Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989) (citation omitted). The 17 government can consequently be held liable for a due process violation where a 18 government official affirmatively places individuals, with deliberate indifference to their 19 health or safety, in a position of known danger “which he or she would not have otherwise 20 faced.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (citing 21 DeShaney, 489 U.S. at 197, 201). A plaintiff in custody must show that government 22 officials acted in an objectively unreasonable manner that “put the plaintiff at substantial 23 risk of suffering serious harm ….” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th 24 Cir. 2016)). The Supreme Court has held that prison officials cannot “ignore a condition 25 of confinement that is sure or very likely to cause serious illness and needless suffering the 26 next week or month or year.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (citation 27 omitted). 28 1 The evidence in the record shows that Petitioners Hernandez and Del Cid have 2 access to adequate medical facilities. Petitioner Hernandez has not reported any symptoms 3 compatible with COVID-19 during his detention at OMDC. On March 25 and April 14, 4 2020, Petitioner Del Cid was seen by a registered nurse at OMDC, provided medication, 5 and cleared to return to her housing unit. The evidence in the record shows that the facility 6 has taken adequate steps to respond to the COVID-19 outbreak. OMDC is operating at 7 about half capacity. Practices have been implemented to promote the maintenance of six 8 feet of physical distance among individuals (detainees and staff members) at OMDC. 9 Detainees are offered masks and encouraged to use them. Detainees are provided gloves, 10 cleaning supplies, and disinfectants. Petitioners fail set forth evidence that Respondents 11 are violating Petitioners’ substantive due process rights by failing to respond to the 12 COVID-19 pandemic. The Court cannot conclude that Respondents have failed “to assume 13 some responsibility for [the] safety and general well-being” of Petitioners. DeShaney, 489 14 U.S. at 199-200 (citation omitted). The Court cannot conclude that Respondents have acted 15 in an objectively unreasonable manner that “put[s] [Petitioners] at substantial risk of 16 suffering serious harm ….” Castro, 833 F.3d at 1071. The Court concludes that 17 Petitioners’ continued detention violates neither “the Constitution or laws or treaties of the 18 United States.” 28 U.S.C. § 2241. 19 IV. CONCLUSION 20 IT IS HEREBY ORDERED that the Ex Parte Motion for a Temporary Restraining 21 Order filed by Petitioners Jose Hernandez Hernandez and Elsy Veronica Del Cid Quijada 22 (ECF No. 8) is DENIED. 23 IT IS FURTHER ORDERED that the Motion to File Documents Under Seal filed 24 by Respondents (ECF No. 17) is GRANTED. 25 26 27 28 1 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant 2 || to 28 U.S.C. § 2241 filed by Petitioners Jose Hernandez Hernandez and Elsy Veronica Del 3 || Cid Quijada (ECF No. 1) is DISMISSED. The Clerk of the Court shall enter judgment in 4 || favor of Respondents and against Petitioners. 5 || Dated: June 1, 2020 BE: eg Ze. Ma 6 Hon, William Q. Hayes 4 United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28