United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:20-cv-10685-ADB

Augusto et al v. Moniz Assigned to: Judge Allison D. Burroughs Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 04/07/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner
Pedro Wabibi Augusto 78781 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 TERMINATED: 02/16/2021

represented by Joanna S. Keefe Silva Keefe Law Office 801 C Tremont Street Boston, MA 02118 617-820-6079 Email: silvakeefej@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Petitioner
Pablo Navarette TERMINATED: 05/05/2020

represented by Pablo Navarette PRO SE

Petitioner
Rocard Mbuma TERMINATED: 06/16/2020

represented by Rocard Mbuma 78798 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE

Petitioner
Paul Atabong Fossem TERMINATED: 07/22/2020

represented by Paul Atabong Fossem Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE

Petitioner Pedro Cuba TERMINATED: 03/04/2021
Petitioner Guadalupe Velez Chavez TERMINATED: 05/05/2020 Petitioner Jorge Martinez Delgado TERMINATED: 09/03/2020
Petitioner Manuel Maldonado-Maldonado TERMINATED: 05/28/2020
Petitioner Fausto Dumaguala TERMINATED: 08/24/2020
Petitioner

represented by William Keefe Law Office of William Keefe 801 C Tremont Street Boston, MA 02118 617-947-8483 Fax: 617-445-8002 Email: wkeefelaw@gmail.com ATTORNEY TO BE NOTICED
represented by Guadalupe Velez Chavez PRO SE
represented by Jorge Martinez Delgado Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Manuel Maldonado-Maldonado Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Fausto Dumaguala Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE

Jose Luis Rodriguez Martinez TERMINATED: 09/03/2020
Petitioner Morcos F Chaves Chaves TERMINATED: 10/09/2020
Petitioner Freddy Vallejos Rivera TERMINATED: 05/13/2020 Petitioner Teofilo Niz Chilel TERMINATED: 05/05/2020 Petitioner Danilo Gomez Ayala TERMINATED: 10/01/2020
Petitioner Manuel Lema Mizhirumbay TERMINATED: 05/05/2020 Petitioner Ricardo Ramirez TERMINATED: 05/05/2020

represented by Jose Luis Rodriguez Martinez 78212 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Joanna S. Keefe (See above for address) ATTORNEY TO BE NOTICED
represented by Freddy Vallejos Rivera PRO SE
represented by Teofilo Niz Chilel PRO SE
represented by Danilo Gomez Ayala Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Manuel Lema Mizhirumbay PRO SE
represented by Ricardo Ramirez 78480 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE

Petitioner Miguel Carpio TERMINATED: 05/05/2020
Petitioner Galindo Martin-Solis TERMINATED: 09/28/2020
Petitioner Wilmer Espinel Alvarado TERMINATED: 04/30/2020

represented by Miguel Carpio 78569 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Galindo Martin-Solis Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Adriana Lafaille American Civil Liberties Union 211 Congress Street Boston, MA 02110 617-482-3170 Email: alafaille@aclum.org ATTORNEY TO BE NOTICED
Daniel L. McFadden American Civil Liberties Union 211 Congress Street Boston, MA 02110 617-482-3170 Email: dmcfadden@aclum.org ATTORNEY TO BE NOTICED
Laura K. McCready ACLU of Massachusetts 211 Congress Street Boston, MA 02110 617-482-3170 Email: lmccready@aclum.org ATTORNEY TO BE NOTICED
Matthew Segal

Petitioner Jesus Paulino-Bello TERMINATED: 05/21/2020 Petitioner Manuel Cela-Caguana TERMINATED: 08/24/2020
Petitioner Hector Pojoy-Calel TERMINATED: 11/23/2020
Petitioner Ramon Sanchez Vasquez TERMINATED: 06/16/2020
Petitioner Henry Navas-Ramos TERMINATED: 05/05/2020

American Civil Liberties Union 211 Congress Street Boston, MA 02110 617-482-3170 Fax: 617-451-0009 Email: msegal@aclum.org ATTORNEY TO BE NOTICED
Susan B. Church Demissie & Church 929 Massachusetts Avenue Suite 01 Cambridge, MA 02139 617-354-3944 Email: sbc@demissiechurch.com ATTORNEY TO BE NOTICED
represented by Jesus Paulino-Bello PRO SE
represented by William Keefe (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen A. Lagana Lagana & Associates 145 Essex Street Lawrence, MA 01840-0149 978-794-2331 Fax: 978-794-2441 Email: lagana.law@gmail.com ATTORNEY TO BE NOTICED
represented by William Keefe (See above for address) ATTORNEY TO BE NOTICED
represented by Henry Navas-Ramos PRO SE

Petitioner Rodrigue Henoud TERMINATED: 05/05/2020 Petitioner Leroy Daley TERMINATED: 08/24/2020
Petitioner Michael Langa TERMINATED: 06/30/2020
Petitioner Evens Dry TERMINATED: 05/13/2020

represented by Rodrigue Henoud PRO SE
represented by Leroy Daley 77629 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Michael Langa 77591 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Anand Balakrishnan American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad Street, 17th Floor New York, NY 10004-2400 212-549-2660 Email: abalakrishnan@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David C. Fathi American Civil Liberties Union Foundation, National Prison P 915 15th St. N.W., 7th Floor Washington, DC 20005 (202) 548-6603 Email: dfathi@aclu.org

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eunice H. Cho American Civil Liberties Union Foundation National Prison Project 915 15th St. N.W. 7th Floor Washington, DC 20005 202-548-6616 Email: echo@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan ACLU Foundation Immigrants Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2660 Email: mtan@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants Rights 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2660 Email: ojadwat@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca A. Ojserkis American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (332) 204-2737 Email: rojserkis@aclu.org

Petitioner Hazem Khalil El Beshtawi TERMINATED: 05/05/2020
Petitioner Rafael Dos Santos Rodriguez TERMINATED: 05/13/2020

TERMINATED: 10/02/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel L. McFadden (See above for address) ATTORNEY TO BE NOTICED
Laura K. McCready (See above for address) ATTORNEY TO BE NOTICED
Mary P. Holper Boston College Legal Services LAB Immigration Clinic 885 Centre Street EW 300C Newton, MA 02459 617-552-4573 Email: holper@bc.edu ATTORNEY TO BE NOTICED
Susan B. Church (See above for address) ATTORNEY TO BE NOTICED
represented by Hazem Khalil El Beshtawi 78739 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Rafael Dos Santos Rodriguez 78583 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360

Petitioner Jose Rene Hernandez Gomes TERMINATED: 05/05/2020
Petitioner Victor Silva Soares TERMINATED: 09/03/2020
Petitioner Rogerio Pereira daSilva TERMINATED: 07/20/2020
Petitioner Felipe De Lima Moreira Barros TERMINATED: 06/30/2020
Petitioner Carlos Eduardo Santos
Petitioner Oscar Ramirez Garcia TERMINATED: 05/05/2020 Petitioner

508-830-6200 PRO SE
represented by Jose Rene Hernandez Gomes 78668 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Stephen A. Lagana (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen A. Lagana (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen A. Lagana (See above for address) ATTORNEY TO BE NOTICED
represented by Carlos Eduardo Santos 78337 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Oscar Ramirez Garcia PRO SE

Rey De Leon Merida TERMINATED: 05/05/2020 Petitioner Luis Zhagnay-Saeteros TERMINATED: 05/21/2020 Petitioner Jewel Ahmed TERMINATED: 09/03/2020
Petitioner Mynor Jacinto-Ramirez TERMINATED: 05/05/2020 Petitioner Nelson Tisnado Diaz TERMINATED: 07/22/2020
Petitioner Kaiany Feliciano Da Silva TERMINATED: 03/10/2021
Petitioner Jose Hernandez Mendez TERMINATED: 10/01/2020
Petitioner Cleberson Quadrelli TERMINATED: 06/18/2020

represented by Rey De Leon Merida PRO SE
represented by Luis Zhagnay-Saeteros PRO SE
represented by Jewel Ahmed 78433 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Mynor Jacinto-Ramirez PRO SE
represented by Nelson Tisnado Diaz Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Stephen A. Lagana (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen A. Lagana (See above for address) ATTORNEY TO BE NOTICED
represented by Anand Balakrishnan (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
David C. Fathi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eunice H. Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca A. Ojserkis (See above for address) TERMINATED: 10/02/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel L. McFadden (See above for address) ATTORNEY TO BE NOTICED
Jeffrey B. Rubin Law Office of Jeffrey Rubin One Center Plaza Suite 230 Boston, MA 02108 617-367-0077 Fax: 617-367-0071

Petitioner Brayan Arango Sepulveda
Petitioner Esquelin Montilla Soto TERMINATED: 01/11/2021
Petitioner Cristian Fernando Maza Charco TERMINATED: 06/30/2020 Petitioner

Email: jbr@rubinpom.com ATTORNEY TO BE NOTICED
Laura K. McCready (See above for address) ATTORNEY TO BE NOTICED
Susan B. Church (See above for address) ATTORNEY TO BE NOTICED
Todd C. Pomerleau Rubin Pomerleau PC One Center Plaza Suite 230 Boston, MA 02108 617-367-0077 Fax: 617-379-6282 Email: tcp@rubinpom.com ATTORNEY TO BE NOTICED
represented by Brayan Arango Sepulveda 76636 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Joanna S. Keefe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William Keefe (See above for address) ATTORNEY TO BE NOTICED

Rigoberto Castro Cortes TERMINATED: 06/30/2020
Petitioner You Xiajin TERMINATED: 05/05/2020 Petitioner Kawalpreet Singh TERMINATED: 08/06/2020
Petitioner Tareq Ahmed TERMINATED: 05/05/2020
Petitioner Ronnie Ssesanga TERMINATED: 05/05/2020 Petitioner Quraish Kiberu TERMINATED: 04/16/2020

represented by Rigoberto Castro Cortes 78783 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by You Xiajin PRO SE
represented by Kawalpreet Singh Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Tareq Ahmed 76930 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Ronnie Ssesanga PRO SE
represented by Irene C. Freidel PAIR Project 98 N. Washington Street Suite 106 Boston, MA 02114 United Sta 617-947-6349

Petitioner Selemun Meles TERMINATED: 09/11/2020
Petitioner Mohommad Ahmed TERMINATED: 06/16/2020
Petitioner Rahim Abdur TERMINATED: 06/16/2020
Petitioner Albano Slatineanu TERMINATED: 05/05/2020 Petitioner Santo Amador-Guerrero TERMINATED: 05/05/2020 Petitioner Rainer Mora-Polanco TERMINATED: 05/05/2020

Fax: 6177429385 Email: ifreidel@pairproject.org ATTORNEY TO BE NOTICED
represented by Selemun Meles 75696 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Mohommad Ahmed Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Joanna S. Keefe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Albano Slatineanu PRO SE
represented by Santo Amador-Guerrero PRO SE
represented by Rainer Mora-Polanco Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360

Petitioner
Abdy Nizeyimana TERMINATED: 08/06/2020

508-830-6200 PRO SE
represented by Anand Balakrishnan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew C. Glass K&L Gates LLP State Street Financial Center One Lincoln Street Boston, MA 02111-2950 617-261-3107 Fax: 617-261-3175 Email: andrew.glass@klgates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David C. Fathi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eunice H. Cho (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael K.T. Tan (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca A. Ojserkis

(See above for address) TERMINATED: 10/02/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher F. Warner K & L Gates LLP - MA One Lincoln Street State Street Financial Center Boston, MA 02111-2950 617-951-9208 Fax: 617-261-3175 Email: christopher.warner@klgates.com ATTORNEY TO BE NOTICED
Daniel L. McFadden (See above for address) ATTORNEY TO BE NOTICED
Laura K. McCready (See above for address) ATTORNEY TO BE NOTICED
Molly R. Maidman K & L Gates LLP - MA One Lincoln Street State Street Financial Center Boston, MA 02111-2950 617-951-9205 Email: molly.maidman@klgates.com ATTORNEY TO BE NOTICED
Susan B. Church (See above for address) ATTORNEY TO BE NOTICED
William Shaw McDermott K & L Gates LLP - MA One Lincoln Street State Street Financial Center Boston, MA 02111-2950 617-261-3120 Fax: 617-261-3175

Petitioner Sandeep Singh TERMINATED: 06/30/2020 Petitioner Maninder Singh TERMINATED: 11/23/2020
Petitioner Nazim Khan TERMINATED: 09/03/2020
Petitioner Sakhawat Hossain
Petitioner Nassim Nezali TERMINATED: 11/17/2020
Petitioner

Email: shaw.mcdermott@klgates.com ATTORNEY TO BE NOTICED
represented by William Keefe (See above for address) ATTORNEY TO BE NOTICED
represented by Joanna S. Keefe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nazim Khan 75049 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Sakhawat Hossain Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Nassim Nezali Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE

Jagmohan Jagmohan TERMINATED: 07/30/2020
Petitioner Patrick Decon Katambwa Petitioner Mohammad Rasal Ahmed TERMINATED: 06/16/2020
Petitioner Cesar Peloso Benitez TERMINATED: 07/27/2020
Petitioner Aparisio Gomez Lopez

represented by Jagmohan Jagmohan Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Mohammad Rasal Ahmed 78437 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Cesar Peloso Benitez 78087 Plymouth County Correctional Facility 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
Oriosto Medrano Santana Oriosto Medrano Santana One Boston Place Boston, MA 02110 617-519-0604 Email: ottomedrano@yahoo.com TERMINATED: 07/27/2020 ATTORNEY TO BE NOTICED
represented by Joanna S. Keefe (See above for address) ATTORNEY TO BE NOTICED

Petitioner Milton Gueso-Garcia TERMINATED: 08/06/2020
Petitioner Gloire Kikweta TERMINATED: 01/29/2021 Petitioner Welo Lombo TERMINATED: 01/29/2021
Petitioner Jose Paguay Pomavilla TERMINATED: 11/23/2020
Petitioner Damian Ramirez Lopez TERMINATED: 11/23/2020

represented by Milton Gueso-Garcia Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Joanna S. Keefe (See above for address) ATTORNEY TO BE NOTICED
represented by Welo Lombo Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Jose Paguay Pomavilla Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Damian Ramirez Lopez Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE

Petitioner Jonathan Reyes Castillo TERMINATED: 09/28/2020
Petitioner Rudy Salguero-Sanchez TERMINATED: 10/01/2020
Petitioner Jaskaran Singh TERMINATED: 08/06/2020
Petitioner Karanbir Singh TERMINATED: 08/06/2020
Petitioner Kabombo Mafuta Vasco

represented by Jonathan Reyes Castillo Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Rudy Salguero-Sanchez Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Jaskaran Singh Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Karanbir Singh Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Kabombo Mafuta Vasco Plymouth County Correctional Facility

Petitioner Edras Lopez De La Cruz TERMINATED: 09/28/2020 Petitioner Argelio Pedroza Cante TERMINATED: 10/01/2020
Petitioner Carlos Perez TERMINATED: 10/01/2020
Petitioner Juan Carlos Tovar-Sanchez TERMINATED: 09/03/2020
Petitioner Jose Medeiros TERMINATED: 08/24/2020

C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Joanna S. Keefe (See above for address) ATTORNEY TO BE NOTICED
represented by Argelio Pedroza Cante Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Carlos Perez Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Juan Carlos Tovar-Sanchez Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Jose Medeiros Plymouth County Correctional

Petitioner Rogni Odalis Nunez-Perez TERMINATED: 09/17/2020 Petitioner Ubaldo Perez-Munoz TERMINATED: 10/16/2020 Petitioner Washington Da Silva TERMINATED: 09/28/2020 Petitioner Ayoub Haddad TERMINATED: 12/04/2020
Petitioner Wendensir Nolasco-Mendez TERMINATED: 11/23/2020 Petitioner Acxel Chavez-Esteban TERMINATED: 12/04/2020 Petitioner Rafael Vicente Aguilon-Gusman TERMINATED: 12/04/2020 Petitioner

Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE
represented by Ayoub Haddad Plymouth County Correctional Facility C-3 26 Long Pond Road Plymouth, MA 02360 508-830-6200 PRO SE

Jaido Osbely Lopez-Solis TERMINATED: 01/22/2021
Petitioner Heber Misael Mendez-Chavez TERMINATED: 10/01/2020
Petitioner Sirley Amancio TERMINATED: 11/17/2020
Petitioner Jeremiah Kanene TERMINATED: 11/17/2020
Petitioner Consuelo Dominguez Agon TERMINATED: 11/23/2020
Petitioner Jorge Tenezca-Chuqui TERMINATED: 01/22/2021
Petitioner Daniel Silva Magalhaes TERMINATED: 12/04/2020
Petitioner Desmond Mitchell TERMINATED: 11/17/2020
Petitioner Bleck C Michel
Petitioner Rimanuel Aybar Santana TERMINATED: 01/11/2021
Petitioner Guilherme Mendes Altafin TERMINATED: 12/04/2020

Petitioner Clinton Grey Medina TERMINATED: 12/21/2020
Petitioner Eliomar Alves-De Oliveira
Petitioner Mario Oliveira Carvalho
Petitioner Arigo Miranda
Petitioner Angel Herrera Romero TERMINATED: 02/05/2021
Petitioner Luis Franco Herrera TERMINATED: 02/16/2021
Petitioner Luis Tejeda Ruis TERMINATED: 02/16/2021
Petitioner Noh Okubazhi
Petitioner Vladyslav Yeromin TERMINATED: 02/16/2021
Petitioner Malaquia Guillermo Santana
Petitioner Julio Minaya Montero TERMINATED: 03/10/2021
V.

Consolidated Defendant Todd Lyons Acting Field Office Director, U.S. Immigration and Customs Enforcement
V. Respondent John D. McDonald, Jr.
Respondent Antone Moniz Superintendent, Plymouth County Correctional Facility

represented by Jason C. Weida US Attorney's Office - MA J. Joseph Moakley U.S. Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617-748-3100 Email: jason.weida@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Goldstein United States Attorney's Office MA 1 Courthouse Way Suite 9200 Boston, MA 02210 (617) 748-3242 Email: rachel.goldstein@usdoj.gov TERMINATED: 01/15/2021 ATTORNEY TO BE NOTICED

Date Filed 04/07/2020
04/07/2020

# Docket Text
1 PETITION by Immigration and Customs Enforcement Detainees of Plymouth County Correctional Facility, filed by Pedro Wabibi Augusto.(Danieli, Chris) (Entered: 04/07/2020)
2 ELECTRONIC NOTICE of Case Assignment. Judge Allison D. Burroughs assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter

04/08/2020
04/10/2020 04/13/2020 04/13/2020 04/13/2020 04/13/2020
04/13/2020 04/13/2020 04/13/2020 04/13/2020 04/13/2020

will be transmitted to Magistrate Judge M. Page Kelley. (Danieli, Chris) (Entered: 04/07/2020)
3 Judge Allison D. Burroughs: ORDER entered. SERVICE ORDER re 2241 Petition. 1. Petitioners shall, within twenty-eight (28) days, pay the $5.00 filing fee. 2. Antone Moniz, Superintendent of PCCF, shall be substituted as the sole respondent. 3. The Clerk of this Court shall serve a copy of the petition upon Superintendent Moniz and the United States Attorney for the District of Massachusetts. 4. The respondent shall, no later than Wednesday, April. 15, 2020, file a response to the petition. (PSSA, 3) (Entered: 04/08/2020)
4 NOTICE of Appearance by Stephen A. Lagana on behalf of Felipe De Lima Moreira Barros, Jose Hernandez, Victor Silva Soares, Rogerio Pereira daSilva (Lagana, Stephen) (Entered: 04/10/2020)
5 NOTICE of Appearance by Irene C. Freidel on behalf of Kiberu Quraish (Freidel, Irene) (Entered: 04/13/2020)
6 NOTICE of Appearance by Christopher F. Warner on behalf of Abdy Nizeyimana (Warner, Christopher) (Entered: 04/13/2020)
7 NOTICE of Appearance by Daniel L. McFadden on behalf of Wilmer Espinal Alvarado (McFadden, Daniel) (Entered: 04/13/2020)
8 EMERGENCY Amended Petition for Writ of Habeas Corpus and Injunctive Relief against Antone Moniz, filed by Wilmer Espinal Alvarado. (Attachments: # 1 Exhibit A, # 2 Appendix)(McFadden, Daniel) Modified on 4/14/2020 to correct docket text to indicate emergency filing (McDonagh, Christina). (Entered: 04/13/2020)
9 DECLARATION re 8 Amended Complaint of Dr. Louis Golob by Wilmer Espinal Alvarado. (Attachments: # 1 Exhibit A)(McFadden, Daniel) (Entered: 04/13/2020)
10 DECLARATION re 8 Amended Complaint of Dr. Robert Greifinger by Wilmer Espinal Alvarado. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McFadden, Daniel) (Entered: 04/13/2020)
11 DECLARATION re 8 Amended Complaint of Michael Felsen, Esq. by Wilmer Espinal Alvarado. (McFadden, Daniel) (Entered: 04/13/2020)
12 DECLARATION re 8 Amended Complaint of Susan Church, Esq. by Wilmer Espinal Alvarado. (McFadden, Daniel) (Entered: 04/13/2020)
13 DECLARATION re 8 Amended Complaint of Matthew Segal, Esq. by Wilmer Espinal Alvarado. (Attachments: # 1 Exhibit A, # 2 Exhibit B,

04/13/2020 04/14/2020 04/14/2020 04/14/2020
04/14/2020 04/14/2020
04/15/2020 04/15/2020

# 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(McFadden, Daniel) (Entered: 04/13/2020)
14 NOTICE by Wilmer Espinal Alvarado re 8 EMERGENCY Amended Petition for Writ of Habeas Corpus and Injunctive Relief (McFadden, Daniel) (Entered: 04/13/2020)
15 NOTICE of Appearance by Susan B. Church on behalf of Wilmer Espinal Alvarado (Church, Susan) (Entered: 04/14/2020)
16 General Order 19-02, dated June 1, 2019 regarding Public Access to Immigration Cases Restricted by Federal Rule of Civil Procedure 5.2(c). (McDonagh, Christina) (Entered: 04/14/2020)
17 Judge Allison D. Burroughs: ORDER entered. SERVICE ORDER re Emergency Amended Petition 8 filed by Petitioner Espinal Alvarado. 1. The Clerk of this Court shall serve a copy of the emergency amended petition upon Superintendent Moniz and the United States Attorney for the District of Massachusetts. 2. The respondent shall, no later than Thursday, April. 16, 2020, file a response to Espinal Alvarados emergency amended petition. 3. The Clerk is not required to serve a paper copy of this order on any petitioner. (PSSA, 3) (Entered: 04/14/2020)
18 Remark. Emergency Amended Petition 8 and supporting declarations 9 , 10 , 11 , 12 , and 13 , sent by email to United States Attorney's Office (Ray Farquhar, Esq., Michael Sady, Esq., Ellen Souris) on 4/14/2020 @ 2:18pm. (PSSA, 3) (Entered: 04/14/2020)
19 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. "As allowed by Paragraph 4 of the Standing Procedural Order Regarding Public Access to Immigration Cases, the Court hereby allows immediate electronic access to the filings in this case. The parties may make filings under seal, with a redacted public version where appropriate and subject to review by the Court and are reminded to redact consistent with the requirements of Fed.R.Civ.P. 5.2(a). All other provisions of the Standing Procedural Order shall remain in effect. Further, the limitation on internet publication of paper copies during the first 30 days after filing, as set forth in Paragraph 3, is expanded to include the internet publication of documents obtained electronically during this same 30 day period." (PSSA, 5) (Entered: 04/14/2020)
20 NOTICE of Appearance by Jason C. Weida on behalf of Antone Moniz (Weida, Jason) (Entered: 04/15/2020)
21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim by Antone Moniz.(Weida, Jason) (Entered: 04/15/2020)

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22 MEMORANDUM in Support re 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Antone Moniz. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Weida, Jason) (Entered: 04/15/2020)
23 NOTICE of Appearance by Matthew Segal on behalf of Wilmer Espinal Alvarado (Segal, Matthew) (Entered: 04/15/2020)
24 NOTICE of Appearance by Adriana Lafaille on behalf of Wilmer Espinal Alvarado (Lafaille, Adriana) (Entered: 04/15/2020)
25 NOTICE of Appearance by Laura K. McCready on behalf of Wilmer Espinal Alvarado (McCready, Laura) (Entered: 04/15/2020)
26 NOTICE of Voluntary Dismissal by Kiberu Quraish (Freidel, Irene) (Entered: 04/16/2020)
27 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Alvarado Petition) by Antone Moniz.(Weida, Jason) (Entered: 04/16/2020)
28 MEMORANDUM in Support re 27 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Alvarado Petition) filed by Antone Moniz. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F (Under Seal), # 7 Exhibit G (Under Seal), # 8 Exhibit H (Under Seal), # 9 Exhibit I)(Weida, Jason) (Attachment 6 replaced on 4/17/2020) (McDonagh, Christina). (Attachment 7 replaced on 4/17/2020) (McDonagh, Christina). (Attachment 8 replaced on 4/17/2020) (McDonagh, Christina). (Entered: 04/16/2020)
29 Assented to MOTION to Seal Document Ex. F, Ex. G, and Ex. H to Respondent's Memorandum in Support of His Motion to Deny Alvarado's Petition (Doc. # 28) by Antone Moniz.(Weida, Jason) (Entered: 04/16/2020)
30 Assented to MOTION for Leave to File Excess Pages by Antone Moniz.(Weida, Jason) (Entered: 04/16/2020)
31 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 29 Motion to Seal Document (Folan, Karen) (Entered: 04/17/2020)
32 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 30 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF

04/21/2020 04/24/2020
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Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Folan, Karen) (Entered: 04/17/2020)
33 Notice of Supplemental Authorities re 27 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Alvarado Petition) (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 04/21/2020)
34 Mail Returned as Undeliverable. Mail sent to Ahmed Tareq, Ronnie Ssesanena, Ricardo Ramirez, Saltineanu Albano Ion, You Jia Xin, Rey Vinicio De Leon, Mynor Isauro Sacinto Rameriez, Henoud Rodriguez, Eduardo Oscar Garcia Ramirez, Alberto Veiez Chavez, Manuel B. Mizhirumbay, Rainer Mora, and Jose Rene Hernandez Gomes (McDonagh, Christina) (Entered: 04/24/2020)
35 Opposition re 27 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Alvarado Petition), 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Wilmer Espinal Alvarado. (McFadden, Daniel) (Entered: 04/26/2020)
36 DECLARATION re 35 Opposition to Motion, of Dr. Robert Greifinger by Wilmer Espinal Alvarado. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McFadden, Daniel) (Entered: 04/26/2020)
37 DECLARATION re 35 Opposition to Motion, of Dr. Katherine Peeler by Wilmer Espinal Alvarado. (Attachments: # 1 Exhibit A)(McFadden, Daniel) (Entered: 04/26/2020)
38 DECLARATION re 35 Opposition to Motion, of Matthew Segal, Esq. by Wilmer Espinal Alvarado. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(McFadden, Daniel) (Entered: 04/26/2020)
39 DECLARATION re 35 Opposition to Motion, of Natalie Santiago by Wilmer Espinal Alvarado. (McFadden, Daniel) (Entered: 04/26/2020)
40 DECLARATION re 35 Opposition to Motion, of Susan Church, Esq. by Wilmer Espinal Alvarado. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McFadden, Daniel) (Entered: 04/26/2020)
41 Mail Returned as Undeliverable. Mail sent to Hennry Ramos (McDonagh, Christina) (Entered: 04/28/2020)
42 MEMORANDUM in Support re 1 Petition by Pedro Wabibi Augusto (McDonagh, Christina) (Entered: 04/28/2020)

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43 MOTION for Leave to File Reply Memoranda by Antone Moniz.(Weida, Jason) (Entered: 04/28/2020)
44 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. On April 23, 2020, Judge Saris ordered Petitioner Espinal Alvarado released unless he received a bond hearing within 7 calendar days. No. 1:20-cv-10309-PBS, ECF No. 18. The parties are to advise the Court by end of day on April 30, 2020 as to whether Petitioner Espinal Alvarado received a bond hearing and whether he has been or is set to be released.(McDonagh, Christina) (Entered: 04/29/2020)
45 First Opposition re 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Abdy Nizeyimana. (Attachments: # 1 Exhibit Declaration of Christ Mavi Bafouana Mpandzou, # 2 Exhibit Maine State Court Docket, # 3 Exhibit, # 4 Exhibit)(Warner, Christopher) (Attachment 3 replaced on 4/29/2020) (McDonagh, Christina). (Attachment 4 replaced on 4/29/2020) (McDonagh, Christina). (Entered: 04/29/2020)
46 MOTION to Seal by Abdy Nizeyimana.(McDonagh, Christina) (Entered: 04/29/2020)
47 NOTICE of Appearance by Mary P. Holper on behalf of Evens Dry (Holper, Mary) (Entered: 04/29/2020)
48 Amended PETITION for Writ of Habeas Corpus (2241) Filing fee: $ 5, receipt number 0101-8218979 Fee status: Filing Fee paid., filed by Evens Dry. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Holper, Mary) (Entered: 04/29/2020)
49 Opposition re 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Evens Dry. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Holper, Mary) (Entered: 04/29/2020)
50 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 46 Motion to Seal (Folan, Karen) (Entered: 04/29/2020)
51 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 04/29/2020)
52 First Opposition re 27 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Alvarado Petition), 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Felipe De Lima Moreira Barros. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Lagana, Stephen) (Entered: 04/29/2020)

04/29/2020
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04/30/2020

53 First Opposition re 27 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Alvarado Petition), 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Rogerio Pereira daSilva. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Lagana, Stephen) (Entered: 04/29/2020)
54 First MEMORANDUM in Opposition re 27 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Alvarado Petition), 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Cleberson Quadrelli. (Attachments: # 1 Exhibit Notice to Alien of Interview for Review of Custody Status)(Rubin, Jeffrey) (Entered: 04/29/2020)
55 STATUS REPORT by Wilmer Espinel Alvarado. (McFadden, Daniel) (Entered: 04/29/2020)
56 STIPULATION of Dismissal by Wilmer Espinel Alvarado. (McFadden, Daniel) (Entered: 04/29/2020)
57 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent and Petitioner Espinal Alvarado's joint stipulation of dismissal, [ECF No. 56 ], Respondent's motion to dismiss as to Petitioner Espinal Alvarado, [ECF No. 27 ], is DENIED as moot. (McDonagh, Christina) (Entered: 04/30/2020)
ELECTRONIC NOTICE of Duplicate Filing Fee and Credit for Refund, for $5.00 paid on 04/29/2020, receipt number 0101-8218962. (Tran, Henry) (Entered: 04/30/2020)
58 First RESPONSE to Motion re 27 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Alvarado Petition), 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Felipe De Lima Moreira Barros, Jose Hernandez Mendez, Victor Silva Soares, Rogerio Pereira daSilva. (Attachments: # 1 Exhibit A) Declaration of Attorney Lagana, # 2 Exhibit B) Declaration of Jonathan Luis Golob, # 3 Exhibit C) Declaration of Dr. Greifinger, MD, # 4 Exhibit D) Declarattion of Dr. Greifinger, MD)(Lagana, Stephen) (Entered: 04/30/2020)
59 ELECTRONIC NOTICE of Hearing.
This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the

04/30/2020 04/30/2020 05/01/2020
05/01/2020
05/01/2020

technology, please notify the session's courtroom deputy as soon as possible.
Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://forms.mad.uscourts.gov/courtlist.html.
For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www .mad.uscourts.gov or contact media@mad.uscourts.gov.
Status Conference set for 5/1/2020 11:00 AM in Courtroom 17 before Judge Allison D. Burroughs only for Evens Dry, Rogerio Pereira DaSilva, Felipe De Lima Moreira Barros, Cleberson Quadrelli, Jose Hernandez Mendez, Abdy Nizeyimana and Victor Silva Soares who are the petitioners with ripe motions to dismiss.(Folan, Karen) Modified on 4/30/2020 to add Soares (Folan, Karen). (Entered: 04/30/2020)
60 NOTICE of Appearance by Todd C. Pomerleau on behalf of Cleberson Quadrelli (Pomerleau, Todd) (Entered: 04/30/2020)
61 STATUS REPORT Updated by Antone Moniz. (Weida, Jason) (Additional attachment(s) added on 5/1/2020: # 1 Unredacted Status Report) (McDonagh, Christina). (Entered: 04/30/2020)
62 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Respondent's motion for leave to reply, [ECF No. 43 ], is GRANTED in part and DENIED in part. Respondent may file a reply in connection with his motion to dismiss the petition as to all Petitioners. See [ECF No. 21 ]. The motion is otherwise denied as moot in light of Petitioner Espinal Alvarado's release. See [ECF Nos. 27 , 57 ]. (McDonagh, Christina) (Entered: 05/01/2020)
63 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Status Conference held on 5/1/2020. Colloquy re: motions to dismiss. Further hearing set for 5/5/20 at 10:30 a.m. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.)(Attorneys present: Weida, Warner, Rubin, Lagana, Pomerleau, Holper) (Folan, Karen) (Entered: 05/01/2020)
64 ELECTRONIC NOTICE of Hearing.
This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the

05/01/2020 05/01/2020 05/04/2020
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technology, please notify the session's courtroom deputy as soon as possible.
Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://forms.mad.uscourts.gov/courtlist.html.
For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www .mad.uscourts.gov or contact media@mad.uscourts.gov.
Further Status Conference set for 5/5/2020 10:30 AM in Courtroom 17 before Judge Allison D. Burroughs only for Evens Dry, Rogerio Pereira DaSilva, Felipe De Lima Moreira Barros, Cleberson Quadrelli, Jose Hernandez Mendez, Abdy Nizeyimana and Victor Silva Soares who are the petitioners with ripe motions to dismiss.(Folan, Karen) (Entered: 05/01/2020)
65 NOTICE of Appearance by Andrew C. Glass on behalf of Abdy Nizeyimana (Glass, Andrew) (Entered: 05/01/2020)
66 NOTICE of Appearance by William Shaw McDermott on behalf of Abdy Nizeyimana (McDermott, William) (Entered: 05/01/2020)
67 REPLY to Response to 21 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim filed by Antone Moniz. (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 05/04/2020)
68 NOTICE of Appearance by Jeffrey B. Rubin on behalf of Cleberson Quadrelli (Rubin, Jeffrey) (Entered: 05/04/2020)
69 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 05/05/2020)
70 NOTICE of Appearance by William Keefe on behalf of Cristian Fernando Maza Charco (Keefe, William) (Entered: 05/05/2020)
71 NOTICE of Appearance by William Keefe on behalf of Ramon Sanchez Vasquez (Keefe, William) (Entered: 05/05/2020)
72 NOTICE of Appearance by William Keefe on behalf of Pedro Cuba (Keefe, William) (Entered: 05/05/2020)
73 NOTICE of Appearance by William Keefe on behalf of Manuel CelaCaguana (Keefe, William) (Entered: 05/05/2020)

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74 NOTICE of Appearance by William Keefe on behalf of Sandeep Singh (Keefe, William) (Entered: 05/05/2020)
75 NOTICE of Appearance by Daniel L. McFadden on behalf of Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli (McFadden, Daniel) (Entered: 05/05/2020)
76 NOTICE of Appearance by Laura K. McCready on behalf of Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli (McCready, Laura) (Entered: 05/05/2020)
77 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. The petition, [ECF No. 1 ], is moot as to the following petitioners who are dismissed from this action: Miguel Carpio, Rey De Leon Merida, Hazem Khalil El Beshtawi, Rodrigue Henoud, Jose Rene Hernandez Gomes, Mynor Jacinto-Ramirez, Manuel Lema Mizhirumbay, Rainer Mora-Polanco, Pablo Navarette, Henry Navas-Ramos, Teofilo Niz Chilel, Ricardo Ramirez, Oscar Ramirez Garcia, Albano Slatineanu, Ronnie Ssesanga, Guadalupe Velez Chavez, You Xiajin, Tareq Ahmed and Santo Amador-Guerrero(McDonagh, Christina) (Entered: 05/05/2020)
78 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Status Conference held on 5/5/2020. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.)(Attorneys present: Weida, Lagana, Warner, Pomerleau, Rubin, McCreedy, McFadden, Keefe, Holper) (Folan, Karen) (Entered: 05/05/2020)
79 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. For the reasons set forth below, Respondent's motion to dismiss, [ECF No. 21 ], is DENIED.
The Court will first address Respondent's challenge to the Court's habeas jurisdiction. It is without question that habeas relief is available to Petitioners who seek release from their confinement. GonzalezFuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010) (stating that relief under § 2241 is available "[i]f the prisoner is seeking what can be fairly described as a quantum change in the level of custody" such as release or freedom subject to the constraints of bond or parole (quoting Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991))). Less clear is whether an individual may challenge the conditions of their confinementrather than the legality or duration of their confinementthrough a habeas petition. See Wilborn v. Mansukhani, 795 F. App'x 157, 163 (4th Cir. 2019) (discussing circuit split on the issue). Although many courts are reluctant to proceed on a conditions of confinement petition, the First Circuit has repeatedly stated in dicta that such petitions are not

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automatically barred from consideration. United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006) ("If the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available."); Brennan v. Cunningham, 813 F.2d 1, 4 (1st Cir. 1987) ("In Preiser, 411 U.S. at 499-500, the Court explicitly left open the possibility that a challenge to prison conditions, cognizable under § 1983, might also be brought as a habeas corpus claim."); Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977) ("Section 2241 provides a remedy for a federal prisoner who contests the conditions of his confinement....").
Although Respondent frames Petitioners' request as one that solely challenges the conditions of their confinement in light of the risks of COVID-19, [ECF No. 22 at 16-18], the Court notes that Petitioners have asked for several forms of relief, including release. See [ECF No. 1 ]; see also Verma v. Doll, No. 4:20-CV-00014, 2020 U.S. Dist. LEXIS 62429, at *9 (M.D. Pa. Apr. 9, 2020) ("[Petitioner] requests immediate release from custody based on what he perceives to be constitutionally deficient conditions of confinement that threaten his health and life. This is a habeas remedy."). Because Petitioners seek release as well as changes to the conditions of their confinement, the Court will exercise jurisdiction over their petition.
Respondent next challenges the petition as failing to state a claim on which relief may be granted. [ECF No. 22 at 18]. In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all wellpleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 80 (1st Cir. 2019). In light of the current pandemic and their continued detention, Petitioners have alleged facts sufficient to "state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); [ECF No. 1 ]. Although the parties have filed declarations in support of their respective positions on the motion to dismiss, additional discovery is necessary to determine whether the measures the Plymouth County Correctional Facility is taking are adequate to reasonably protect Petitioners based on the allegations raised in their petition.
Lastly, the Court will not address Petitioners' standing, as Respondent has withdrawn this as a basis for dismissal. See [ECF No. 61 -1 at 2].
(McDonagh, Christina) (Entered: 05/05/2020)
80 NOTICE of Appearance by Molly R. Maidman on behalf of Abdy Nizeyimana (Maidman, Molly) (Entered: 05/05/2020)

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81 Copy re 79 Order on Motion to Dismiss/Lack of Jurisdiction mailed to all Pro Se petitioners on 5/5/2020. (McDonagh, Christina) (Entered: 05/05/2020)
82 NOTICE of Appearance by Susan B. Church on behalf of Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli (Church, Susan) (Entered: 05/05/2020)
83 MOTION to Amend Petition by Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A)(McFadden, Daniel) (Entered: 05/05/2020)
84 MOTION to Certify Class by Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli.(McFadden, Daniel) (Entered: 05/05/2020)
85 MEMORANDUM in Support re 84 MOTION to Certify Class filed by Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A)(McFadden, Daniel) (Entered: 05/05/2020)
86 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Respondent is hereby ordered to notify the Court when a petitioner in this matter is removed, transferred, or released from Plymouth. (McDonagh, Christina) (Entered: 05/06/2020)
87 NOTICE of Appearance by Stephen A. Lagana on behalf of Hector Pojoy-Calel (Lagana, Stephen) (Entered: 05/06/2020)
88 RESPONSE TO COURT ORDER by Antone Moniz re 86 Order . (Weida, Jason) (Entered: 05/07/2020)
89 Copy re 86 Order mailed to all Pro Se petitioners on 5/8/2020. (McDonagh, Christina) (Entered: 05/08/2020)
90 NOTICE of Appearance by Stephen A. Lagana on behalf of Kaiany Feliciano Da Silva (Lagana, Stephen) (Entered: 05/08/2020)
91 NOTICE of Appearance by Stephen A. Lagana on behalf of Kaiany Feliciano Da Silva (Lagana, Stephen) (Entered: 05/08/2020)
92 Assented to MOTION for Leave to Appear Pro Hac Vice for admission of 6 Filing fee: $ 600, receipt number 0101-8236016 by Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Affidavit Affidavit of Anand V. Balakrishnan, # 2 Affidavit Affidavit of Eunice H. Cho, # 3 Affidavit Affidavit of David C. Fathi, # 4 Affidavit Affidavit of Omar C. Jadwat, # 5 Affidavit Affidavit of Rebecca A. Ojserkis, # 6 Affidavit Affidavit of Michael K. T. Tan)(McCready, Laura) (Entered: 05/11/2020)

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93 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 92 Motion for Leave to Appear Pro Hac Vice Added Anand V. Balakrishnan, Eunice H. Cho, David C. Fathi, Omar C. Jadwat, Rebecca A. Ojserkis and Michael K. T. Tan. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. Pursuant to Local Rule 83.5.3, local counsel shall also file an appearance in this matter. Further, local counsel shall review all filings and shall personally appear in Court for any hearings or conferences, unless expressly excused by the Court for good cause. (McDonagh, Christina) (Entered: 05/11/2020)

05/12/2020 94 NOTICE of Appearance by Rachel Goldstein on behalf of Antone Moniz (Goldstein, Rachel) (Entered: 05/12/2020)

05/12/2020 95 RESPONSE TO COURT ORDER by Antone Moniz re 86 Order . (Weida, Jason) (Entered: 05/12/2020)

05/12/2020

96 Notice of Supplemental Authorities re 84 MOTION to Certify Class , 83 MOTION to Amend Petition (Attachments: # 1 Savino Decision)(McFadden, Daniel) (Entered: 05/12/2020)

05/13/2020 97 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 05/13/2020)

05/15/2020 98 Letter/request (non-motion) from Two Detainees requesting to Join this case as Petitioners. (McDonagh, Christina) (Entered: 05/15/2020)

05/15/2020

99 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. The parties are hereby ordered to notify the Court by May 20, 2020 if they object to adding Nassim Nezali and Jagmohan Jagmohan as petitioners. See [ECF No. 98 ]. Nezali and Jagmohan indicate that they are also being held in Unit C3 at the Plymouth County Correctional Facility. [Id.]. (McDonagh, Christina) (Entered: 05/15/2020)

05/18/2020 100 Letter/request (non-motion) from Katambwa Patrick Ndaya to Join case. (McDonagh, Christina) (Entered: 05/18/2020)

05/18/2020

101 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. The parties are hereby ordered to notify the Court by May 20, 2020 if they object to adding Katambwa Patrick Ndaya as s petitioner. See [ECF No. 100 ]. Katambwa Patrick Ndaya indicates that they are also being held in Unit C3 at the Plymouth County Correctional Facility. [Id.].(McDonagh, Christina) (Entered: 05/18/2020)

05/19/2020 102 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 05/19/2020)

05/19/2020

103 RESPONSE TO COURT ORDER by Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli . (Attachments: # 1 Exhibit A)(McFadden, Daniel) (Entered: 05/19/2020)

05/19/2020 104 RESPONSE TO COURT ORDER by Antone Moniz re 86 Order . (Weida, Jason) (Entered: 05/19/2020)

05/19/2020 105 RESPONSE TO COURT ORDER by Antone Moniz re 101 Order, 99 Order, . (Weida, Jason) (Entered: 05/19/2020)

05/20/2020

106 RESPONSE to Motion re 83 MOTION to Amend Petition filed by Antone Moniz. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Weida, Jason) (Attachment 1 replaced on 5/21/2020) (McDonagh, Christina). (Entered: 05/20/2020)

05/20/2020 107 Assented to MOTION for Protective Order by Antone Moniz. (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 05/20/2020)

05/20/2020 108 Opposition re 84 MOTION to Certify Class filed by Antone Moniz. (Attachments: # 1 Exhibit A)(Goldstein, Rachel) (Entered: 05/20/2020)

05/20/2020

109 MOTION to Seal Document 106 Response to Motion Exhibit A (Compendium of Summaries) by Antone Moniz.(Weida, Jason) (Entered: 05/20/2020)

05/21/2020 110 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 109 Motion to Seal Document (McDonagh, Christina) (Entered: 05/21/2020)

05/21/2020 111 Assented to MOTION for Leave to File Excess Pages by Antone Moniz.(Goldstein, Rachel) (Entered: 05/21/2020)

05/21/2020

112 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Because the parties have not raised any objections, see [ECF Nos. 103 , 105 ], the clerk will add Nassim Nezali, Jagmohan Jagmohan, and Katambwa Patrick Ndaya as petitioners. (McDonagh, Christina) (Entered: 05/21/2020)

05/21/2020

113 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Petitioners filed a motion to amend. [ECF No. 83 ]. Respondent takes no position on the motion. [ECF No. 106 ]. The motion to amend, [ECF No. 83 ], is GRANTED. (McDonagh, Christina) (Entered: 05/21/2020)

05/21/2020 114 Copy re 113 Order on Motion to Amend, 112 Order, mailed to all Pro Se petitioners on 5/21/2020. (McDonagh, Christina) (Entered: 05/21/2020)

05/21/2020

115 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 111 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Folan, Karen) (Entered: 05/21/2020)

05/26/2020

116 Judge Allison D. Burroughs: ORDER entered. PROTECTIVE ORDER ENTERED, granting 107 Assented to MOTION for Protective Order filed by Antone Moniz.(McDonagh, Christina) (Entered: 05/26/2020)

05/26/2020 117 Copy re 116 Protective Order mailed to all Pro Se petitioners on 5/26/2020. (McDonagh, Christina) (Entered: 05/26/2020)

05/26/2020 118 Letter/request (non-motion) from a Detainee requesting to Join this case as Petitioners. (McDonagh, Christina) (Entered: 05/26/2020)

05/26/2020 119 AMENDED COMPLAINT (second) against Antone Moniz, filed by Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit, # 2 Appendix)(McCready, Laura) (Entered: 05/26/2020)

05/26/2020 120 Assented to MOTION for Leave to File Reply by Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A)(McCready, Laura) (Entered: 05/26/2020)

05/26/2020 121 Assented to MOTION to Seal Document Declaration of Christopher F. Warner and Exhibits by Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli.(McCready, Laura) (Entered: 05/26/2020)

05/26/2020

122 DECLARATION re 120 Assented to MOTION for Leave to File Reply of Dr. Yonatan Grad and Emma Accorsi by Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McCready, Laura) (Entered: 05/26/2020)

05/26/2020

123 DECLARATION re 120 Assented to MOTION for Leave to File Reply of Jeffrey B. Rubin, Esq. by Evens Dry, Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A)(McCready, Laura) (Entered: 05/26/2020)

05/27/2020 124 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Edwin Patricio Allaico Morocho's request to join the petition, [ECF No. 118 ],

is DENIED. Mr. Allaico Morocho is being detained in a different unit at PCCF than the petitioners. Given the pending motion for class certification, [ECF No. 84 ], the Court will not expand the issues raised by petitioners to include other units. Mr. Allaico Morocho may file a separate complaint regarding the issues he raises in his request.(McDonagh, Christina) (Entered: 05/27/2020)

05/27/2020

125 Copy re 124 Order, mailed to all Pro Se petitioners and Edwin Patricio Allaico Morocho on 5/27/2020. (McDonagh, Christina) (Entered: 05/27/2020)

05/28/2020

126 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 120 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Folan, Karen) (Entered: 05/28/2020)

05/28/2020

127 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 121 Motion to Seal Document (Folan, Karen) (Entered: 05/28/2020)

05/28/2020 129 RESPONSE TO COURT ORDER by Antone Moniz re 86 Order . (Weida, Jason) (Entered: 05/28/2020)

05/28/2020 130 REPLY to Response to 84 MOTION to Certify Class filed by Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(McCready, Laura) (Entered: 05/28/2020)

06/02/2020 131 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 06/02/2020)

06/05/2020 132 Letter/request (non-motion) from Mohammad Rasel Ahmed. (McDonagh, Christina) (Entered: 06/05/2020)

06/07/2020 133 NOTICE of Appearance by Joanna S. Keefe on behalf of Maninder Singh (Keefe, Joanna) (Entered: 06/07/2020)
06/07/2020 134 NOTICE of Appearance by Joanna S. Keefe on behalf of Esquelin Montilla Soto (Keefe, Joanna) (Entered: 06/07/2020)
06/08/2020 135 Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Movants' motion for class certification, [ECF No. 84 ], is GRANTED.

The Court certifies the following class:

All civil immigration detainees who are Petitioners in this action (i.e., who signed the original petition, [ECF No. 1 ]) or are otherwise presently detained in Unit C-3 at the PCCF.

Movants, Petitioners Cleberson Quadrelli and Abdy Nizeyimana, are appointed class representatives and their counsel are appointed as class counsel.

SO ORDERED.(McDonagh, Christina) (Entered: 06/08/2020)
06/08/2020 136 Copy re 135 Memorandum & ORDER, mailed to all Pro Se petitioners on 6/12/2020. (McDonagh, Christina) (Entered: 06/08/2020)

06/08/2020 137 ELECTRONIC NOTICE of Hearing.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: www.forms.mad.uscourts.gov/courtlist.html.

For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

Status Conference set for 6/11/2020 01:00 PM in Courtroom 17 before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 06/08/2020)

06/08/2020

138 Emergency MOTION for Order to Halt Transfers of Class Members out of the District by Abdy Nizeyimana, Cleberson Quadrelli.(McFadden, Daniel) (Entered: 06/08/2020)

06/08/2020

139 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Currently pending before the Court is Petitioners' emergency motion [ECF 138 ] concerning the transfer of 8 members of the recently certified class. Respondent is ordered not to remove any Petitioners from this jurisdiction until further notice. Although the Court is generally aware of Respondent's position on the motion, Respondent has not yet filed anything on the record and the Court will not make a decision without giving Respondent an opportunity to do so. That being said, assuming that Respondent confirms on the record what he has represented in emails, the Court is likely to allow the three being

transferred to facilitate immediate removal to be removed from Plymouth. The clerk will set an initial hearing on the issue for Tuesday, June 9, 2020, at which time the Court may amend this order.(McDonagh, Christina) (Entered: 06/08/2020)

06/08/2020 140 ELECTRONIC NOTICE of Hearing. Hearing set for 6/9/2020 10:00 AM before Judge Allison D. Burroughs.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: www.forms.mad.uscourts.gov/courtlist.html.

For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

Hearing set for 6/9/2020 10:00 AM before Judge Allison D. Burroughs. (McDonagh, Christina) (Entered: 06/08/2020)

06/08/2020

141 Emergency MOTION Lift Court's Order With Respect To Three Petitioners Scheduled To Be Removed From Plymouth On June 9, 2020, at 4:00 AM re 139 Order,,, by Antone Moniz. (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 06/08/2020)

06/08/2020

142 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 141 Motion "Currently before the court is Respondents Emergency Motion to Lift the Courts Order Only as to Three Petitioners [ECF No. 141]. Specifically, Respondent seeks to be able to remove Petitioners Mohommad Ahmed, Mohammad Rasel Ahmed and Abdur Rahim from this jurisdiction early tomorrow morning to facilitate their removal to Bangladesh. Counsel for Petitioners take no position on the motion. The motion is allowed." (PSSA, 5) (Entered: 06/08/2020)

06/09/2020

143 Copy re 139 Order and 142 Order on Motion for Miscellaneous Relief mailed to all Pro Se petitioners on 6/12/2020. (McDonagh, Christina) (Entered: 06/09/2020)

06/09/2020 144 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Unless otherwise ordered by the Court, no Petitioner or class member shall be

moved outside the District of Massachusetts without providing the Court 48 hours' advance notice of the move and the reason therefor. Any such 48-hour notice period shall commence at the date and time such notice is filed and expire 48 hours later, except "[i]f the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday." Fed. R. Civ. P. 6(a)(2)(C).(McDonagh, Christina) (Entered: 06/09/2020)

06/09/2020

145 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Hearing held on 6/9/2020. Colloquy re: pending motion. Government will respond by Friday. Govt. will also be filing a motion to dismiss by Friday. Hearing originally set for 6/11/20 is canceled. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 06/09/2020)

06/09/2020 146 NOTICE of Appearance by Joanna S. Keefe on behalf of Rahim Abdur (Keefe, Joanna) (Entered: 06/09/2020)

06/10/2020

147 NOTICE of Pro Bono Attorney Appearance by Oriosto Medrano Santana on behalf of Cesar Peloso Benitez (Medrano Santana, Oriosto) (Entered: 06/10/2020)

06/12/2020 148 MOTION for Expedited Bail Hearings for Class Members by Abdy Nizeyimana, Cleberson Quadrelli.(McCready, Laura) (Entered: 06/12/2020)

06/12/2020

149 MEMORANDUM in Support re 148 MOTION for Expedited Bail Hearings for Class Members filed by Abdy Nizeyimana, Cleberson Quadrelli. (McCready, Laura) (Entered: 06/12/2020)

06/12/2020

150 DECLARATION re 148 MOTION for Expedited Bail Hearings for Class Members by Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(McCready, Laura) (Entered: 06/12/2020)

06/12/2020 151 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim [re Amended Class Petition] by Antone Moniz.(Weida, Jason) (Entered: 06/12/2020)

06/12/2020

152 MEMORANDUM in Support re 151 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim [re Amended Class Petition] filed by Antone Moniz. (Weida, Jason) (Entered: 06/12/2020)

06/12/2020 153 MEMORANDUM in Opposition re 138 Emergency MOTION for Order to Halt Transfers of Class Members out of the District filed by

Antone Moniz. (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 06/12/2020)

06/12/2020 155 Mail Returned as Undeliverable. Mail sent to Manuel MaldonadoMaldonado (McDonagh, Christina) (Entered: 06/15/2020)

06/14/2020

154 Assented to MOTION for Leave to File Reply Memorandum in support of Emergency Motion to Halt Transfers by Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A - Proposed Reply, # 2 Declaration of Laura Putnam, Esq., # 3 Declaration of Daniel McFadden, Esq.)(McFadden, Daniel) (Entered: 06/14/2020)

06/15/2020

156 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 154 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Folan, Karen) (Entered: 06/15/2020)

06/15/2020

157 REPLY to Response to 138 Emergency MOTION for Order to Halt Transfers of Class Members out of the District filed by Abdy Nizeyimana, Cleberson Quadrelli. (McFadden, Daniel) (Entered: 06/15/2020)

06/15/2020 158 DECLARATION re 157 Reply to Response to Motion of Laura Putnam, Esq. by Abdy Nizeyimana, Cleberson Quadrelli. (McFadden, Daniel) (Entered: 06/15/2020)

06/15/2020

159 DECLARATION re 157 Reply to Response to Motion of Daniel L. McFadden by Abdy Nizeyimana, Cleberson Quadrelli. (McFadden, Daniel) (Entered: 06/15/2020)

06/16/2020 160 RESPONSE TO COURT ORDER by Antone Moniz re 86 Order . (Weida, Jason) (Entered: 06/16/2020)

06/16/2020

161 RESPONSE TO COURT ORDER by Antone Moniz re 139 Order,,, Mooting Petitioners' Emergency Motion. (Weida, Jason) (Entered: 06/16/2020)

06/16/2020

162 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Petitioners' emergency motion for an order to halt transfer of class members out of the district, [ECF No. 138 ], is DENIED as moot in light of the Court's June 8, 2020 Order allowing the transfer of three Petitioners, [ECF No. 142 ], and Respondent's recent filing indicating that he does not intend to transfer any member of the Augusto class to Etowah, Alabama at this time, [ECF No. 161 ]. In addition, the Court's

June 8, 2020 Order which prohibits the removal of any Petitioner from this jurisdiction until further notice, [ECF No. 139 ], is lifted as Respondent is now required to provide the Court with 48 hours' advance notice prior to any transfers, [ECF No. 144 ].

In light of the potential for release or transfer of additional Petitioners, each time Respondent files a notice of intent to transfer or notice of release, Respondent shall also file a list of the names of those Petitioners who remain in Unit C-3.

(McDonagh, Christina) (Entered: 06/16/2020)
06/18/2020 163 RESPONSE TO COURT ORDER by Antone Moniz re 86 Order . (Weida, Jason) (Entered: 06/18/2020)

06/19/2020 164 Mail Returned as Undeliverable. Mail sent to Mohammad Rasal Ahmed. (McDonagh, Christina) (Entered: 06/19/2020)

06/19/2020 165 Mail Returned as Undeliverable. Mail sent to Rahim Abdur (McDonagh, Christina) (Entered: 06/19/2020)

06/19/2020 166 Mail Returned as Undeliverable. Mail sent to Rigoberto Castro Cortes (McDonagh, Christina) (Entered: 06/22/2020)

06/22/2020 167 RESPONSE TO COURT ORDER by Antone Moniz re 86 Order . (Weida, Jason) (Entered: 06/22/2020)

06/22/2020

168 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Consistent with the Court's June 16, 2020 Order, [ECF No. 162 ], Respondent is ordered to file a list of the names of those Petitioners who remain in Unit C-3.(McDonagh, Christina) (Entered: 06/22/2020)

06/22/2020

169 RESPONSE TO COURT ORDER by Antone Moniz re 86 Order AMENDED. (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 06/22/2020)

06/22/2020 170 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 06/22/2020)

06/23/2020

171 Notice of Supplemental Authorities re 148 MOTION for Expedited Bail Hearings for Class Members filed by Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A)(McCready, Laura) (Entered: 06/23/2020)

06/23/2020

172 DECLARATION re 148 MOTION for Expedited Bail Hearings for Class Members of Rev. Elizabeth Nguyen by Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A)(McCready, Laura)

(Additional attachment(s) added on 6/23/2020: # 2 Unredacted Declaration (FILED UNDER SEAL)) (McDonagh, Christina). (Entered: 06/23/2020)

06/23/2020 176 MOTION for Discovery on Expedited Schedule by Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A - Document Requests)(McFadden, Daniel) (Entered: 06/23/2020)

06/23/2020

177 MEMORANDUM in Support re 176 MOTION for Discovery on Expedited Schedule filed by Abdy Nizeyimana, Cleberson Quadrelli. (McFadden, Daniel) (Entered: 06/23/2020)

06/24/2020 180 NOTICE by Antone Moniz re 144 Order,, of Intent to Transfer and then Remove (Weida, Jason) (Entered: 06/24/2020)

06/24/2020 181 STATUS REPORT Updated by Antone Moniz. (Weida, Jason) (Entered: 06/24/2020)

06/26/2020

185 Opposition re 151 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim [re Amended Class Petition] filed by Abdy Nizeyimana, Cleberson Quadrelli. (McCready, Laura) (Entered: 06/26/2020)

06/26/2020

186 MOTION for Extension of Time to July 3, 2020 to File Response/Reply as to 148 MOTION for Expedited Bail Hearings for Class Members by Antone Moniz.(Weida, Jason) (Entered: 06/26/2020)

06/29/2020

187 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 186 Motion for Extension of Time to File Response/Reply re 148 MOTION for Expedited Bail Hearings for Class Members Responses due by 7/3/2020 (Folan, Karen) (Entered: 06/29/2020)

06/30/2020

188 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. By July 7, 2020, Respondent shall file a status update on Petitioners Cristian Fernando Maza Charco, Sandeep Singh, and Rigoberto Castro Cortes. These petitioners were not included in the list of individuals currently being held in Unit C-3 in the June 22, 2020 status update, [ECF No. 169 -1], but it also does not appear that the Court has been notified of their release or transfer.(McDonagh, Christina) (Entered: 06/30/2020)

06/30/2020 189 RESPONSE TO COURT ORDER by Antone Moniz re 188 Order,, Set Deadlines, . (Weida, Jason) (Entered: 06/30/2020)

07/03/2020 190 MEMORANDUM in Opposition re 148 MOTION for Expedited Bail Hearings for Class Members filed by Antone Moniz. (Attachments:

# 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Weida, Jason) (Attachment 3 replaced on 7/13/2020) (McDonagh, Christina). (Entered: 07/03/2020)

07/03/2020 191 Assented to MOTION for Leave to File Excess Pages Respondent's Opposition at Doc. # 190 by Antone Moniz.(Weida, Jason) (Entered: 07/03/2020)

07/06/2020

192 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 191 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Folan, Karen) (Entered: 07/06/2020)

07/07/2020 193 MEMORANDUM in Opposition re 176 MOTION for Discovery on Expedited Schedule filed by Antone Moniz. (Weida, Jason) (Entered: 07/07/2020)

07/08/2020 194 NOTICE by Antone Moniz re 144 Order,, and Response to Sealed Filing Dated June 25, 2020 (Weida, Jason) (Entered: 07/08/2020)

07/10/2020 195 Notice of Supplemental Authorities re 176 MOTION for Discovery on Expedited Schedule (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 07/10/2020)

07/10/2020

196 Assented to MOTION for Leave to File Reply Memorandum in Support of Motion for Bail Hearings by Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Proposed Reply, # 2 Suppl. Grad Decl., # 3 Second Suppl. Segal Decl.)(McFadden, Daniel) (Entered: 07/10/2020)

07/10/2020

197 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 196 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Folan, Karen) (Entered: 07/10/2020)

07/10/2020

198 REPLY to Response to 148 MOTION for Expedited Bail Hearings for Class Members filed by Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Suppl. Grad Decl., # 2 Second Suppl. Segal Decl.)(McFadden, Daniel) (Entered: 07/10/2020)

07/13/2020 199 Mail Returned as Undeliverable. Mail sent to Rocard Mbuma (McDonagh, Christina) (Entered: 07/13/2020)

07/15/2020

200 NOTICE by Abdy Nizeyimana re 176 MOTION for Discovery on Expedited Schedule, 148 MOTION for Expedited Bail Hearings for Class Members Regarding Supplemental Information (Attachments: # 1 McFadden Decl.)(McFadden, Daniel) (Entered: 07/15/2020)

07/16/2020 201 MOTION for Leave to File a Three-Page Sur-Reply by Antone Moniz.(Weida, Jason) (Entered: 07/16/2020)

07/17/2020

202 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 201 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Folan, Karen) (Entered: 07/17/2020)

07/17/2020 203 SUR-REPLY to Motion re 148 MOTION for Expedited Bail Hearings for Class Members filed by Antone Moniz. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Weida, Jason) (Entered: 07/17/2020)

07/20/2020

204 RESPONSE TO COURT ORDER by Antone Moniz re 162 Order on Motion for Order,,,, 86 Order . (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 07/20/2020)

07/21/2020 205 RESPONSE TO COURT ORDER by Antone Moniz re 162 Order on Motion for Order,,,, 86 Order . (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 07/21/2020)

07/22/2020

206 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 205 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the twelve civil detainees who were recently moved into Unit C-3 will be added to this docket as class members.

Petitioners Aparisio Gomez Lopez, Milton Gueso-Garcia, Gloire Kikweta, Welo Lombo, Jose Paguay Pomavilla, Damian Ramirez Lopez, Jonathan Reyes Castillo, Rudy Salguero-Sanchez, Jaskaran Singh, Karanbir Singh, Kabombo Mafuta Vasco and Edras Lopez De La Cruz added. Paul Atabong Fossem and Nelson Tisnado Diaz terminated.

(McDonagh, Christina) (Entered: 07/22/2020)

07/22/2020 207 RESPONSE TO COURT ORDER by Antone Moniz re 144 Order,, Notice of Intent to Transfer and then Remove. (Weida, Jason) (Entered: 07/22/2020)

07/27/2020 208 RESPONSE TO COURT ORDER by Antone Moniz re 144 Order,, . (Weida, Jason) (Entered: 07/27/2020)

07/27/2020 209 Letter/request (non-motion) from Cesar Peloso Benitez . (Medrano Santana, Oriosto) (Entered: 07/27/2020)

07/29/2020

210 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Petitioner Da Silva's motion for release on conditions, [ECF No. 183 ], is DENIED as moot. Petitioner was transferred for removal on July 16, 2020. [ECF No. 204 ]. (McDonagh, Christina) (Entered: 07/29/2020)

07/29/2020 211 RESPONSE TO COURT ORDER by Antone Moniz re 144 Order,, . (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 07/29/2020)

07/30/2020

212 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 211 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the four civil detainees who were recently moved into Unit C-3 will be added to this docket as class members. Argelio Pedroza Cante, Carlos Perez, Juan Carlos Tovar-Sanchez and Jose Medeiros added. Jagmohan Jagmohan terminated.(McDonagh, Christina) (Entered: 07/30/2020)

07/30/2020

213 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. By August 3, 2020, Respondent shall file a status update on Petitioners Milton Gueso-Garcia and Edras Lopez De La Cruz. These petitioners were not included in the list of individuals currently being held in Unit C-3 in the July 29, 2020 status update, [ECF No. 211 -1], but it also does not appear that the Court has been notified of their release or transfer.(McDonagh, Christina) (Entered: 07/30/2020)

07/31/2020 214 RESPONSE TO COURT ORDER by Antone Moniz re 144 Order,, Notice if Intent to Transfer and Remove. (Weida, Jason) (Entered: 07/31/2020)

08/03/2020 215 RESPONSE TO COURT ORDER by Antone Moniz re 144 Order,, . (Weida, Jason) (Entered: 08/03/2020)

08/03/2020 216 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 08/03/2020)

08/04/2020

217 MOTION to Seal Petitioner's Motion to File Motion for Release on Conditions Under Seal by Maninder Singh.(Keefe, Joanna) (Entered: 08/04/2020)

08/04/2020 218 MOTION to Seal Petitioner's Motion to File Motion for Release on Conditions Under Seal by Esquelin Montilla Soto.(Keefe, Joanna) (Entered: 08/04/2020)

08/04/2020 219 RESPONSE TO COURT ORDER by Antone Moniz re 213 Order, . (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 08/04/2020)

08/04/2020

220 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 217 Motion to Seal. Counsel will receive an email within twenty-four (24) hours of this order with instructions for submitting sealed documents for which leave has been granted in accordance with the Local Rules of the U.S. District Court of Massachusetts. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Folan, Karen) (Entered: 08/04/2020)

08/04/2020

221 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 218 Motion to Seal. Counsel will receive an email within twenty-four (24) hours of this order with instructions for submitting sealed documents for which leave has been granted in accordance with the Local Rules of the U.S. District Court of Massachusetts. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Folan, Karen) (Entered: 08/04/2020)

08/04/2020 222 MOTION to Seal Petitioner's Motion to File Motion for Release on Conditions Under Seal by Gloire Kikweta.(Keefe, Joanna) (Entered: 08/04/2020)

08/05/2020

223 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 219], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135], the civil detainee who was recently moved into Unit C-3, Rogni Odalis Nunez-Perez, will be added to this docket as a class member.(Folan, Karen) (Entered: 08/05/2020)

08/06/2020

224 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 222 Motion to Seal. Counsel will receive an email within twenty-four (24) hours of this order with instructions for submitting sealed documents for which leave has been granted in accordance with the Local Rules of the U.S. District Court of Massachusetts. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Folan, Karen) (Entered: 08/06/2020)

08/06/2020 225 RESPONSE TO COURT ORDER by Antone Moniz re 144 Order,, . (Weida, Jason) (Entered: 08/06/2020)

08/11/2020 229 RESPONSE TO COURT ORDER by Antone Moniz re 144 Order,, . (Goldstein, Rachel) (Entered: 08/11/2020)

08/13/2020

230 RESPONSE TO COURT ORDER by Antone Moniz re 144 Order,, Notice of Intent to Transfer and then Remove. (Weida, Jason) (Entered: 08/13/2020)

08/14/2020

231 Opposition re 222 MOTION to Seal Petitioner's Motion to File Motion for Release on Conditions Under Seal, 217 MOTION to Seal Petitioner's Motion to File Motion for Release on Conditions Under Seal, 218 MOTION to Seal Petitioner's Motion to File Motion for Release on Conditions Under Seal Omnibus Opposition to Four Class Members' Motions for Release filed by Antone Moniz. (Attachments: # 1 Exhibit A)(Weida, Jason) (Additional attachment(s) added on 8/14/2020: # 2 Exhibit A) (Folan, Karen). (Entered: 08/14/2020)

08/14/2020 232 Assented to MOTION to Seal Document 231 Opposition to Motion, Exhibit A (Doc. # 231-1) by Antone Moniz.(Weida, Jason) (Entered: 08/14/2020)

08/14/2020 233 RESPONSE TO COURT ORDER by Antone Moniz . (Attachments: # 1 Exhibit)(Goldstein, Rachel) (Entered: 08/14/2020)

08/14/2020 234 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 232 Motion to Seal Document (Folan, Karen) (Entered: 08/14/2020)

08/14/2020

235 NOTICE by Pedro Wabibi Augusto re 176 MOTION for Discovery on Expedited Schedule Regarding Supplemental Information (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(McCready, Laura) (Entered: 08/14/2020)

08/16/2020 236 NOTICE of Appearance by Joanna S. Keefe on behalf of Edras Lopez De La Cruz (Keefe, Joanna) (Entered: 08/16/2020)

08/16/2020 237 NOTICE of Appearance by Joanna S. Keefe on behalf of Morcos F Chaves Chaves (Keefe, Joanna) (Entered: 08/16/2020)

08/16/2020 238 NOTICE of Appearance by Joanna S. Keefe on behalf of Aparisio Gomez Lopez (Keefe, Joanna) (Entered: 08/16/2020)

08/16/2020 239 NOTICE of Appearance by Joanna S. Keefe on behalf of Pedro Wabibi Augusto (Keefe, Joanna) (Entered: 08/16/2020)

08/18/2020 240 Notice of Supplemental Authorities re 176 MOTION for Discovery on Expedited Schedule (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Weida, Jason) (Entered: 08/18/2020)

08/20/2020 241 NOTICE by Antone Moniz (Goldstein, Rachel) (Entered: 08/20/2020)

08/22/2020 242 NOTICE by Antone Moniz (Attachments: # 1 Exhibit A)(Goldstein, Rachel) (Entered: 08/22/2020)

08/24/2020

243 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status updates, [ECF Nos. 233 , 242 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainees who were recently moved into Unit C-3, Ubaldo PerezMunoz and Washington Da Silva, will be added to this docket as class members.(McDonagh, Christina) (Entered: 08/24/2020)

08/25/2020 244 Response by Abdy Nizeyimana to 240 Notice of Supplemental Authorities . (McCready, Laura) (Entered: 08/25/2020)

08/25/2020 245 NOTICE by Antone Moniz (Goldstein, Rachel) (Entered: 08/25/2020)

08/27/2020 246 NOTICE by Antone Moniz re 144 Order,, (Goldstein, Rachel) (Entered: 08/27/2020)

08/27/2020

247 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 245 ], and the Court;s June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainee who was recently moved into Unit C-3, Ayoub Haddad, will be added to this docket as a class member. (McDonagh, Christina) (Entered: 08/27/2020)

09/02/2020 248 NOTICE by Antone Moniz re 144 Order,, (Attachments: # 1 Exhibit Exhibit A)(Goldstein, Rachel) (Entered: 09/02/2020)

09/08/2020 249 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 09/08/2020)

09/10/2020 250 NOTICE by Antone Moniz re 86 Order (Goldstein, Rachel) (Entered: 09/10/2020)

09/10/2020 251 STATUS REPORT UPDATED by Antone Moniz. (Weida, Jason) (Entered: 09/10/2020)

09/11/2020

252 Notice of Supplemental Authorities re 176 MOTION for Discovery on Expedited Schedule, 151 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim [re Amended Class

Petition], 148 MOTION for Expedited Bail Hearings for Class Members and Request for Briefing Schedule on the Merits of Petitioners' Habeas Claim (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 09/11/2020)

09/15/2020 253 Response by Abdy Nizeyimana to 252 Notice of Supplemental Authorities, 251 Status Report . (Attachments: # 1 Exhibit A - Special Master's Report)(McCready, Laura) (Entered: 09/15/2020)

09/17/2020 254 NOTICE by Antone Moniz re 144 Order,, (Attachments: # 1 Exhibit)(Goldstein, Rachel) (Entered: 09/17/2020)

09/17/2020 255 Response by Antone Moniz to 253 Response to Petitioners' Notice of Supplemental Information. (Weida, Jason) (Entered: 09/17/2020)

09/18/2020

256 NOTICE by Pedro Wabibi Augusto re 176 MOTION for Discovery on Expedited Schedule Regarding Supplemental Information (Attachments: # 1 Exhibit A - Special Master's Report)(McCready, Laura) (Entered: 09/18/2020)

09/23/2020

257 Second Notice of Supplemental Authorities re 176 MOTION for Discovery on Expedited Schedule, 151 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim [re Amended Class Petition], 148 MOTION for Expedited Bail Hearings for Class Members (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 09/23/2020)

09/24/2020 258 NOTICE by Antone Moniz re 144 Order,, (Goldstein, Rachel) (Entered: 09/24/2020)

09/25/2020

259 NOTICE by Antone Moniz re 162 Order on Motion for Order,,,, (Attachments: # 1 Exhibit)(Goldstein, Rachel) (Entered: 09/25/2020)

09/28/2020

260 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 259 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainees who were recently moved into Unit C-3 Wendensir Nolasco-Mendez, Acxel Chavez-Esteban, Rafael Vicente Aguilon-Gusman, Jaido Osbely Lopez-Solis, and Heber Misael Mendez-Chavez will be added to this docket as class members. Galindo Martin-Solis, Jonathan Reyes Castillo, Washington Da Silva and Edras Lopez De La Cruz terminated.(McDonagh, Christina) (Entered: 09/28/2020)

10/01/2020 261 NOTICE by Antone Moniz re 86 Order (Attachments: # 1 Exhibit A)(Goldstein, Rachel) (Entered: 10/01/2020)

10/02/2020 262 MOTION to Withdraw as Attorney by Abdy Nizeyimana.(Ojserkis, Rebecca) (Entered: 10/02/2020)

10/02/2020 263 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 262 Motion to Withdraw as Attorney. Attorney Rebecca A. Ojserkis terminated (McDonagh, Christina) (Entered: 10/02/2020)

10/08/2020 264 NOTICE by Antone Moniz re 86 Order (Attachments: # 1 Exhibit)(Goldstein, Rachel) (Entered: 10/08/2020)

10/09/2020

265 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 264 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainees who were recently moved into Unit C-3 Sirley Amancio, Jeremiah Kanene, Consuelo Dominguez Agon, and Jorge Tenezca-Chuqui have been added to this docket as class members. Morcos F Chaves Chaves has been terminated.(McDonagh, Christina) (Entered: 10/09/2020)

10/13/2020 266 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 10/13/2020)

10/16/2020 267 NOTICE by Antone Moniz re 144 Order,, (Attachments: # 1 Exhibit)(Goldstein, Rachel) (Entered: 10/16/2020)

10/16/2020

268 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 267 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainee who was recently moved into Unit C-3 Daniel Silva Magalhaes will be added to this docket as a class member. Ubaldo Perez-Munoz terminated.(McDonagh, Christina) (Entered: 10/16/2020)

10/16/2020

269 Response by Abdy Nizeyimana to 266 Status Report . (Attachments: # 1 Exhibit A - Special Master's Report)(McCready, Laura) (Entered: 10/16/2020)

10/22/2020 270 NOTICE by Antone Moniz re 144 Order,, (Attachments: # 1 Exhibit)(Goldstein, Rachel) (Entered: 10/22/2020)

10/22/2020

271 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 270 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainee who

was recently moved into Unit C-3 Desmond Mitchell will be added to this docket as a class member.(McDonagh, Christina) (Entered: 10/22/2020)

10/22/2020 272 STATUS REPORT by Antone Moniz. (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 10/22/2020)

10/23/2020 273 Response by Abdy Nizeyimana to 272 Status Report . (Attachments: # 1 Exhibit A - Special Master's Report)(McCready, Laura) (Entered: 10/23/2020)

10/27/2020 274 STATUS REPORT UPDATED by Antone Moniz. (Weida, Jason) (Entered: 10/27/2020)

11/03/2020 275 NOTICE by Antone Moniz re 144 Order,, (Goldstein, Rachel) (Entered: 11/03/2020)

11/05/2020 276 NOTICE by Antone Moniz re 144 Order,, (Goldstein, Rachel) (Entered: 11/05/2020)

11/12/2020 277 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 11/12/2020)

11/13/2020 278 NOTICE by Antone Moniz re 144 Order,, (Attachments: # 1 Exhibit)(Goldstein, Rachel) (Entered: 11/13/2020)

11/16/2020 279 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 11/16/2020)

11/20/2020 280 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 11/20/2020)

11/20/2020 281 NOTICE by Antone Moniz re 144 Order,, (Attachments: # 1 Exhibit)(Goldstein, Rachel) (Entered: 11/20/2020)

11/20/2020 282 STATUS REPORT by Antone Moniz. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Weida, Jason) (Entered: 11/20/2020)

11/23/2020

283 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 281 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainees who were recently moved into Unit C-3 Michel Bleck, Rimanuel Aybar Santana, and Guilherme Mendes Altafin will be added to this docket as class members. Jose Paguay Pomavilla, Hector Pojoy-Calel, Damian Ramirez Lopez, Maninder Singh, Consuelo Dominguez Agon and Wendensir Nolasco-Mendez terminated.(McDonagh, Christina) (Entered: 11/23/2020)

11/25/2020 284 STATUS REPORT by Antone Moniz. (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 11/25/2020)

11/27/2020 285 NOTICE by Antone Moniz re 144 Order,, (Goldstein, Rachel) (Entered: 11/27/2020)
11/30/2020 286 MOTION for Hearing (Emergency Status Conference) by Abdy Nizeyimana, Cleberson Quadrelli. (Attachments: # 1 Exhibit A)(McFadden, Daniel) (Entered: 11/30/2020)

11/30/2020 287 ELECTRONIC NOTICE of Hearing.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://forms.mad.uscourts.gov/courtlist.html.

For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

Status Conference set for 12/1/2020 04:00 PM in Remote Proceeding : Boston before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 11/30/2020)

11/30/2020 288 Judge Allison D. Burroughs: ELECTRONIC ORDER entered granting 286 Motion for Hearing (Folan, Karen) (Entered: 11/30/2020)

12/01/2020 289 STATUS REPORT and Response to Petitioners' Motion for Emergency Status Conference by Antone Moniz. (Weida, Jason) (Entered: 12/01/2020)

12/01/2020

290 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Status Conference held on 12/1/2020. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 12/01/2020)

12/04/2020 291 NOTICE by Antone Moniz re 144 Order,, (Attachments: # 1 Exhibit A)(Goldstein, Rachel) (Entered: 12/04/2020)

12/04/2020 292 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 291 ], and the Court's

June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainees who were recently moved into Unit C-3 Clinton Grey Medina and Eliomar Alves-De Oliveira will be added to this docket as class members. Acxel Chavez-Esteban, Ayoub Haddad, Daniel Silva Magalhaes, Rafael Vicente Aguilon-Gusman and Guilherme Mendes Altafin terminated.(McDonagh, Christina) (Entered: 12/04/2020)

12/08/2020 293 STATUS REPORT by Antone Moniz. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Weida, Jason) (Entered: 12/08/2020)

12/14/2020 294 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 12/14/2020)

12/18/2020

295 NOTICE by Antone Moniz re 162 Order on Motion for Order,,,, (Attachments: # 1 Exhibit A)(Goldstein, Rachel) (Entered: 12/18/2020)

12/21/2020

296 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 295 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainees who were recently moved into Unit C-3 - Mario Oliveira Carvalho and Arigo Miranda - will be added to this docket as class members. Clinton Grey Medina terminated.(McDonagh, Christina) (Entered: 12/21/2020)

12/23/2020 297 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 12/23/2020)

01/08/2021 298 NOTICE by Antone Moniz re 144 Order,, (Attachments: # 1 Exhibit)(Goldstein, Rachel) (Entered: 01/08/2021)

01/08/2021 299 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 01/08/2021)

01/15/2021 300 NOTICE of Withdrawal of Appearance by Rachel Goldstein (Goldstein, Rachel) (Entered: 01/15/2021)

01/21/2021 301 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 01/21/2021)

01/21/2021 302 NOTICE by Antone Moniz of Two Additional Petitioners and Intend to Remove Three Petitioners (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 01/21/2021)

01/25/2021 303 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 01/25/2021)

01/25/2021 304 NOTICE by Antone Moniz re 302 Notice (Other) UPDATE (Weida, Jason) (Entered: 01/25/2021)

01/26/2021

305 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 304 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainees who were recently moved into Unit C-3 - Angel Herrera Romero and Luis Franco Herrera - will be added to this docket as class members.(McDonagh, Christina) (Entered: 01/26/2021)

01/28/2021 306 NOTICE by Antone Moniz of a Scheduled Transfer in Order To Execute A Final Order of Removal (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Weida, Jason) (Entered: 01/28/2021)

01/29/2021

307 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 306 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainees who were recently moved into Unit C-3 Luis Tejeda Ruis and Noh Okubazhi will be added to this docket as class members. Gloire Kikweta and Welo Lombo terminated.(McDonagh, Christina) (Entered: 01/29/2021)

01/29/2021

308 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 306 ], indicating that Petitioner Gloire Kikweta has been released from PCCF, Petitioner's motion for release, [ECF No. 226 ], is DENIED as moot. (McDonagh, Christina) (Entered: 01/29/2021)

02/04/2021 309 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 02/04/2021)

02/04/2021

310 NOTICE by Antone Moniz of Intent to Transfer For Removal Thereafter, a Completed Transfer, and Two Additions (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 02/04/2021)

02/05/2021

311 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 310 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainees who were recently moved into Unit C-3 Vladyslav Yeromin and Malaquia Guillermo Santana will be added to this docket as class members. (McKillop, Matthew) (Entered: 02/05/2021)

02/11/2021 312 ELECTRONIC NOTICE of Hearing.

This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://forms.mad.uscourts.gov/courtlist.html.

For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.

Status Conference set for 2/23/2021 10:00 AM in Remote Proceeding : Boston before Judge Allison D. Burroughs. (Folan, Karen) (Entered: 02/11/2021)
02/12/2021 313 NOTICE by Antone Moniz of Releases and an Update (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Weida, Jason) (Entered: 02/12/2021)
02/12/2021 314 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 02/12/2021)

02/23/2021 315 NOTICE by Antone Moniz One Additional Class Member (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 02/23/2021)

02/23/2021 316 STATUS REPORT by Antone Moniz. (Weida, Jason) (Entered: 02/23/2021)

02/23/2021

317 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs: Status Conference held on 2/23/2021. Colloquy re: motion to dismiss. Govt. will have 2 weeks to supplement motion. Plaintiff will have 2 weeks after govt. files to supplement their briefing. (Court Reporter: Joan Daly at joanmdaly62@gmail.com.) (Folan, Karen) (Entered: 02/23/2021)

02/23/2021

318 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of Respondent's recent status update, [ECF No. 315 ], and the Court's June 8, 2020 Order certifying "civil immigration detainees who are... presently detained in Unit C-3," [ECF No. 135 ], the civil detainee who was recently moved into Unit C-3, Julio Minaya Montero, will be added to this docket as a class member. (McDonagh, Christina) (Entered: 02/23/2021)

03/02/2021

319 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of topics discussed at the February 23, 2021 status conference, [ECF No. 317 ], the pending motions for discovery and bail hearings, [ECF Nos. 148 , 176 , 179 ], are DENIED with leave to renew. (McDonagh, Christina) (Entered: 03/02/2021)

03/03/2021 320 NOTICE by Antone Moniz of a Release and an Intent to Transfer and then Remove (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Weida, Jason) (Entered: 03/03/2021)

03/09/2021 321 NOTICE by Antone Moniz of a Release and a Transfer for Removal Thereafter (Attachments: # 1 Exhibit A)(Weida, Jason) (Entered: 03/09/2021)

03/09/2021

322 Supplemental MEMORANDUM in Support re 151 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim [re Amended Class Petition] filed by Antone Moniz. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Weida, Jason) (Entered: 03/09/2021)

03/09/2021 323 STATUS REPORT Joint by Eliomar Alves-De Oliveira. (McCready, Laura) (Entered: 03/09/2021)

03/10/2021

324 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. In light of the parties' recently filed joint status report indicating their intention to file a joint motion to dismiss, [ECF No. 323 ], Respondent's earlierfiled motion to dismiss, [ECF No. 151 ], is DENIED with leave to renew. (McDonagh, Christina) (Entered: 03/10/2021)

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

WILMER ESPINAL ALVARADO Petitioners, v.
ANTONE MONIZ, Respondent.

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Civil Action No. 20-10685-ADB

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RESPONDENT’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO DENY PETITIONER’S HABEAS PETITION

Dated: April 16, 2020

ANDREW E. LELLING United States Attorney
JASON C. WEIDA Assistant U.S. Attorney
United States Attorney’s Office John Joseph Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 jason.weida@usdoj.gov
Attorneys for the Government

Case 1:20-cv-10685-ADB Document 28 Filed 04/16/20 Page 2 of 23
Respondent Antone Moniz, Superintendent of the Plymouth County Correctional Facility (“Respondent”), respectfully submits this memorandum of law in support of his motion to deny Petitioner Wilmer Espinal Alvarado’s (“Petitioner”) Emergency Amended Petition for Writ of Habeas Corpus and Injunctive Relief (the “Alvarado Petition”) (Doc. # 8) for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted.
BACKGROUND A. COVID-19 In Massachusetts.
On March 10, 2020, Governor Charlie Baker declared a state of emergency in Massachusetts based on the 2019 novel Coronavirus (“COVID-19”) that originated in Wuhan, China.1 As of April 16, 2020, there are 29,918 cases of COVID-19.2 Of those 29,918 cases of COVID-19 in Massachusetts, 2,308 cases are in Plymouth County.3 The population of Plymouth County is around 521,202.4 Based on those figures, less than half of one percent of the population in Plymouth County has COVID-19 (2,308 out of 521,202). The Town of Plymouth, where the Plymouth County Correctional Facility (“PCCF”) is located, has 108 cases of COVID-19.5 With a population of 60,803,6 less than 2/10th of one percent of the population of the Town of Plymouth has COVID-19 (108 out of 60,803).
1 See https://www.mass.gov/executive-orders/no-591-declaration-of-a-state-of-emergency -to-respond-to-covid-19 (last visited Apr. 14, 2020).
2 See https://www.mass.gov/doc/covid-19-cases-in-massachusetts-as-of-april-15-2020/ download (last visited Apr. 16, 2020).
3 See id. 4 See https://www.census.gov/quickfacts/plymouthcountymassachusetts (last visited Apr. 14, 2020) (estimate dated July 1, 2019). 5 See https://www.mass.gov/info-details/covid-19-cases-quarantine-and-monitoring (last visited Apr. 16, 2020) (link to Word document on webpage). 6 See https://www.census.gov/quickfacts/plymouthtownplymouthcountymassachusetts (last visited Apr. 16, 2020) (estimate dated July 1, 2018).
1

Case 1:20-cv-10685-ADB Document 28 Filed 04/16/20 Page 3 of 23
B. Efforts To Prevent Exposure To COVID-19 At The Plymouth County Correctional Facility. PCCF is a correctional facility that houses inmates and detainees, including detainees like
Petitioner here. The Plymouth County Sheriff’s Department (“Department”) operates the PCCF.
See Decl. of Joseph D. McDonald, Jr., attached as Exhibit A hereto, ¶ 2. The Department has a
contract with the Correctional Psychiatric Services (“CPS”) to provide comprehensive medical
services to inmates and detainees at the PCCF. See Decl. of Lawrence Baker, M.D., attached as
Exhibit B hereto, ¶ 1. The Department and CPS provide services to Petitioners pursuant to an
Inter-Governmental Service Agreement (“IGSA”) with the U.S. Department of Homeland
Security, Immigration and Customs Enforcement (“ICE”), and are monitored by the ICE Health
Service Corps (“IHSC”). See Decl. of Alan Greenbaum, attached as Exhibit C hereto, ¶¶ 3-4. As
described below, all three entities—the Department, CPS, and ICE—have endeavored and
succeeded through the present time to prevent exposure to inmates and detainees at PCCF.
1. The Plymouth County Sheriff’s Department Has Instituted Protocols At The Plymouth County Correctional Facility To Prevent Exposure to COVID-19.
Since the onset of COVID-19, the Department has instituted strict protocols at PCCF to
prevent exposure to inmates and detainees. Ex. A ¶ 5. Those protocols include the following:
• Beginning in February, the Department enhanced its inmate intake procedure to obtain additional information about travel and exposure to illness. Id. ¶ 6.
• The Department has adopted treatment and detection practices consistent with guidelines from the Centers for Disease Control and Prevention (“CDC”) and the Massachusetts Department of Public Health (“DPH”). The Department’s health services administrator is in frequent contact with DPH and consults them on the challenges facing the Department. Id.
• The Department suspended visits by friends, families, and volunteers. To assist with the transition, the Department arranged with its telephone vendors to provide two free calls per week. Id.
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Case 1:20-cv-10685-ADB Document 28 Filed 04/16/20 Page 4 of 23
• The Department restricted attorney visits to non-contact. The Department disabled monitoring and recording functions for visit phones. Id.
• The Department has kept non-essential staff from entering the Facility, consistent with Governor Baker’s order for executive staff. Id.
• The Department has ceased inmate assignments to the farm operation, community work crew, and other work details outside PCCF. Id.
• The Department has eliminated unnecessary movement within PCCF. Id.
• The Department established a housing unit for newly admitted inmates and inmates who leave and return to PCCF, to monitor for signs and symptoms of the virus. Inmates remain in the unit until they clear the incubation period. Id.
• The Department has worked with state trial court officials to limit travel outside PCCF by conducting hearings by videoconference and telephone. This greatly has reduced travel to and from PCCF and resulting potential exposure.
• The Department has changed recreation and meal schedules to provide more space in the dayrooms. Inmates and detainees in standard large and small housing units have split recreation schedules so that approximately half are permitted access to the day room at one time. The inmates and detainees have split meal periods, as well. Id.
• The Department maintains an aggressive cleaning schedule for the housing units and conducts daily sanitation of transportation vans. Id.
• The Department has educated staff and inmates on sanitation practices and proper social distancing. The Department provides soap to the inmates and detainees weekly and as needed. The Department also provides cleaning supplies. Id.
• The Department conducts temperature screenings for all employees, contractors, and visitors to PCCF. Id.
• The Department has provided surgical masks for all PCCF staff and inmates. Id.
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Case 1:20-cv-10685-ADB Document 28 Filed 04/16/20 Page 5 of 23
2. Correctional Psychiatric Services Deployed Clinical Guidelines To Prevent Exposure to COVID-19 At The Plymouth County Correctional Facility.
In addition to the Department’s protocols described above, CPS deployed a set of clinical
guidelines, titled CPS Clinical Guideline for COVID-19/CORONAVIRUS (“CPS Clinical
Guideline”), to educate and guide CPS staff, including the seven fulltime staff members at PCCF.
Ex. B ¶¶ 6, 8. “The CPS Clinical Guideline follows the most recent guidance pertaining to
correctional and detention facilities from the Centers for Disease Control and U.S. Immigration
and Customs Enforcement, as well as recommendations from the Massachusetts Department of
Public Health and the World Health Organization.” Id. ¶ 8.
Among other things, the CPS Clinical Guideline provides as follows:
• The CPS Clinical Guideline lists the possible symptoms of a COVID-19 infection and states that upon identification of any of those symptoms (i.e., fever, cough, shortness of breath, loss of smell or taste, sore throat, tiredness, or diarrhea) the patient should immediately be masked. Id. ¶ 9.
• The CPS Clinical Guideline provides that if a patient presents with fever and any other symptoms then the medical staff is to perform a rapid test for Influenza A and B. If the influenza test is negative, then medical staff is to test for COVID-19. If a COVID-19 test is positive, then staff are instructed to monitor vital signs, especially temperature and oxygen saturation twice a day; offer acetaminophen 650 mg. twice per day or as needed for coronavirus symptoms for one week; monitor the patient’s respiratory status to include oxygen saturation, trouble breathing, persistent chest pain or pressure, new onset of confusion or inability to arouse and any signs of cyanosis, and nurses are to notify the on-call doctor immediately if any symptoms are present and discuss possible transport to the local emergency room; and restrict patient movement unless emergent for anyone in isolation. Any movement while in isolation requires that staff wear a mask with shield, gloves and gown. Id. ¶ 10.
• The CPS Clinical Guideline also provides for the medical isolation of a patient with suspected COVID-19 infection be maintained until all the following criteria have been met:
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a. For individuals who will be tested to determine if they are still contagious: the individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND the individual’s other symptoms have improved (e.g., cough, shortness of breath) AND the individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart.
b. For individuals who will NOT be tested to determine if they are still contagious: the individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND the individual’s other symptoms have improved (e.g., cough, shortness of breath) AND at least 7 days have passed since the first symptoms appeared.
c. For individuals who had a confirmed positive COVID-19 test but never showed symptoms: At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND the individual has had no subsequent illness.
Id. ¶ 11.
• The CPS Clinical Guideline provides for restriction of patients from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. Id. ¶ 12.
In addition to the CPS Clinical Guideline, CPS has taken the following steps:
• New Detainee Screening. Upon receiving a new detainee/inmate, medical staff screen the individuals for signs and symptoms of infection. This includes event travel history, temperature checks, taking a recent medical history and observing the individual for any signs of sickness. If an individual appears symptomatic on admission a mask is applied immediately, the individual is placed in isolation and clinical care guidelines are followed (as outlined above) thereafter. Id. ¶ 18.
• Detainee Education and Monitoring. Nursing staff have also been instructed to use any detainee/inmate interaction as a time to educate the detainee/inmate regarding COVID-19, including that all inmates need to wash their hands frequently, avoid crowds and stay apart at least six feet whenever possible, and to report any shortness of breath or concerns of fever immediately to either nursing or security. Additionally, signs have been posted in all units in English, Spanish,
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Portuguese and Chinese, indicating that if a detainee/inmate feels sick, they should notify medical staff and have a mask applied immediately. Detainees and inmates are also being educated during medical encounters on the signs and symptoms of a COVID-19 infection. Id. ¶¶ 16-17.
• Monitoring of Vulnerable Detainees. CPS staff are monitoring and reviewing all detainees and inmates who are known to have chronic disease or other co-morbidities which would make them more susceptible to a COVID-19 infection. Id. ¶ 20.
• Staff Training and Supplies. COVID-19 health information has been posted in all units and visiting areas. Staff have access to CDC materials, including posting the link/url for the CDC website on all medical area computer equipment. A training website for CPS medical staff has been developed as well as a COVID-19 power point. Staff have access to masks, disinfectant/sanitizer and other personal protective equipment. Id. ¶ 15.
• Staff Precautions. CPS also is taking steps to ensure that staff do not inadvertently introduce COVID-19 into the facility by educating staff and screening them for raised temperatures or other signs of illness. Staff have been instructed not to work if they feel ill and to report any symptoms for follow up. Staff have also been educated regarding both their own protection as well as CDC guidelines for eliminating virus transmission. Id. ¶ 19.
3. ICE Provides Guidance To PCCF And The ICE Health Service Corps Monitors The Medical Care Provided To ICE Detainees At PCCF.
In addition to the above steps taken by the Department and CPS, ICE itself provides
monitoring and guidance to the medical staff at PCCF. Specifically, IHSC uses Field Medical
Coordinators who serve as medical consultants to the ICE field offices and monitor clinical
services provided at IGSA facilities that house ICE detainees, including PCCF. Ex. C ¶ 3.
Moreover, on April 10, 2020, ICE “released its ERO COVID-19 Pandemic Response Requirements
(PRR),” which is a guidance document for detention facilities housing ICE detainees, like PCCF.
Id. ¶ 5. As described above, CPS is complying with this guidance. See Ex. B.
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C. The Lack of Any COVID-19 Case Among Inmates And Detainees At The Plymouth County Correctional Facility. There is not currently, and has never been, a case of COVID-19 in the inmate and detainee
population at PCCF. Ex. A ¶ 7; Ex. B. ¶ 24; Ex. C ¶ 6. There has been one case of COVID-19 of a PCCF staff member. Ex. A ¶ 8; Ex. B. ¶ 25. That individual’s last day at PCCF was March 19, 2020. The individual did not have close contact with any inmates or detainees. Ex. A ¶ 8; Ex. B. ¶ 25. The staff members that had close contact with that individual were sent home and were not permitted to return to PCCF for at least 14 days. Ex. A ¶ 8; Ex. B. ¶ 25. To date, that is the only case of COVID-19 at PCCF. Ex. A ¶¶ 7-8; Ex. B. ¶¶ 24-25; Ex. C ¶ 6. D. The Multi-Petitioner Habeas Petition In This Case.
On April 7, 2020, Pedro Wabibi Augusto and sixty-four other immigration detainees (of which Petitioner here was one) filed a petition for a pro se writ of habeas corpus under 28 U.S.C. § 2241 (the “Augusto Petition”). Doc. # 1; see also Doc. # 3 (describing the Augusto Petition). The Augusto Petition alleged generally, without alleging facts specific to any one of the petitioners individually, that the petitioners’ detention increased their risk of COVID-19, see generally Doc. # 1, and sought the “release from detention” of all of the petitioners. Id. at p.7.
The 65 petitioners in the Augusto Petition are a diverse group of ICE detainees. As shown in the attached document, the petitioners are from a variety of countries and are detained under different statutes. See Compendium of Summaries, attached as Exhibit D hereto. Some are subject to mandatory detention based on criminal histories. Id. Some have been denied release by an immigration judge due to a finding of public safety or flight risk. Id. Some have final orders of removal that ICE is seeking to effectuate. Id. Most appear to be in good health. Id. Others have preexisting conditions that vary among them. Id. Some have pending habeas petitions in addition to this habeas case. Id.
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As of April 15, 2020, 58 of the original 65 petitioners in the Augusto Petition are still
detained at PCCF. See Ex. A ¶¶ 9, 12. The petitioners who are no longer detained at PCCF either
have been released on bond or transferred to other facilities. Ex. D. Of the 58 petitioners that
remain, 57 of them—including Petitioner here—are “housed in Unit C3, a large direct supervision
housing unit with a maximum capacity of 139 inmates. . . . As a result of the low population in the
unit, each detainee has his own cell.” Ex. A ¶ 9.
When those petitioners—including Petitioner here—are out of their cells, such as during
recreation and meals, the Department takes a variety of precautions. For example:
• Social Distancing During Recreation and Meals. To permit and encourage social distancing, the security staff spread out the day room chairs in the unit. The Department conducts split recreation, with each side of the unit entering the day room at different times. The split recreation periods provide much more space in the day room and offer significant opportunity for social distancing. The Department similarly provides meals for each side of the unit at different times. This provides detainees multiple seating options which provide significant opportunity for social distancing. Id. ¶ 10.
• Sanitation. At the end of each recreation period, unit workers sanitize the unit. Workers clean all tables, phones, day room chairs, showers, and cell door handles with 100 product multi-use disinfectant 256. Laundry workers clean all mop heads and cleaning rags every morning. Maintenance officers use Virex spray to disinfect showers, day room chairs, tables, phones, all door handles, and railings in the morning before recreation periods begin. A cleaning crew cleans all visit rooms and sally ports with Virex fogging spray. Id. ¶ 11.
• Sanitary Supplies. The Department provides the detainees soap weekly and as needed and provides the detainees the cleaning supplies they need. The detainees have access to the 100 product disinfectant to clean their cells. The Department provides toilet paper each week and as needed. The Department runs a laundry unit to keep clothing clean. Id.
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E. Petitioner Wilmer Espinal Alvarado.
1. Petitioner’s Detention, His General Medical Condition As Reported When He Was Detained, And His Medical Treatment While In Detention.
Petitioner, age 27, is a native and citizen of Honduras who entered the United States
without inspection at an unknown time and location. See Decl. of David Wesling, attached as
Exhibit E hereto, at ¶ 5. He entered into ICE custody on June 6, 2019, after being stopped by a
local police department for a motor vehicle violation. Id. ¶ 6. He is currently detained at PCCF.
Petitioner’s medical information that is relevant to this case is contained in the following
three documents submitted today under seal:
• Declaration of Marcia Norat, R.N., submitted under seal as Exhibit F. Ms. Norat is the Health Services Administrator at PCCF. Her declaration contains information about Petitioner’s medical history and treatment while in detention at PCCF, based on her review of Petitioner’s medical records and information from other relevant healthcare providers, including PCCF’s physician.
• Declaration of Alan Greenbaum, submitted under seal as Exhibit G. Mr. Greedbaum is an Assistant Field Office Director for ICE. His declaration contains information regarding Petitioner’s general medical condition as reported when he was detained and his medical treatment while in detention, based on his review of Petitioner’s medical records and information from PCCF.
• Petitioner’s Medical Records, submitted under seal as Exhibit H. In addition to the above declarations, Respondent is submitting Petitioner’s medical records themselves for the Court’s review.
As described in the above declarations, Petitioner’s healthcare providers attest, based on his
medical records and their observations while Petitioner has been in detention, that his “asthma
does not put him at increased risk to COVID-19.” Ex. F; Ex. G.
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2. Petitioner’s Habeas Case Currently Pending Before Judge Saris. Because Petitioner had no lawful basis to be in the United States when he was stopped, ICE detained him and served him with a Notice to Appear. Id. An immigration judge determined that Petitioner was subject to mandatory detention under 8 U.S.C. § 1226(c), and that the immigration judge therefore lacked jurisdiction to consider his request for a bond hearing. Id. Petitioner reserved appeal of the immigration court’s decision but did not perfect an appeal to the Board of Immigration Appeals (the “Board”). Id. On December 4, 2019, the immigration court ordered Petitioner be removed from the United States. Id. ¶ 13. Petitioner reserved appeal of that decision, and his appeal and motion to remand is currently pending with the Board. Id. On February 12, 2020, Petitioner filed a pro se habeas petition challenging his detention. See Alvarado v. Moniz, No. 20-10309-PBS (D. Mass.) (Doc. # 1). On February 20, 2020, an attorney entered a notice of appearance on his behalf (one of the same attorneys who represents him in the present case), and filed an amended petition. Id. (Doc. # 10). Among other things, Petitioner disputes that he is subject to mandatory detention under 8 U.S.C. § 1226(c), argues that he is entitled to a bond hearing under Brito v. Barr, No. 19-11314, 2019 WL 6333093 (D. Mass. Nov. 27, 2019), and argues that, if he were subject to mandatory detention, then his detention is unlawful and prolonged under Reid v. Donelan, 390 F. Supp. 3d 201 (D. Mass. 2019). On April 10, 2020, the government moved to dismiss Petitioner’s amended petition. Alvarado, No. 20-10309-PBS (Doc. # 15). The government argued, among other things, that the court lacked jurisdiction to review whether Petitioner was subject to mandatory detention under 8 U.S.C. § 1226(c). Alvarado, No. 20-10309-PBS (Doc. # 16) (citing Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455, 464-66 (D. Mass. 2010)). Petitioner has not yet responded to the government’s motion to dismiss, which currently remains pending before Judge Saris.
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3. The Alvarado Petition In This Case. On April 14, 2020, Petitioner, represented by lawyers from the American Civil Liberties Union and the same attorney who represents him in the habeas case pending before Judge Saris, filed the Alvarado Petition in this case. Doc. # 8. Unlike the Augusto Petition, which contained only general allegations without facts specific to any one of the petitioners individually, the Alvarado Petition is unique to Petitioner. See generally id. Specifically, the Alvarado Petition alleges that Petitioner “suffers from asthma,” that “[h]e is not safe within the PCCF,” and that “[h]is medical condition puts him at high risk of severe illness and death from COVID-19.” Id. ¶ 3. According to Petitioner, “the risk can only be reasonably mitigated by release to self-isolate in a home setting.” Id. ¶ 42; see also id. ¶ 49 (“The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible.”). Thus, Petitioner “seeks immediate release to a location where he may safely self-isolate for the duration of the COVID-19 outbreak.” Id. ¶ 5. On April 14, 2020, the same day the Alvarado Petition was filed, the Court ordered Respondent to respond within two days. Doc. # 17. This timely motion followed.
STANDARD OF REVIEW Because federal courts are considered courts of limited jurisdiction, “federal jurisdiction is never presumed.” Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998). Rather, “‘the party invoking the jurisdiction of a federal court carries the burden of proving its existence.’” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)). “Once a defendant challenges the jurisdictional basis for a claim under Rule 12(b)(1), the plaintiff bears the burden of proving jurisdiction.” Excel Home Care, Inc. v. U.S. Dep’t of Health & Human Servs., 316 B.R. 565, 567 (D. Mass. 2004). “In ruling on a motion to dismiss for lack of jurisdiction, ‘the district court must construe the complaint
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liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of plaintiff.’” Id. at 568 (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)). “That is not to say that this leniency eliminates the plaintiff’s burden of proving an appropriate jurisdictional basis. Indeed, a plaintiff cannot assert a proper jurisdictional basis ‘merely on unsupported conclusions or interpretations of law.’” Id. (quoting Murphy, 45 F.3d at 522).
Just as a plaintiff bears the burden of establishing subject matter jurisdiction, so too “the plaintiff bears the burden of plausibly alleging a viable cause of action” under Rule 8(a). Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st Cir. 2016). The “‘tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’” Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Iqbal, 556 U.S. at 678). Rather, “‘only a complaint that states a plausible claim for relief survives a motion to dismiss’” under Rule 12(b)(6). Id. (quoting Iqbal, 556 U.S. at 679).
ARGUMENT I. THE ALVARADO PETITION MUST BE DENIED
BECAUSE PETITIONER LACKS STANDING. As an initial matter, Petitioner lack standing. It is fundamental that the Constitution “confers limited authority on each branch of the Federal Government.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1546-47 (2016). As relevant here, the judicial power of the United States is limited to “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. “The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.’” Susan B. Anthony List v. Driehaus, 573 U.S.
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149, 157 (2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Standing thus “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). The standing inquiry also focuses on whether a particular plaintiff is the proper party to challenge government conduct. Raines v. Byrd, 521 U.S. 811, 818 (1997).
As the party invoking federal jurisdiction, a plaintiff must establish the three elements that constitute the “irreducible constitutional minimum” of standing: that (i) it suffered an injury in fact (ii) fairly traceable to the challenged government conduct (iii) that is likely to be redressed by a favorable judicial decision. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). Moreover, a plaintiff must “demonstrate standing for each claim [it] seeks to press and for each form of relief that is sought.” Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation omitted), remanded to Laroe Estates, Inc. v. Town of Chester, 693 F. App’x 69 (2d Cir. 2017). The standing inquiry is “especially rigorous” where, as here, a plaintiff asks a federal court “to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines, 521 U.S. at 819-20.
In this case, Petitioner has established neither injury in fact nor redressability. A. Petitioner Lacks Injury In Fact. To establish injury in fact, a plaintiff must first show that he or she suffered “‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). Injury in fact is a “constitutional requirement” and is the “[f ]irst and foremost” of standing’s three elements. Id. at 1547-48 (quoting Steel Co., 523 U. S. 83, 103 (1998)). To be “particularized” the injury “must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1.
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“Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be ‘concrete.’” Spokeo, Inc, 136 S. Ct. at 1548. A “concrete” injury must be “‘de facto’; that is, it must actually exist[,]” that is, it must be “real,” and not “abstract.” Id. While “the risk of real harm” may, in some circumstances, be sufficiently concrete, “imminence . . . cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes -- that the injury is ‘certainly impending.’” Lujan, 504 U.S. at 568.
Petitioner’s alleged harm—that his detention increases his risk of harm from COVID-19— is speculative based on the site-specific circumstances at PCCF. E.g., Spokeo, Inc., 136 S. Ct. at 1548 (injury in fact cannot be “conjectural or hypothetical”); Lujan, 504 U.S. at 568 (injury in fact cannot be “speculative”). There is not currently, and has never been, a case of COVID-19 in the inmate and detainee population at PCCF. Ex. A ¶ 7; Ex. B. ¶ 24. Although there has been one case of COVID-19 of a PCCF staff member, it has been 28 days since that individual was last at PCCF. Ex. A ¶ 7; Ex. B. ¶ 24. To put that into perspective, 28 days is more than five times the median incubation period (about five days) and double the CDC’s recommended quarantine period (14 days). Indeed, the fact that a staff member tested positive for COVID-19 in mid-March, and yet there are zero cases of COVID-19 in the inmate and detention population as of April 15, indicates that PCCF’s efforts are working. Those undisputed facts fatally undermine Petitioner’s claim that the efforts to prevent exposure to COVID-19 at PCCF are insufficient to the point where they require the highly extraordinary remedy of release.
In addition, Petitioners cannot meet the imminence requirement based on the specific facts of this particular case. E.g., Spokeo, Inc., 136 S. Ct. at 1548 (injury in fact must be “actual or imminent”); Lujan, 504 U.S. at 568 (injury in fact must be “certainly impending”). Petitioner is “housed in Unit C3, a large direct supervision housing unit with a maximum capacity of 139
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inmates. As of April 15, the count was 57. As a result of the low population in the unit, each detainee has his own cell.” Ex. A ¶ 9 (emphasis supplied). And, when Petitioner is outside of his cell, such as during recreation and meals, PCCF takes a variety of precautions that reasonably provide for adequate social distancing. Id. ¶¶ 10-11.
While Petitioner has reported having asthma, Petitioner’s own healthcare providers attest, based on his medical records and their observations while Petitioner has been in detention, that his “asthma does not put him at increased risk to COVID-19.” Ex. F; Ex. G. Petitioner submitted declarations in which a non-treating physician and his own lawyer with no stated medical training offered their opinions regarding Petitioner’s asthma and its associated risks. See Doc. # 10 ¶ 25 (non-treating physican); Doc. # 12 ¶¶ 5, 8 (lawyer). Even if those opinions were weighed equally against those of Petitioner’s own healthcare providers (and they should not be), they cannot manufacture injury in fact for Petitioner in light of the unique circumstances in this case: (1) the presence of a much earlier staff case that did not result in any cases among the detainee population, and (2) a separate cell for Petitioner.7
B. Petitioner’s Alleged Injury—A Heightened Risk For Serious Illness Or Death From COVID-19—Is Not Redressable By Release.
Separately, Petitioner lacks standing because his alleged injury—that he is subject to a heightened risk of death from COVID-19—will not be redressed by ordering his release. “Redressability requires an analysis of whether the court has the power to right or to prevent the claimed injury.” Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (Kennedy, J.). For
7 Thus, this case is materially distinguishable from other cases seeking similar relief. For example, none of these facts were present in Savino v. Souza, No. 20-10617, 2020 WL 1703844, (D. Mass. Apr. 8, 2020), where Judge Young found that the petitioners had standing. Id. at *4. There, Judge Young relied on different facts at the Bristol County House of Correction, where the petitioners slept in “a large room packed with rows of bunk beds.” Id. at *3.
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purposes of standing, a plaintiff’s injury is redressable where there is “a ‘substantial likelihood’ that the requested relief will remedy the alleged injury.” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (citation omitted). Petitioner’s desired relief— release from detention—will not ameliorate his claimed heightened risk of injury or death resulting from COVID-19, nor can release prevent him from contracting COVID-19.
Petitioner offers no proof—nor is Respondent aware of any—that his release from PCCF, a facility without a single case of COVID-19 in the inmate and detainee population, into Massachusetts, which has declared a state of emergency based on the COVID-19 crisis, or anywhere else, will reduce his risk of injury or death. See generally Doc. # 8. Although infection rates in Plymouth County are relatively low (less than half of one percent of the population), that rate is higher than zero—the current infection rate among inmates and detainees at PCCF.
Moreover, it cannot be overlooked that PCCF provides medical care at no cost to detainees, including Petitioner. By reason of his detention, Petitioner has greater access to robust medical care than many in the general public. Ordering his release from PCCF would leave Petitioner without his present access to health care and could put him at greater risk of serious complications in the event that he contracts COVID-19. As Dr. Baker attests generally in his declaration:
While it is clear that a prison setting poses particular challenges from an infectious disease stand-point, the risk of infection is tempered by the degree of control we have over access to the facility. We are screening incoming detainees/inmates carefully and taking steps to isolate them as necessary. We have a highly educated and trained staff that is acutely aware of the risks posed by the pandemic. We are also providing a level of medical care to the detainees/inmates that they are unlikely to receive outside of PCCF. Ex. B ¶ 21.
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Accordingly, for both of the above reasons—(1) that Petitioner lacks injury in fact, and (2) that the alleged injury is not redressable by release—the Alvarado Petition must be denied for lack of standing. Spokeo, Inc., 136 S. Ct. at 1548; Steel, 523 U.S. at 102-03; Lujan, 504 U.S. at 560. II. THE ALVARADO PETITION MUST BE DENIED BECAUSE PETITIONER
DOES NOT STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED. Even if the Court were to find that Petitioner has standing (and he does not), the relief he seeks is unavailable. Petitioner seeks “a Writ of Habeas Corpus or other suitable order for injunctive relief” resulting in his “immediate release, with appropriate conditions and precautionary public health measures.” Doc. # 8 at p.18 (paragraph “b” in the prayer for relief). In the meantime, while the Court is considering that issue, Petitioner seeks preliminary relief in the form of his “immediate interim release pending the Court’s consideration and resolution of this matter.” Id. (paragraph “a” in the prayer for relief). Based on the particular facts of this case, neither form of relief is available. A. Release As A Final Remedy Is Not Warranted Because Because
Petitioner Has Not Demonstrated A Violation Of The Fifth Amendment. When the government detains a person pursuant to an immigration violation, that person is a civil detainee. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). To evaluate the constitutionality of a pretrial detention condition under the Fifth Amendment, a district court must determine whether those conditions “amount to punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). Punishment may be shown through an express intent to punish or a restriction or condition that “is not reasonably related to a legitimate governmental objective.” Id. at 539; see also Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-74 (2015) (clarifying that “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose”). In addition, “when the State takes a person into its custody and holds him there against
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his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989).
Petitioner does not allege an express intent to punish him. See generally Doc. # 8. Nor can he dispute that preventing detained aliens from absconding, from harming the public, and ensuring that they appear for removal proceedings and their actual removal is a legitimate governmental objective. See Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018); Demore v. Kim, 538 U.S. 510, 520-22 (2003); Zadvydas v. Davis, 533 U.S. at 690-91. Thus, Petitioner may succeed on his Fifth Amendment claim only if his confinement is not reasonably related to a legitimate governmental objective or is excessive in relation to the legitimate governmental objective, see Kingsley, 135 S. Ct. at 2473-74, or if Respondent fails to provide for his reasonable safety, see DeShaney, 489 U.S. at 200.
Here, Petitioner has not made that showing and cannot do so as circumstances currently stand at PCCF. As described in the attached declarations, PCCF is taking active and substantial measures to respond to a challenging public health crisis, including giving Petitioner his own cell. Ex. A; Ex. B; Ex. C. Those measures create conditions that are reasonably related and not excessive in relation to the government’s interests in preventing flight and protecting public safety—especially when:
• Petitioner himself is subject to mandatory detention under 8 U.S.C. § 1226(c), Ex. D at pp. 8-9;
• ICE believes he is a public safety risk on account of his drug violation and a flight risk based upon his order of removal and failure to seek any relief from removal before the immigration court, id.; and
• Petitioner’s own healthcare providers attest that his “asthma does not put him at increased risk to COVID-19.” Ex. F; Ex. G.
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Moreover, PCCF’s measures generally track the recommendations of public health authorities, including the CDC. Ex. A; Ex. B; Ex. C.
Of course, the risk of contracting COVID-19, either in PCCF or elsewhere, cannot be entirely eliminated. But Respondent is not required to eliminate any risk to Petitioner. Rather, Respondent is required to provide for his reasonable safety. See DeSahney, 489 U.S. at 200. Because PCCF’s measures meet that standard, Petitioner’s claim under the Fifth Amendment fails.8 E.g., Kingsley, 135 S. Ct. at 2473; DeShaney, 489 U.S. at 199; Bell, 441 U.S. at 535.
B. The Court Lacks Authority To Grant Interim Release To A Habeas Petitioner Who Is Subject To Mandatory Detention Under § 1226(c).
Petitioner requests immediate release as a preliminmary remedy under Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001). Doc. # 8 ¶¶ 52-53. His reliance on Mapp is fundamentally misplaced. Mapp, decided in 2001, was a pre-REAL ID Act case where an alien had challenged his deportation proceedings, but not the validity of his detention, through a district court habeas petition. “The Real ID Act repealed the use of habeas petitions to challenge orders of removal; petitions for review filed in the courts of appeals are now the exclusive procedural vehicle for seeking review of such orders.” Elkimya v. Dep’t of Homeland Sec., 484 F.3d 151, 153 (2d Cir. 2007). “The core desideratum of the Real ID Act was to ‘restor[e] uniformity and order to the law[.]’” Id. (quoting H.R. Rep. No. 109-72, at 174 (2005)); see also Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005) (describing the Real ID Act’s jurisdictional modifications as “an effort to streamline
8 For the Court’s convenience, Respondent has prepared a compendium of decisions, most of which are unpublished, that reach the same or a similar result in cases seeking similar relief. See Compendium of Decisions, attached as Exhibit I hereto. Although all of those decisions will aid the Court as it considers these issues, Respondent points the Court in particular to the district court’s recent decision in Ramsundar v. Wolf, No. 20-42 (W.D.N.Y. Apr. 9, 2020), which found no due process violation because each of the petitioners with underlying conditions had his own cell, as all Petitioners do here (whether or not they have an underlying condition). The Ramsundar decision may be found on page 271 of Exhibit I.
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what the Congress saw as uncertain and piecemeal review of orders of removal, divided between the district courts (habeas corpus) and the courts of appeals (petitions for review)”).
Mapp expressly did not address whether aliens subject to § 1226(c) detention could be granted bail pending habeas review. Mapp, 241 F.3d at 228 n.10. In discussing the scope of the district court’s authority to release aliens on bail during the pendency of habeas proceedings, the Second Circuit explained that, “in some cases, detention without bail is a necessary feature of our deportation procedures,” and in such circumstances, “the burden lies on the political branches explicitly to instantiate such a system of detention, and to do so through the law.” Id. at 227. Congress did exactly that in § 1226(c): “§ 1226(c) mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings ‘only if’ the alien is released for witness protection purposes.” Jennings, 138 S. Ct. at 847 (emphasis supplied).
In § 1226(c), Congress enacted a “specific statutory provision[]” that expressly requires mandatory detention, i.e., § 1226(c), and that provision specifies only one circumstance in which an alien detained under that section may be released before the conclusion of removal proceedings—namely, only for witness-protection purposes. 8 U.S.C. § 1226(c)(2); Jennings, 138 S. Ct. at 847. As the Supreme Court recognized, “§ 1226(c) makes clear that detention of aliens within its scope must continue ‘pending a decision on whether the alien is to be removed from the United States.’ §1226(a).” Jennings, 138 S. Ct. at 846.
Accordingly, because Petitioner is subject to § 1226(c) detention, this Court lacks authority to grant him interim release under Mapp. See, e.g., 8 U.S.C. § 1226(c); Jennings, 138 S. Ct. at 846-47.9
9 Petitioner relies on Savino, 2020 WL 1703844, at *9, and Jimenez v. Wolf, No. 18-10225 (D. Mass. Mar. 26, 2020) (Doc. # 8-1), where two other sessions of this Court granted interim release under Mapp. Doc. # 8 ¶¶ 52-53. But neither of those decisions cited the Supreme Court’s
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III. ALTERNATIVELLY, THE ALVARADO PETITION SHOULD BE SEVERED AND TRANSFERRED TO JUDGE SARIS. Alternatively, if the Court does not dismiss the Alvarado Petition for lack or standing or
failure to state a claim (and it should), Respondent requests that this Court sever Petitioner from this case and transfer his petition to Judge Saris, who has been presiding over his other habeas case since February 2020. See Alvarado v. Moniz, No. 20-10309-PBS (D. Mass.). District courts have authority to sever petitioners from multi-petitioner habeas cases where, as here, the factual questions surrounding a particular petitioner’s request for relief require individualized analysis (i.e., Petitioner’s detention authority, his public safety and flights risks, and his underlying health condition).10 Moreover, two pending habeas proceedings before two different judges in the same
district raises concerns about judicial economy and the potential for confusion and conflicting orders. Because Petitioner’s first case has been pending with Judge Saris for over two months, the Alvarado Petition should be transferred to Alvarado v. Moniz, No. 20-10309-PBS (D. Mass.).
CONCLUSION For all of the foregoing reasons, Respondent respectfully requests that the Court deny the Alvarado Petition and dismiss him from the case. Alternatively, Respondent respectfully requests that the Court sever Petitioner from this case and transfer the Alvarado Petition to Alvarado v. Moniz, No. 20-10309-PBS (D. Mass.).
Respectfully submitted,
ANDREW E. LELLING,
opinion in Jennings nor grappled with whether a habeas petitioner, after Jennings, may extrapolate and apply the holding in Mapp to a case, like this one, involving § 1226(c) detention. For the reasons described in text above, Respondent submits that Petitioner may not do so.
10 E.g., Coughlin v. Rogers, 130 F.3d 1348, 1351–52 (9th Cir. 1997), cited by Cruz v. Bristol-Myers Squibb Co., PR, 699 F.3d 563, 568–69 (1st Cir. 2012), and Alston v. Town of Brookline, Massachusetts, No. 15-13987, 2016 WL 5745091, at *11–14 (D. Mass. Sept. 30, 2016).
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Dated: April 15, 2020

United States Attorney
By: /s/ Jason C. Weida Jason C. Weida Assistant U.S. Attorney United States Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, Massachusetts 02210 (617) 748-3180 Jason.Weida@usdoj.gov

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 Case 1:20-cv-10685-ADB Document 119 Filed 05/26/20 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________

)

CLEBERSON QUADRELLI, EVENS )

DRY, and ABDY NIZEYIMANA, on

)

behalf of themselves and all others

)

similarly situated,

)

)

Petitioners,

)

)

v.

)

)

ANTONE MONIZ, Superintendent of the )

Plymouth County Correctional Facility, )

)

Respondent.

)

)

C.A. No. 20-10685-ADB
Leave to File Granted May 21, 2020

SECOND AMENDED EMERGENCY PETITION FOR WRIT OF HABEAS CORPUS AND INJUNCTIVE RELIEF

1. The novel coronavirus that causes COVID-19 is spreading rapidly throughout the Massachusetts incarceration system. The virus is highly contagious. It has a multi-day incubation period during which an infected person shows no symptoms. The virus can be transmitted by asymptomatic people. The only known measures to mitigate its spread are impossible in communal living environments, including prisons and jails. As the City of New York Board of Correction has explained: “Given the nature of jails (e.g. dense housing areas and structural barriers to social distancing, hygiene, and sanitation), the number of patients diagnosed with COVID-19 is certain to rise exponentially.”1

1 https://www1.nyc.gov/assets/boc/downloads/pdf/News/covid-19/Letter-from-BOC-re-NYCJails-and-COVID-19-2020-03-21.pdf
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2. COVID-19 has been detected within the Plymouth County Correctional Facility (the “PCCF”). Multiple PCCF staff members have tested positive for the virus, as has at least one prisoner. The PCCF houses numerous civil immigration detainees in close quarters where “physical distancing,” avoiding shared surfaces and objects, and normal hygiene are impossible.
3. Petitioners Cleberson Quadrelli, Evens Dry, and Abdy Nizeyimana are civil immigration detainees at the PCCF. Mr. Dry and Mr. Nizeyimana have never been convicted of any crimes, and no final decision has been made as to whether or not they will be allowed to remain in the United States. Mr. Quadrelli has no criminal record except for non-violent motor vehicle offenses that occurred roughly a decade ago, and has a Petition for Review pending before the U.S. Court of Appeals for the First Circuit.
4. To protect themselves, these detainees seek immediate release to a location where they may safely self-isolate for the duration of the COVID-19 outbreak. Their release can be subject to GPS monitoring and any other conditions that the Court deems appropriate.
PARTIES 5. Petitioner Cleberson Quadrelli has been held in civil immigration detention since May 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility. 6. Petitioner Evens Dry has been held in civil immigration detention since July 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility. 7. Petitioner Abdy Nizeyimana has been held in civil immigration detainee since September 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility.
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8. Respondent Antone Moniz is the Superintendent of the Plymouth County Correctional Facility and is petitioners’ immediate custodian. He is sued in his official capacity only.
JURISDICTION AND VENUE 9. This Court has jurisdiction, including pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2241 (habeas jurisdiction), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause). 10. Venue is proper because each petitioner is detained in Massachusetts.
FACTS A. COVID-19 poses a grave risk of serious illness and death to everyone, and especially
to people over 50 and those with certain medical conditions. 11. The novel coronavirus responsible for the illness COVID-19 has led to a global pandemic. As of May 5, 2020, according to the World Health Organization, more than 3.5 million people have been diagnosed with COVID-19 around the world and almost 250,000 have
2
died. In the United States alone, there are well over a million confirmed COVID-19 infections, resulting in nearly 70,000 deaths.3 In Massachusetts, there have been 69,087 confirmed cases, and more than 4,000 people have died in just the last month and a half.4 These numbers are likely a substantial underestimate, due to the lack of availability of testing, as well as the multi-day incubation period during which people are infected but asymptomatic.
2 https://www.who.int/emergencies/diseases/novel-coronavirus-2019 3 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 4 https://www.mass.gov/doc/covid-19-dashboard-may-4-2020/download. The fatality rate over the last 45 days in Massachusetts alone is roughly the equivalent of a commercial airline crash occurring every other day.
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12. The rates of infection are exponential, not linear, meaning that for each person infected one day, the next day we should expect to see not one, but many more infections.
13. The virus is transmitted through droplets and on contaminated surfaces. Airborne transmission has also been documented. The average incubation period (time from infection to symptoms) has generally been reported to be around five days. Both symptomatic and asymptomatic people can transmit the virus.
14. Outcomes from COVID-19 vary from asymptomatic infection to death. In particularly vulnerable populations, the fatality rate is about 15 percent—meaning about one out of every seven people in this group who contract the illness will die. An even higher percentage will suffer serious illness.
15. Those who do not die may experience long-term harm. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity.
16. People over the age of 50 and those with certain medical conditions face elevated risk of severe illness and death from COVID-19. The medical conditions that increase the risk of serious COVID-19 disease include lung disease (including asthma), heart disease, chronic liver or kidney disease (including hepatitis and dialysis), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and pregnancy.
17. There is no approved and available vaccine to prevent contracting COVID-19. There is no known cure or anti-viral treatment for COVID-19 at this time. The only way to
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protect vulnerable people from serious health outcomes, including death, is to prevent them from being infected with the coronavirus.
18. Preventing infection currently requires steps such as “social distancing” (such as remaining physically separated from other people, and avoiding the use of shared objects and surfaces) and vigilant hygiene (such as frequently washing or sanitizing the hands). Distancing must occur before individuals display symptoms, as they may be contagious before they are symptomatic.
19. To reduce the spread of infection, state and federal governments have undertaken extraordinary measures to separate people and limit their interactions. In Massachusetts, for example, the Governor has declared a state of emergency, ordered the closure of all non-essential businesses, and prohibited gatherings of more than 10 people.5 The Governor also advised all residents to stay home and avoid all unnecessary travel and activities.6
20. Preventing COVID-19 is in the public interest. People with COVID-19 often require intensive medical interventions, including hospitalization, use of a ventilator, and other life support. Consequently, an outbreak of COVID-19 cases in any discrete location—whether in a nursing home, university, or incarceration facility—presents a serious risk of overwhelming the local medical resources upon which all residents rely.
5 https://www.mass.gov/doc/march-23-2020-essential-services-and-revised-gatheringsorder/download 6 https://www.mass.gov/news/governor-charlie-baker-orders-all-non-essential-businesses-tocease-in-person-operation
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B. Detainees at PCCF are at high risk for COVID-19 infection. 21. At present, there is no way to adequately protect people from COVID-19 in
communal living environments, particularly people who are medically vulnerable. For example, nursing homes—where staff are trained to prevent the spread of communicable diseases—have been the sites of some of the largest concentrated outbreaks of COVID-19 in the United States. More than 50% of all COVID-19 deaths in Massachusetts have occurred among residents of long-term care facilities.7
22. Similarly, COVID-19 is spreading rapidly through the Massachusetts incarceration system. To date, at least eight prisoners in Massachusetts state facilities have died from COVID-19.
23. In the Massachusetts Department of Correction (the “DOC”), the number of the incarcerated people who tested positive for COVID-19 has more than octupled in the last month, increasing from 40 to 351.
24. COVID-19 is also spreading through the county Houses of Correction. For example, the number of positive cases in the Essex and Middlesex county sheriffs’ departments (prisoners and staff) has more than doubled over the last two weeks to more than 70 cases each.8
25. The virus that causes COVID-19 is present in the PCCF. Multiple PCCF staff members and at least one PCCF inmate have tested positive for COVID-19.
7 https://www.mass.gov/doc/covid-19-dashboard-may-4-2020/download. 8 Real-time tracking available at: https://data.aclum.org/sjc-12926-tracker/. Additionally, nationwide, more than 600 confirmed cases have been reported in ICE detention facilities. See https://www.ice.gov/coronavirus. And the New York Times is currently tracking more than 10,000 cases in state prisons and detention facilities. See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.
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26. People incarcerated at the PCCF live in close quarters and rely on shared spaces to eat, sleep, shower, and use the bathroom. They cannot achieve the physical distancing needed to effectively prevent the spread of COVID-19. Similarly, the intensive hygiene practices necessary to prevent the spread of COVID-19 are impossible.
27. Immigration detainees at the PCCF are housed in several units, one of which is C3. Within each unit, people are held in cells with up to five bunks each. The unit takes meals together in a common area located immediately outside the cells. Although each cell has a toilet, the entire unit shares a communal bathroom, including several shared showers. The living area contains many metallic and plastic surfaces that detainees touch and breathe on, and as to which constant disinfection is impracticable. Correctional officers and staff rotate in and out of the unit. Detainees also regularly rotate in and out of the unit as they are arrested, released, or deported.
28. These conditions and the shared objects (furniture, bathrooms, sinks, etc.) increase the likelihood that COVID-19 will spread rapidly across the facility, infecting vulnerable detainees.
C. People must be released from ICE detention. 29. Because risk mitigation is the only known strategy that can protect people from
COVID-19, public health experts with experience in immigration detention and correctional settings have recommended the release of detainees from custody.
30. Recognizing these grave risks, courts have begun issuing orders requiring or urging the release of incarcerated people. In Massachusetts, the U.S. District Court recently ordered that an immigration detainee be released from the PCCF based on the “extraordinary circumstances” arising from the coronavirus pandemic. See Ex. A (Memorandum and Order
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(D.E. 507), Calderon Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 25, 2020)). The court has also certified a class of all civil immigration detainees held at the Bristol County House of Correction, and has ordered the interim release of dozens of detainees during the pendency of that action. See generally Savino v. Souza, No. 20-10617, 2020 WL 1703844 (D. Mass. Apr. 8, 2020) (“Savino Order”). And in New Hampshire, the U.S. District Court has similarly provisionally certified a class of immigration detainees and is considering expedited applications for interim release. See generally Gomes v. DHS, No. 20-453, 2020 WL 2113642 (D.N.H. May 4, 2020).
31. Similarly, the U.S. Court of the Appeals for the Ninth Circuit recently ordered the release of an immigrant from ICE detention in light of the dangers posed by the COVID-19 crisis. See, e.g., Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877 (9th Cir. Mar. 24, 2020) (Order) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”). Other U.S. District Courts have issued orders requiring that immigration detainees be released in light of the coronavirus pandemic. See, e.g., A.R. v. Decker, No. 20-3600 (D.N.J. Apr. 12, 2020); Bent v. Barr, No. 19-CV-06123, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020); Ortuno v. Jennings, No. 3:20-cv-02064-MMC, Dkt. No. 38 (N.D. Cal. Apr. 8, 2020); Toma v. Adducci, 20-cv-10829, Dkt. No. 29 (E.D. Mich. Apr. 9, 2020); L.O. v. Tsoukaris, 20-cv-2481, Dkt. No. 24 (D.N.J. Apr. 9, 2020); Hope v. Doll, No. 1:20-cv00562 (M.D. Pa. Apr. 7, 2020); Malam v. Adducci, No. 2:20-cv-10829 (E.D. Mich. Apr. 6, 2020) (“[T]he only reasonable response by Respondents is the release of Petitioner; any other response demonstrates a disregard of the specific, severe, and life-threatening risk to Petitioner from
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COVID-19.”); Nguyen v. Marin, No. 20-00646, Dkt. No. 10, (C.D. Cal. Apr. 3, 2020); Orders, Robles v. Wolf, No. 20-cv-627, Dkt. Nos. 32, 35, 36, 38, 39 (C.D. Cal. Apr. 2, 2020); Hernandez v. Wolf, 20-cv-617, Dkt. No. 17 (C.D. Cal. Apr. 1, 2020) (“Because of the highly contagious nature of the coronavirus and the, relatively high, mortality rate of COVID-19, the disease can spread uncontrollably with devastating results in a crowded, closed facility, such as an immigration detention center.”); Avendaño Hernandez v. Decker, No. 20-CV-1589, 2020 WL 1547459, at *4 (S.D.N.Y. Mar. 31, 2020); Thakker v. Doll, No. 20-00480 (M.D. Pa. Mar. 31, 2020); Fraihat v. Wolf, No. 20-00590 (C.D. Cal. Mar. 30, 2020); Castillo v. Barr, No. 20-00605, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020); Coronel v. Decker, No. 20-2472, 2020 WL 1487274, at *10 (S.D.N.Y. Mar. 27, 2020); Basank v. Decker, No. 20-2518, 2020 WL 1481503, at *7 (S.D.N.Y. Mar. 26, 2020).
32. Similarly, the Massachusetts Supreme Judicial Court recently established a rebuttable presumption of release for most pre-trial detainees accused of crimes, particularly those with medical vulnerabilities. See Slip Opinion, Committee for Public Counsel Services v. Chief Justice of the Trial Court, No. SJC-12926, at 29-30 (Apr. 3, 2020). And the Chief Justice of the Montana Supreme Court recently urged judges to “review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for non-violent offenses.”9 The Chief Justice of the South Carolina Supreme Court ordered that everyone held on bond in a non-capital case be released, unless there exists an “unreasonable danger” or
9 See Letter from Mike McGrath, Chief Justice of Montana Supreme Court, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), https://courts.mt.gov/ Portals/189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID-19%20032020.pdf?ver= 2020-03-20-115517-333 (emphasis added).
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“extreme flight risk.”10 And in New Jersey, after the Supreme Court ordered briefing and argument on why it should not order the immediate release of individuals serving county jail sentences, the Attorney General and County Prosecutors agreed to create an immediate presumption of release for every person serving a county jail sentence in New Jersey.11 Many other courts have taken similar steps, recognizing that public safety means ensuring the public’s health.12
D. Petitioners should be immediately released to a location where they can safely self-isolate under whatever conditions and supervision the Court deems appropriate. 33. Petitioner Cleberson Quadrelli has been held in civil immigration detention since
May 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility. Mr. Quadrelli has no criminal record except for non-violent motor vehicle offenses that occurred roughly a decade ago. He is currently seeking to re-open his removal proceedings on the grounds of legal error that resulted in the denial of his eligibility for cancellation of removal. He currently has a Petition for Review pending before the U.S. Court of Appeals for the First Circuit where the legal issue regarding his eligibility will be addressed. His removal is presently stayed by court order.
10 Memo from Chief Justice Beatty to Magistrates, Municipal Judges, and Summary Court Staff (Mar. 16, 2020), https://www.sccourts.org/whatsnew/displayWhatsNew.cfm?indexId=2461. 11 See https://www.aclu-nj.org/files/5415/8496/4744/2020.03.22__Consent_Order_Filed_Stamped_Copy-1.pdf; https://www.njcourts.gov/public/assets/COVIDproposedOTSC.pdf?c=PkD 12 See Appendix: Court Actions Across the Country to Reduce Incarceration in Light of Covid19.
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34. Petitioner Evens Dry has been held in civil immigration detention since July 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility. Mr. Dry has never been convicted of a crime.
35. Petitioner Abdy Nizeyimana has been held in civil immigration detainee since September 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility. Mr. Nizeyimana has never been convicted of a crime.
36. Continued detention in the PCCF puts petitioners at high risk of severe illness and death from COVID-19.
LEGAL FRAMEWORK A. Petitioners are entitled to constitutional due process protections against infectious
disease and death while detained. 37. The Eighth Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable safety.’” Helling v. McKinney, 509 U.S. 25, 33 (1993) (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)). Accordingly, “[i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Id. The Supreme Court has explicitly recognized that the risk of contracting a communicable disease may constitute such an “unsafe, life-threatening condition” that threatens “reasonable safety.” Id. 38. Immigration detainees, even those with prior criminal convictions, are civil detainees held pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
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39. For pretrial and civil detainees, due process “provides at least as much protection . . . as the Eighth Amendment provides for convicted inmates.” Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007) (emphasis added); accord Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990). Indeed, civil detainees, like petitioners here, are entitled to conditions of confinement that are superior to those of convicted prisoners. See Alves v. Murphy, 530 F. Supp. 2d 380, 387 (D. Mass. 2008); see also King v. Cty. of Los Angeles, 885 F.3d 548, 557 (9th Cir. 2018); Jones v. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004).
40. Consequently, under the Due Process Clause, pretrial and civil detainees, like petitioners, may not be subject to conditions that amount to punishment, including conditions that fail to “reasonably relate[] to a legitimate governmental objective.” Bell v. Wolfish, 441 U.S. 520, 539 (1979); accord Lyons v. Powell, 838 F.2d 28, 29 (1st Cir. 1988). Accordingly, the First Circuit has found that, at a minimum, detention conditions are unconstitutional where they: (1) objectively deny a minimal measure of necessities required for civilized living; and (2) are imposed with deliberate indifference to inmate health or safety. Surprenant v. Rivas, 424 F.3d 5, 18-19 (1st Cir. 2005); Reaves v. Dep’t of Corr., 333 F. Supp. 3d 18, 26 (D. Mass. 2018); Couchon v. Cousins, No. 17-10965, 2018 WL 4189694, at *6 (D. Mass. Aug. 31, 2018).
41. Additionally, the Due Process Clause protects detainees, like petitioners, not only from conduct amounting to deliberate indifference, but also from objectively unreasonable conduct that creates a risk to their safety. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472-73 (2015); Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018); Gordon v. Cty. of Orange, 888 F.3d 1118, 1120, 1122-25 (9th Cir. 2018). The language of Kingsley is broad—applying not only to use of excessive force by the government, but to government action generally, including actions involving medical treatment. See Gordon, 888 F.3d at 1124; see also Couchon, 2018
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WL 4189694, at *6 (noting that there is “much to be said” for the reasoning that extends Kingsley to conditions of confinement cases).
42. Regardless, under either the objective unreasonableness or deliberate indifference standard, petitioners should succeed on the merits of their claim. As a court in this district recently explained, “the virus is gravely dangerous to all of us,” and that harm is “more serious for some petitioners than for others.” See Savino Order at 21.
43. Further, to the extent relevant, it also clear that there are substitute measures that can achieve community safety and petitioners’ future appearance, absent continued detention. The Court can order release subject to home confinement, GPS monitoring, and other conditions that the Court deems appropriate.
44. But in all events, because the government has actual knowledge of the impending, preventable, and extreme risks that COVID-19 poses to petitioners (including death), their release is required under due process principles.
B. Release is the only relief that can adequately protect petitioners. 45. COVID-19 poses a serious risk to petitioners. It is highly contagious and can
cause severe illness and death. 46. The risk that COVID-19 poses to petitioners is known to Respondent. 47. Petitioners’ continued detention in the absence of appropriate or sufficient care
and protection constitutes deliberate indifference and is objectively unreasonable. 48. Medical experts for the Department of Homeland Security have also identified the
risk of COVID-19 spreading to ICE detention centers. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to the Department of Homeland Security, shared concerns about the specific risk to immigrant detainees as a result of COVID-19 with the agency.
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These experts warned of the danger of rapid spread of COVID-19 in immigration detention facilities. In a letter to Congress, Dr. Allen and Dr. Rich recommended that “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” They concluded that “acting immediately will save lives not of only those detained, but also detention staff and their families, and the community-at-large.”13
49. John Sandweg, a former acting director of ICE, has written publicly about the need to release nonviolent detainees because ICE detention centers “are extremely susceptible to outbreaks of infectious diseases” and “preventing the virus from being introduced into these facilities is impossible.”14 Prisons and jails around the country are already releasing non-violent detainees because the risk of contagion is overwhelming. The circumstances of this case make clear that release is the only means to ensure compliance with the petitioners’ due process rights. Public health information makes clear that the only way to prevent infection is through social distancing and increased hygiene, and that these measures are most imperative to protect individuals with underlying medical conditions. The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible.
C. ICE has the authority to release detained people in its custody. 50. It is well within ICE’s authority to comply with these constitutional requirements
by releasing people who are vulnerable to severe illness or death if they contract COVID-19.
13 Letter from Scott A. Allen, MD, FACP, and Josiah Rich, MD, MPH, to House and Senate Committees on Homeland Security (Mar. 19, 2020), https://whistleblower.org/wpcontent/uploads/2020/03/Drs.-Allen-and-Rich-3.20.2020-Letter-to-Congress.pdf. 14 See John Sandweg, “I Used to Run ICE. We Need to Release the Nonviolent Detainees.” The Atlantic (Mar. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/03/release-icedetainees/608536/.
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For example, the regulations governing ICE’s release authority state that serious medical conditions are a reason to parole an individual, as “continued detention would not be appropriate” in such cases. 8 C.F.R. § 212.5(b)(1).
51. ICE not only has the authority to exercise discretion to release individuals from custody, but has routinely exercised this discretion to release particularly vulnerable detainees like some of the class members.
D. This Court has the authority to order preliminary release pending resolution of this petition under the principles of Mapp v. Reno. 52. During the pendency of this action, the Court should order petitioners’ interim
release under the principles of Mapp v. Reno, 241 F.3d 221, 223 (2d Cir. 2001). Under Mapp, a court may order a habeas petitioner released on an interim basis after “inquir[ing] into whether ‘the habeas petition raise[s] substantial claims and [whether] extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective.’” Id. at 230 (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)) (alterations in original).15 Courts in this district and others have recently applied Mapp and its First Circuit analogues to order prejudgment release for immigration detainees challenging their detention in light of the COVID-19 pandemic. See, e.g., Savino Order at 27-28; Avendaño Hernandez v. Decker, No. 20-CV-1589 (JPO), 2020 WL 1547459, at *2-*4 (S.D.N.Y. Apr. 1, 2020); Calderon Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) (Ex. A).
15 Whereas Mapp required only that the petitioner raise “substantial claims” on the merits, the First Circuit – considering a habeas petition from a convicted state prisoner – articulated a higher standard. See Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972). However, the First Circuit’s test should not extend to immigration detainees, who retain the presumption of innocence, and “the Mapp test or something similar or perhaps less is appropriate” in the immigration context. Jimenez v. Wolf, No. 18-10225-MLW, Memorandum & Order, ECF No. 507 (D. Mass. Mar. 26, 2020) at 1-2.; see also Savino Order at 27-28 n.11.
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53. Here, as in those cases, this “nightmarish pandemic” constitutes “exceptional circumstances,” and petitioners have raised “substantial claims” that their detention is unconstitutional in light of the COVID-19 pandemic. Savino Order at 27-28 & n.11.16 Habeas will not be an effective remedy for them if they are no longer alive.
54. This Court should therefore order petitioners’ interim release while the Court considers and resolves this matter.
E. This Court has the authority to order release as a final remedy. 55. “[H]abeas corpus is, at its core, an equitable remedy,” Schlup v. Delo, 513 U.S.
298, 319 (1995), and “[f]ederal courts possess whatever powers are necessary to remedy constitutional violations because they are charged with protecting these rights.” Stone v. City & Cty. of San Francisco, 968 F.2d 850, 861 (9th Cir. 1992). As a result, “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); see also 28 U.S.C. § 2243; Boumediene v. Bush, 553 U.S. 723, 779-80 (2008) (explaining that “common-law habeas corpus was, above all an adaptable remedy,” that the “habeas court’s role was most extensive in cases of pretrial and noncriminal detention,” and that “when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority . . . to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release”).
56. Courts have regularly exercised this authority to remedy constitutional violations caused by overcrowding. See, e.g., Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983)
16 As this Court observed in the Savino order, a petitioner’s challenge to detention in light of the COVID-19 pandemic “would also satisfy a more exacting standard” like the one articulated by the First Circuit in Glynn. See Savino Order at 28 n.11.
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(concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap).
57. The same principle applies here. As the constitutional principles and public health experts make clear, releasing petitioners is the only viable remedy to ensure their safety. The Court may condition that release on the use of GPS monitoring and any other conditions it considers appropriate.
CLASS ALLEGATIONS 58. The foregoing allegations are re-alleged and incorporated herein. 59. Petitioners seek to represent a class defined as all civil immigration detainees who are petitioners in this action (i.e., who signed the original Petition (D.E. 1)) or are otherwise presently detained in unit C-3 at the PCCF. The members of the class are readily ascertainable through the Courts’ and the respondents’ records. 60. Petitioners bring this action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2) on behalf of themselves and all other similarly-situated persons within the proposed class as defined above. 61. The class is so numerous that joinder of all members is impracticable. According to records produced by respondent, there are at least 42 members of the class. 62. There are multiple questions of law and fact common to the members of the proposed class, including whether, due to the COVID-19 pandemic, the petitioners’ continued civil detention at the PCCF violates their Fifth Amendment rights such that they should be released. 63. Petitioners’ claims are typical of the claims of the proposed class, and petitioners will fairly and adequately protect the interests of the proposed class. Petitioners’ interests do not
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conflict with those of other members of the proposed class, and petitioners have retained competent counsel experienced in class actions and immigration law.
64. Moreover, certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because class members are subject to a common practice by respondent. Every member of the class is at imminent risk of being infected by COVID-19 while in the custody of respondent. And, because every member of the class is entitled to relief from this unconstitutional detention, an appropriate injunction or declaration will provide relief on a class-wide basis.
CLAIM FOR RELIEF Count I: Violation of Fifth Amendment Right to Due Process 65. The Fifth Amendment of the Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it subjects civil detainees to cruel treatment and conditions of confinement that amount to punishment or when it does not ensure those detainees’ safety and health. 66. The confinement of the petitioners and class members subjects them to a heightened and unacceptable risk of contracting COVID-19, for which there is no vaccine or cure. Respondent, acting unreasonably and with deliberate indifference, is subjecting petitioners and the class members to a substantial risk of serious harm, in violation of their rights under the Due Process Clause.
PRAYER FOR RELIEF WHEREFORE petitioners request that the Court immediately grant the following relief: a. Certify a class defined as: All civil immigration detainees who are petitioners in
this action or are otherwise presently detained in unit C-3 at the PCCF.
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b. Name the proposed class representatives as representatives of the class and appoint their counsel as class counsel.
c. Order the petitioners’ and class members’ immediate interim release pending the Court’s consideration and resolution of this matter, including pursuant to Mapp v. Reno;
d. Declare that the petitioners and class members are entitled to release, with appropriate conditions and precautionary public health measures.
e. Issue a Writ of Habeas Corpus or other suitable order for injunctive relief and order petitioners’ and class members’ immediate release, with appropriate conditions and precautionary public health measures;
f. Grant any other and further relief that this Court may deem fit and proper.

Dated: May 26, 2020

/s/ Daniel L. McFadden
Wm. Shaw McDermott (BBO # 330860) Andrew C. Glass (BBO # 638362) Christopher F. Warner (BBO # 705979) Molly R. Maidman (BBO # 705600) K&L GATES LLP State Street Financial Center One Lincoln Street Boston, MA 02111 (617) 261-3120 shaw.mcdermott@klgates.com andrew.glass@klgates.com chris.warner@klgates.com molly.maidman@klgates.com
Matthew R. Segal (BBO # 654489) Daniel McFadden (BBO # 676612) Adriana Lafaille (BBO # 680210) Laura K. McCready (BBO # 703692) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org dmcfadden@aclum.org alafaille@aclum.org
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Case 1:20-cv-10685-ADB Document 119 Filed 05/26/20 Page 20 of 21
lmccready@aclum.org
David C. Fathi (WA 24893) (Pro hac vice) Eunice H. Cho (WA 53711) (Pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org
Michael K. T. Tan (Pro hac vice) Anand V. Balakrishnan (Pro hac vice) Rebecca A. Ojserkis (Pro hac vice) Omar C. Jadwat (Pro hac vice) ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, New York 10004 Tel: 212-549-2660 mtan@aclu.org abalakrishnan@aclu.org rojserkis@aclu.org ojadwat@aclu.org
Sarah Sherman-Stokes (BBO# 682322) Associate Director IMMIGRANTS' RIGHTS AND HUMAN TRAFFICKING PROGRAM BOSTON UNIVERSITY SCHOOL OF LAW 765 Commonwealth Avenue Room 1302F Boston, MA 02215 T. 617-358-6272 sstokes@bu.edu
Susan B. Church (BBO# 639306) DEMISSIE & CHURCH 929 Massachusetts Avenue, Suite 01 Cambridge, MA 02139 Tel. (617) 354-3944 sbc@demissiechurch.com
Kerry E. Doyle (BBO# 565648) GRAVES & DOYLE 100 State Street, 9th Floor
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Case 1:20-cv-10685-ADB Document 119 Filed 05/26/20 Page 21 of 21 Boston, MA 02109 (617) 542-6400 kdoyle@gravesanddoyle.com
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 Case 1:20-cv-10685-ADB Document 119 Filed 05/26/20 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

____________________________________

)

CLEBERSON QUADRELLI, EVENS )

DRY, and ABDY NIZEYIMANA, on

)

behalf of themselves and all others

)

similarly situated,

)

)

Petitioners,

)

)

v.

)

)

ANTONE MONIZ, Superintendent of the )

Plymouth County Correctional Facility, )

)

Respondent.

)

)

C.A. No. 20-10685-ADB
Leave to File Granted May 21, 2020

SECOND AMENDED EMERGENCY PETITION FOR WRIT OF HABEAS CORPUS AND INJUNCTIVE RELIEF

1. The novel coronavirus that causes COVID-19 is spreading rapidly throughout the Massachusetts incarceration system. The virus is highly contagious. It has a multi-day incubation period during which an infected person shows no symptoms. The virus can be transmitted by asymptomatic people. The only known measures to mitigate its spread are impossible in communal living environments, including prisons and jails. As the City of New York Board of Correction has explained: “Given the nature of jails (e.g. dense housing areas and structural barriers to social distancing, hygiene, and sanitation), the number of patients diagnosed with COVID-19 is certain to rise exponentially.”1

1 https://www1.nyc.gov/assets/boc/downloads/pdf/News/covid-19/Letter-from-BOC-re-NYCJails-and-COVID-19-2020-03-21.pdf
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2. COVID-19 has been detected within the Plymouth County Correctional Facility (the “PCCF”). Multiple PCCF staff members have tested positive for the virus, as has at least one prisoner. The PCCF houses numerous civil immigration detainees in close quarters where “physical distancing,” avoiding shared surfaces and objects, and normal hygiene are impossible.
3. Petitioners Cleberson Quadrelli, Evens Dry, and Abdy Nizeyimana are civil immigration detainees at the PCCF. Mr. Dry and Mr. Nizeyimana have never been convicted of any crimes, and no final decision has been made as to whether or not they will be allowed to remain in the United States. Mr. Quadrelli has no criminal record except for non-violent motor vehicle offenses that occurred roughly a decade ago, and has a Petition for Review pending before the U.S. Court of Appeals for the First Circuit.
4. To protect themselves, these detainees seek immediate release to a location where they may safely self-isolate for the duration of the COVID-19 outbreak. Their release can be subject to GPS monitoring and any other conditions that the Court deems appropriate.
PARTIES 5. Petitioner Cleberson Quadrelli has been held in civil immigration detention since May 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility. 6. Petitioner Evens Dry has been held in civil immigration detention since July 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility. 7. Petitioner Abdy Nizeyimana has been held in civil immigration detainee since September 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility.
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8. Respondent Antone Moniz is the Superintendent of the Plymouth County Correctional Facility and is petitioners’ immediate custodian. He is sued in his official capacity only.
JURISDICTION AND VENUE 9. This Court has jurisdiction, including pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2241 (habeas jurisdiction), and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause). 10. Venue is proper because each petitioner is detained in Massachusetts.
FACTS A. COVID-19 poses a grave risk of serious illness and death to everyone, and especially
to people over 50 and those with certain medical conditions. 11. The novel coronavirus responsible for the illness COVID-19 has led to a global pandemic. As of May 5, 2020, according to the World Health Organization, more than 3.5 million people have been diagnosed with COVID-19 around the world and almost 250,000 have
2
died. In the United States alone, there are well over a million confirmed COVID-19 infections, resulting in nearly 70,000 deaths.3 In Massachusetts, there have been 69,087 confirmed cases, and more than 4,000 people have died in just the last month and a half.4 These numbers are likely a substantial underestimate, due to the lack of availability of testing, as well as the multi-day incubation period during which people are infected but asymptomatic.
2 https://www.who.int/emergencies/diseases/novel-coronavirus-2019 3 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 4 https://www.mass.gov/doc/covid-19-dashboard-may-4-2020/download. The fatality rate over the last 45 days in Massachusetts alone is roughly the equivalent of a commercial airline crash occurring every other day.
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12. The rates of infection are exponential, not linear, meaning that for each person infected one day, the next day we should expect to see not one, but many more infections.
13. The virus is transmitted through droplets and on contaminated surfaces. Airborne transmission has also been documented. The average incubation period (time from infection to symptoms) has generally been reported to be around five days. Both symptomatic and asymptomatic people can transmit the virus.
14. Outcomes from COVID-19 vary from asymptomatic infection to death. In particularly vulnerable populations, the fatality rate is about 15 percent—meaning about one out of every seven people in this group who contract the illness will die. An even higher percentage will suffer serious illness.
15. Those who do not die may experience long-term harm. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity.
16. People over the age of 50 and those with certain medical conditions face elevated risk of severe illness and death from COVID-19. The medical conditions that increase the risk of serious COVID-19 disease include lung disease (including asthma), heart disease, chronic liver or kidney disease (including hepatitis and dialysis), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and pregnancy.
17. There is no approved and available vaccine to prevent contracting COVID-19. There is no known cure or anti-viral treatment for COVID-19 at this time. The only way to
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protect vulnerable people from serious health outcomes, including death, is to prevent them from being infected with the coronavirus.
18. Preventing infection currently requires steps such as “social distancing” (such as remaining physically separated from other people, and avoiding the use of shared objects and surfaces) and vigilant hygiene (such as frequently washing or sanitizing the hands). Distancing must occur before individuals display symptoms, as they may be contagious before they are symptomatic.
19. To reduce the spread of infection, state and federal governments have undertaken extraordinary measures to separate people and limit their interactions. In Massachusetts, for example, the Governor has declared a state of emergency, ordered the closure of all non-essential businesses, and prohibited gatherings of more than 10 people.5 The Governor also advised all residents to stay home and avoid all unnecessary travel and activities.6
20. Preventing COVID-19 is in the public interest. People with COVID-19 often require intensive medical interventions, including hospitalization, use of a ventilator, and other life support. Consequently, an outbreak of COVID-19 cases in any discrete location—whether in a nursing home, university, or incarceration facility—presents a serious risk of overwhelming the local medical resources upon which all residents rely.
5 https://www.mass.gov/doc/march-23-2020-essential-services-and-revised-gatheringsorder/download 6 https://www.mass.gov/news/governor-charlie-baker-orders-all-non-essential-businesses-tocease-in-person-operation
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B. Detainees at PCCF are at high risk for COVID-19 infection. 21. At present, there is no way to adequately protect people from COVID-19 in
communal living environments, particularly people who are medically vulnerable. For example, nursing homes—where staff are trained to prevent the spread of communicable diseases—have been the sites of some of the largest concentrated outbreaks of COVID-19 in the United States. More than 50% of all COVID-19 deaths in Massachusetts have occurred among residents of long-term care facilities.7
22. Similarly, COVID-19 is spreading rapidly through the Massachusetts incarceration system. To date, at least eight prisoners in Massachusetts state facilities have died from COVID-19.
23. In the Massachusetts Department of Correction (the “DOC”), the number of the incarcerated people who tested positive for COVID-19 has more than octupled in the last month, increasing from 40 to 351.
24. COVID-19 is also spreading through the county Houses of Correction. For example, the number of positive cases in the Essex and Middlesex county sheriffs’ departments (prisoners and staff) has more than doubled over the last two weeks to more than 70 cases each.8
25. The virus that causes COVID-19 is present in the PCCF. Multiple PCCF staff members and at least one PCCF inmate have tested positive for COVID-19.
7 https://www.mass.gov/doc/covid-19-dashboard-may-4-2020/download. 8 Real-time tracking available at: https://data.aclum.org/sjc-12926-tracker/. Additionally, nationwide, more than 600 confirmed cases have been reported in ICE detention facilities. See https://www.ice.gov/coronavirus. And the New York Times is currently tracking more than 10,000 cases in state prisons and detention facilities. See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.
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26. People incarcerated at the PCCF live in close quarters and rely on shared spaces to eat, sleep, shower, and use the bathroom. They cannot achieve the physical distancing needed to effectively prevent the spread of COVID-19. Similarly, the intensive hygiene practices necessary to prevent the spread of COVID-19 are impossible.
27. Immigration detainees at the PCCF are housed in several units, one of which is C3. Within each unit, people are held in cells with up to five bunks each. The unit takes meals together in a common area located immediately outside the cells. Although each cell has a toilet, the entire unit shares a communal bathroom, including several shared showers. The living area contains many metallic and plastic surfaces that detainees touch and breathe on, and as to which constant disinfection is impracticable. Correctional officers and staff rotate in and out of the unit. Detainees also regularly rotate in and out of the unit as they are arrested, released, or deported.
28. These conditions and the shared objects (furniture, bathrooms, sinks, etc.) increase the likelihood that COVID-19 will spread rapidly across the facility, infecting vulnerable detainees.
C. People must be released from ICE detention. 29. Because risk mitigation is the only known strategy that can protect people from
COVID-19, public health experts with experience in immigration detention and correctional settings have recommended the release of detainees from custody.
30. Recognizing these grave risks, courts have begun issuing orders requiring or urging the release of incarcerated people. In Massachusetts, the U.S. District Court recently ordered that an immigration detainee be released from the PCCF based on the “extraordinary circumstances” arising from the coronavirus pandemic. See Ex. A (Memorandum and Order
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(D.E. 507), Calderon Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 25, 2020)). The court has also certified a class of all civil immigration detainees held at the Bristol County House of Correction, and has ordered the interim release of dozens of detainees during the pendency of that action. See generally Savino v. Souza, No. 20-10617, 2020 WL 1703844 (D. Mass. Apr. 8, 2020) (“Savino Order”). And in New Hampshire, the U.S. District Court has similarly provisionally certified a class of immigration detainees and is considering expedited applications for interim release. See generally Gomes v. DHS, No. 20-453, 2020 WL 2113642 (D.N.H. May 4, 2020).
31. Similarly, the U.S. Court of the Appeals for the Ninth Circuit recently ordered the release of an immigrant from ICE detention in light of the dangers posed by the COVID-19 crisis. See, e.g., Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877 (9th Cir. Mar. 24, 2020) (Order) (“[I]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention and that removal of Petitioner be stayed pending final disposition by this court.”). Other U.S. District Courts have issued orders requiring that immigration detainees be released in light of the coronavirus pandemic. See, e.g., A.R. v. Decker, No. 20-3600 (D.N.J. Apr. 12, 2020); Bent v. Barr, No. 19-CV-06123, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020); Ortuno v. Jennings, No. 3:20-cv-02064-MMC, Dkt. No. 38 (N.D. Cal. Apr. 8, 2020); Toma v. Adducci, 20-cv-10829, Dkt. No. 29 (E.D. Mich. Apr. 9, 2020); L.O. v. Tsoukaris, 20-cv-2481, Dkt. No. 24 (D.N.J. Apr. 9, 2020); Hope v. Doll, No. 1:20-cv00562 (M.D. Pa. Apr. 7, 2020); Malam v. Adducci, No. 2:20-cv-10829 (E.D. Mich. Apr. 6, 2020) (“[T]he only reasonable response by Respondents is the release of Petitioner; any other response demonstrates a disregard of the specific, severe, and life-threatening risk to Petitioner from
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COVID-19.”); Nguyen v. Marin, No. 20-00646, Dkt. No. 10, (C.D. Cal. Apr. 3, 2020); Orders, Robles v. Wolf, No. 20-cv-627, Dkt. Nos. 32, 35, 36, 38, 39 (C.D. Cal. Apr. 2, 2020); Hernandez v. Wolf, 20-cv-617, Dkt. No. 17 (C.D. Cal. Apr. 1, 2020) (“Because of the highly contagious nature of the coronavirus and the, relatively high, mortality rate of COVID-19, the disease can spread uncontrollably with devastating results in a crowded, closed facility, such as an immigration detention center.”); Avendaño Hernandez v. Decker, No. 20-CV-1589, 2020 WL 1547459, at *4 (S.D.N.Y. Mar. 31, 2020); Thakker v. Doll, No. 20-00480 (M.D. Pa. Mar. 31, 2020); Fraihat v. Wolf, No. 20-00590 (C.D. Cal. Mar. 30, 2020); Castillo v. Barr, No. 20-00605, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020); Coronel v. Decker, No. 20-2472, 2020 WL 1487274, at *10 (S.D.N.Y. Mar. 27, 2020); Basank v. Decker, No. 20-2518, 2020 WL 1481503, at *7 (S.D.N.Y. Mar. 26, 2020).
32. Similarly, the Massachusetts Supreme Judicial Court recently established a rebuttable presumption of release for most pre-trial detainees accused of crimes, particularly those with medical vulnerabilities. See Slip Opinion, Committee for Public Counsel Services v. Chief Justice of the Trial Court, No. SJC-12926, at 29-30 (Apr. 3, 2020). And the Chief Justice of the Montana Supreme Court recently urged judges to “review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for non-violent offenses.”9 The Chief Justice of the South Carolina Supreme Court ordered that everyone held on bond in a non-capital case be released, unless there exists an “unreasonable danger” or
9 See Letter from Mike McGrath, Chief Justice of Montana Supreme Court, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), https://courts.mt.gov/ Portals/189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID-19%20032020.pdf?ver= 2020-03-20-115517-333 (emphasis added).
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“extreme flight risk.”10 And in New Jersey, after the Supreme Court ordered briefing and argument on why it should not order the immediate release of individuals serving county jail sentences, the Attorney General and County Prosecutors agreed to create an immediate presumption of release for every person serving a county jail sentence in New Jersey.11 Many other courts have taken similar steps, recognizing that public safety means ensuring the public’s health.12
D. Petitioners should be immediately released to a location where they can safely self-isolate under whatever conditions and supervision the Court deems appropriate. 33. Petitioner Cleberson Quadrelli has been held in civil immigration detention since
May 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility. Mr. Quadrelli has no criminal record except for non-violent motor vehicle offenses that occurred roughly a decade ago. He is currently seeking to re-open his removal proceedings on the grounds of legal error that resulted in the denial of his eligibility for cancellation of removal. He currently has a Petition for Review pending before the U.S. Court of Appeals for the First Circuit where the legal issue regarding his eligibility will be addressed. His removal is presently stayed by court order.
10 Memo from Chief Justice Beatty to Magistrates, Municipal Judges, and Summary Court Staff (Mar. 16, 2020), https://www.sccourts.org/whatsnew/displayWhatsNew.cfm?indexId=2461. 11 See https://www.aclu-nj.org/files/5415/8496/4744/2020.03.22__Consent_Order_Filed_Stamped_Copy-1.pdf; https://www.njcourts.gov/public/assets/COVIDproposedOTSC.pdf?c=PkD 12 See Appendix: Court Actions Across the Country to Reduce Incarceration in Light of Covid19.
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34. Petitioner Evens Dry has been held in civil immigration detention since July 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility. Mr. Dry has never been convicted of a crime.
35. Petitioner Abdy Nizeyimana has been held in civil immigration detainee since September 2019. He is currently detained at the PCCF in Plymouth, Massachusetts. On information and belief, he is detained in Unit C-3 within the facility. Mr. Nizeyimana has never been convicted of a crime.
36. Continued detention in the PCCF puts petitioners at high risk of severe illness and death from COVID-19.
LEGAL FRAMEWORK A. Petitioners are entitled to constitutional due process protections against infectious
disease and death while detained. 37. The Eighth Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable safety.’” Helling v. McKinney, 509 U.S. 25, 33 (1993) (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989)). Accordingly, “[i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” Id. The Supreme Court has explicitly recognized that the risk of contracting a communicable disease may constitute such an “unsafe, life-threatening condition” that threatens “reasonable safety.” Id. 38. Immigration detainees, even those with prior criminal convictions, are civil detainees held pursuant to civil immigration laws. Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
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39. For pretrial and civil detainees, due process “provides at least as much protection . . . as the Eighth Amendment provides for convicted inmates.” Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007) (emphasis added); accord Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990). Indeed, civil detainees, like petitioners here, are entitled to conditions of confinement that are superior to those of convicted prisoners. See Alves v. Murphy, 530 F. Supp. 2d 380, 387 (D. Mass. 2008); see also King v. Cty. of Los Angeles, 885 F.3d 548, 557 (9th Cir. 2018); Jones v. Blanas, 393 F.3d 918, 933-34 (9th Cir. 2004).
40. Consequently, under the Due Process Clause, pretrial and civil detainees, like petitioners, may not be subject to conditions that amount to punishment, including conditions that fail to “reasonably relate[] to a legitimate governmental objective.” Bell v. Wolfish, 441 U.S. 520, 539 (1979); accord Lyons v. Powell, 838 F.2d 28, 29 (1st Cir. 1988). Accordingly, the First Circuit has found that, at a minimum, detention conditions are unconstitutional where they: (1) objectively deny a minimal measure of necessities required for civilized living; and (2) are imposed with deliberate indifference to inmate health or safety. Surprenant v. Rivas, 424 F.3d 5, 18-19 (1st Cir. 2005); Reaves v. Dep’t of Corr., 333 F. Supp. 3d 18, 26 (D. Mass. 2018); Couchon v. Cousins, No. 17-10965, 2018 WL 4189694, at *6 (D. Mass. Aug. 31, 2018).
41. Additionally, the Due Process Clause protects detainees, like petitioners, not only from conduct amounting to deliberate indifference, but also from objectively unreasonable conduct that creates a risk to their safety. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472-73 (2015); Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018); Gordon v. Cty. of Orange, 888 F.3d 1118, 1120, 1122-25 (9th Cir. 2018). The language of Kingsley is broad—applying not only to use of excessive force by the government, but to government action generally, including actions involving medical treatment. See Gordon, 888 F.3d at 1124; see also Couchon, 2018
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WL 4189694, at *6 (noting that there is “much to be said” for the reasoning that extends Kingsley to conditions of confinement cases).
42. Regardless, under either the objective unreasonableness or deliberate indifference standard, petitioners should succeed on the merits of their claim. As a court in this district recently explained, “the virus is gravely dangerous to all of us,” and that harm is “more serious for some petitioners than for others.” See Savino Order at 21.
43. Further, to the extent relevant, it also clear that there are substitute measures that can achieve community safety and petitioners’ future appearance, absent continued detention. The Court can order release subject to home confinement, GPS monitoring, and other conditions that the Court deems appropriate.
44. But in all events, because the government has actual knowledge of the impending, preventable, and extreme risks that COVID-19 poses to petitioners (including death), their release is required under due process principles.
B. Release is the only relief that can adequately protect petitioners. 45. COVID-19 poses a serious risk to petitioners. It is highly contagious and can
cause severe illness and death. 46. The risk that COVID-19 poses to petitioners is known to Respondent. 47. Petitioners’ continued detention in the absence of appropriate or sufficient care
and protection constitutes deliberate indifference and is objectively unreasonable. 48. Medical experts for the Department of Homeland Security have also identified the
risk of COVID-19 spreading to ICE detention centers. As early as February 25, 2020, Dr. Scott Allen and Dr. Josiah Rich, medical experts to the Department of Homeland Security, shared concerns about the specific risk to immigrant detainees as a result of COVID-19 with the agency.
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These experts warned of the danger of rapid spread of COVID-19 in immigration detention facilities. In a letter to Congress, Dr. Allen and Dr. Rich recommended that “[m]inimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with chronic diseases.” They concluded that “acting immediately will save lives not of only those detained, but also detention staff and their families, and the community-at-large.”13
49. John Sandweg, a former acting director of ICE, has written publicly about the need to release nonviolent detainees because ICE detention centers “are extremely susceptible to outbreaks of infectious diseases” and “preventing the virus from being introduced into these facilities is impossible.”14 Prisons and jails around the country are already releasing non-violent detainees because the risk of contagion is overwhelming. The circumstances of this case make clear that release is the only means to ensure compliance with the petitioners’ due process rights. Public health information makes clear that the only way to prevent infection is through social distancing and increased hygiene, and that these measures are most imperative to protect individuals with underlying medical conditions. The only course of action that can remedy these unlawful conditions is release from the detention centers where risk mitigation is impossible.
C. ICE has the authority to release detained people in its custody. 50. It is well within ICE’s authority to comply with these constitutional requirements
by releasing people who are vulnerable to severe illness or death if they contract COVID-19.
13 Letter from Scott A. Allen, MD, FACP, and Josiah Rich, MD, MPH, to House and Senate Committees on Homeland Security (Mar. 19, 2020), https://whistleblower.org/wpcontent/uploads/2020/03/Drs.-Allen-and-Rich-3.20.2020-Letter-to-Congress.pdf. 14 See John Sandweg, “I Used to Run ICE. We Need to Release the Nonviolent Detainees.” The Atlantic (Mar. 22, 2020), https://www.theatlantic.com/ideas/archive/2020/03/release-icedetainees/608536/.
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For example, the regulations governing ICE’s release authority state that serious medical conditions are a reason to parole an individual, as “continued detention would not be appropriate” in such cases. 8 C.F.R. § 212.5(b)(1).
51. ICE not only has the authority to exercise discretion to release individuals from custody, but has routinely exercised this discretion to release particularly vulnerable detainees like some of the class members.
D. This Court has the authority to order preliminary release pending resolution of this petition under the principles of Mapp v. Reno. 52. During the pendency of this action, the Court should order petitioners’ interim
release under the principles of Mapp v. Reno, 241 F.3d 221, 223 (2d Cir. 2001). Under Mapp, a court may order a habeas petitioner released on an interim basis after “inquir[ing] into whether ‘the habeas petition raise[s] substantial claims and [whether] extraordinary circumstances exist[ ] that make the grant of bail necessary to make the habeas remedy effective.’” Id. at 230 (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)) (alterations in original).15 Courts in this district and others have recently applied Mapp and its First Circuit analogues to order prejudgment release for immigration detainees challenging their detention in light of the COVID-19 pandemic. See, e.g., Savino Order at 27-28; Avendaño Hernandez v. Decker, No. 20-CV-1589 (JPO), 2020 WL 1547459, at *2-*4 (S.D.N.Y. Apr. 1, 2020); Calderon Jimenez v. Wolf, No. 18-10225-MLW (D. Mass. Mar. 26, 2020) (Ex. A).
15 Whereas Mapp required only that the petitioner raise “substantial claims” on the merits, the First Circuit – considering a habeas petition from a convicted state prisoner – articulated a higher standard. See Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972). However, the First Circuit’s test should not extend to immigration detainees, who retain the presumption of innocence, and “the Mapp test or something similar or perhaps less is appropriate” in the immigration context. Jimenez v. Wolf, No. 18-10225-MLW, Memorandum & Order, ECF No. 507 (D. Mass. Mar. 26, 2020) at 1-2.; see also Savino Order at 27-28 n.11.
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53. Here, as in those cases, this “nightmarish pandemic” constitutes “exceptional circumstances,” and petitioners have raised “substantial claims” that their detention is unconstitutional in light of the COVID-19 pandemic. Savino Order at 27-28 & n.11.16 Habeas will not be an effective remedy for them if they are no longer alive.
54. This Court should therefore order petitioners’ interim release while the Court considers and resolves this matter.
E. This Court has the authority to order release as a final remedy. 55. “[H]abeas corpus is, at its core, an equitable remedy,” Schlup v. Delo, 513 U.S.
298, 319 (1995), and “[f]ederal courts possess whatever powers are necessary to remedy constitutional violations because they are charged with protecting these rights.” Stone v. City & Cty. of San Francisco, 968 F.2d 850, 861 (9th Cir. 1992). As a result, “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011); see also 28 U.S.C. § 2243; Boumediene v. Bush, 553 U.S. 723, 779-80 (2008) (explaining that “common-law habeas corpus was, above all an adaptable remedy,” that the “habeas court’s role was most extensive in cases of pretrial and noncriminal detention,” and that “when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority . . . to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release”).
56. Courts have regularly exercised this authority to remedy constitutional violations caused by overcrowding. See, e.g., Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983)
16 As this Court observed in the Savino order, a petitioner’s challenge to detention in light of the COVID-19 pandemic “would also satisfy a more exacting standard” like the one articulated by the First Circuit in Glynn. See Savino Order at 28 n.11.
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(concluding that court did not exceed its authority in directing release of low-bond pretrial detainees as necessary to reach a population cap).
57. The same principle applies here. As the constitutional principles and public health experts make clear, releasing petitioners is the only viable remedy to ensure their safety. The Court may condition that release on the use of GPS monitoring and any other conditions it considers appropriate.
CLASS ALLEGATIONS 58. The foregoing allegations are re-alleged and incorporated herein. 59. Petitioners seek to represent a class defined as all civil immigration detainees who are petitioners in this action (i.e., who signed the original Petition (D.E. 1)) or are otherwise presently detained in unit C-3 at the PCCF. The members of the class are readily ascertainable through the Courts’ and the respondents’ records. 60. Petitioners bring this action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2) on behalf of themselves and all other similarly-situated persons within the proposed class as defined above. 61. The class is so numerous that joinder of all members is impracticable. According to records produced by respondent, there are at least 42 members of the class. 62. There are multiple questions of law and fact common to the members of the proposed class, including whether, due to the COVID-19 pandemic, the petitioners’ continued civil detention at the PCCF violates their Fifth Amendment rights such that they should be released. 63. Petitioners’ claims are typical of the claims of the proposed class, and petitioners will fairly and adequately protect the interests of the proposed class. Petitioners’ interests do not
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conflict with those of other members of the proposed class, and petitioners have retained competent counsel experienced in class actions and immigration law.
64. Moreover, certification is appropriate under Federal Rule of Civil Procedure 23(b)(2) because class members are subject to a common practice by respondent. Every member of the class is at imminent risk of being infected by COVID-19 while in the custody of respondent. And, because every member of the class is entitled to relief from this unconstitutional detention, an appropriate injunction or declaration will provide relief on a class-wide basis.
CLAIM FOR RELIEF Count I: Violation of Fifth Amendment Right to Due Process 65. The Fifth Amendment of the Constitution guarantees that civil detainees, including all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it subjects civil detainees to cruel treatment and conditions of confinement that amount to punishment or when it does not ensure those detainees’ safety and health. 66. The confinement of the petitioners and class members subjects them to a heightened and unacceptable risk of contracting COVID-19, for which there is no vaccine or cure. Respondent, acting unreasonably and with deliberate indifference, is subjecting petitioners and the class members to a substantial risk of serious harm, in violation of their rights under the Due Process Clause.
PRAYER FOR RELIEF WHEREFORE petitioners request that the Court immediately grant the following relief: a. Certify a class defined as: All civil immigration detainees who are petitioners in
this action or are otherwise presently detained in unit C-3 at the PCCF.
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b. Name the proposed class representatives as representatives of the class and appoint their counsel as class counsel.
c. Order the petitioners’ and class members’ immediate interim release pending the Court’s consideration and resolution of this matter, including pursuant to Mapp v. Reno;
d. Declare that the petitioners and class members are entitled to release, with appropriate conditions and precautionary public health measures.
e. Issue a Writ of Habeas Corpus or other suitable order for injunctive relief and order petitioners’ and class members’ immediate release, with appropriate conditions and precautionary public health measures;
f. Grant any other and further relief that this Court may deem fit and proper.

Dated: May 26, 2020

/s/ Daniel L. McFadden
Wm. Shaw McDermott (BBO # 330860) Andrew C. Glass (BBO # 638362) Christopher F. Warner (BBO # 705979) Molly R. Maidman (BBO # 705600) K&L GATES LLP State Street Financial Center One Lincoln Street Boston, MA 02111 (617) 261-3120 shaw.mcdermott@klgates.com andrew.glass@klgates.com chris.warner@klgates.com molly.maidman@klgates.com
Matthew R. Segal (BBO # 654489) Daniel McFadden (BBO # 676612) Adriana Lafaille (BBO # 680210) Laura K. McCready (BBO # 703692) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org dmcfadden@aclum.org alafaille@aclum.org
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Case 1:20-cv-10685-ADB Document 119 Filed 05/26/20 Page 20 of 21
lmccready@aclum.org
David C. Fathi (WA 24893) (Pro hac vice) Eunice H. Cho (WA 53711) (Pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 T: 202-548-6616 E: dfathi@aclu.org E: echo@aclu.org
Michael K. T. Tan (Pro hac vice) Anand V. Balakrishnan (Pro hac vice) Rebecca A. Ojserkis (Pro hac vice) Omar C. Jadwat (Pro hac vice) ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, New York 10004 Tel: 212-549-2660 mtan@aclu.org abalakrishnan@aclu.org rojserkis@aclu.org ojadwat@aclu.org
Sarah Sherman-Stokes (BBO# 682322) Associate Director IMMIGRANTS' RIGHTS AND HUMAN TRAFFICKING PROGRAM BOSTON UNIVERSITY SCHOOL OF LAW 765 Commonwealth Avenue Room 1302F Boston, MA 02215 T. 617-358-6272 sstokes@bu.edu
Susan B. Church (BBO# 639306) DEMISSIE & CHURCH 929 Massachusetts Avenue, Suite 01 Cambridge, MA 02139 Tel. (617) 354-3944 sbc@demissiechurch.com
Kerry E. Doyle (BBO# 565648) GRAVES & DOYLE 100 State Street, 9th Floor
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Case 1:20-cv-10685-ADB Document 119 Filed 05/26/20 Page 21 of 21 Boston, MA 02109 (617) 542-6400 kdoyle@gravesanddoyle.com
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 Case 1:20-cv-10685-ADB Document 135 Filed 06/08/20 Page 1 of 13

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

CLEBERSON QUADRELLI and ABDY NIZEYIMANA, on behalf of themselves and all others similarly situated,

* * *

Petitioners,

* *

v.

* *

ANTONE MONIZ, Superintendent, Plymouth County Correctional Facility,

* * *

Respondent.

*

Civil Action No. 20-cv-10685-ADB

MEMORANDUM AND ORDER ON MOTION FOR CLASS CERTIFICATION BURROUGHS, D.J.
This action was initiated on April 7, 2020, when a group of pro se civil immigration detainees (“Petitioners”) at Plymouth County Correctional Facility (“PCCF”) filed a petition for a writ of habeas corpus pursuant to 22 U.S.C. § 2241, naming Antone Moniz, Superintendent of PCCF (“Respondent”), as a respondent. [ECF No. 1]. Petitioners are seeking release through parole or bond, and a fast-tracking of their immigration cases due to their concerns about the risk of contracting COVID-19 while confined in a state correctional facility. [ECF No. 1 at 6–7]. Since filing their petition, several Petitioners have been terminated from the case due to release or transfer from PCCF, others have joined the case, and some have obtained counsel. At this time, there are forty petitioners actively seeking relief under two separate petitions. [ECF Nos. 1, 119]. Presently before the Court is a motion for class certification. [ECF No. 84]. For the reasons set forth below, the motion, [ECF No. 84], is GRANTED.

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I. BACKGROUND A. Factual Background On March 11, 2020, the World Health Organization (“WHO”) announced that, due to the
“alarming levels of spread and severity, and by the alarming levels of inaction,” it had “made the assessment that COVID-19 can be characterized as a pandemic.” WHO, Director-General’s Opening Remarks at the Media Briefing on COVID-19 (Mar. 11, 2020). Several weeks later, on March 23, 2020, the Commonwealth of Massachusetts, through an executive order signed by Governor Baker, limited activities taking place outside of the home through mandatory closure of non-essential businesses and a stay-at-home advisory issued by the Department of Public Health. Office of the Governor, COVID-19 Order No. 13 (Mar. 23, 2020). In response to these events, Petitioners initiated this action in early April, raising concerns about their safety at PCCF while being detained in connection with their respective immigration matters. [ECF No. 1].
The Centers for Disease Control and Prevention (“CDC”) states that “COVID-19 spreads mainly among people who are in close contact (within about 6 feet) for a prolonged period,” and recommends that individuals practice “social distancing” because “keeping space between [individuals] is one of the best tools we have to avoid being exposed to this virus and slowing its spread locally and across the country and world.” CDC, Social Distancing: Keep Your Distance to Slow the Spread (last updated May 6, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/social-distancing.html (last visited June 2, 2020). Even if an individual shows no signs of illness, the CDC advises that, “[s]ince people can spread the virus before they know they are sick, it is important to stay away from others when possible, even if you—or they—have no symptoms.” Id. The CDC has also issued guidance specific to correctional facilities, recognizing that “[a]lthough social distancing is challenging to practice in
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correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.” CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, at 4 (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf. As of June 7, 2020, there were 103,436 cases of COVID-19 in Massachusetts with 8,363 cases in Plymouth County. Massachusetts Department of Public Health, COVID-19 Dashboard, https://www.mass.gov/doc/covid-19-dashboard-june-7-2020 (last visited June 8, 2020).
Petitioners are currently being held in Unit C-3 at PCCF. [ECF No. 22-1 ¶¶ 9, 12]. As of June 2, 2020, seven employees and two inmates at PCCF have tested positive for COVID-19, though none of these individuals worked within or were detainees in Petitioners’ unit. [ECF Nos. 51, 61-1, 69, 97, 131]. As of April 15, 2020, each Petitioner in Unit C-3 (nearly sixty petitioners at that time) had their own cell. [ECF No. 22-1 ¶ 9].
Respondent has submitted affidavits from the Plymouth County Sheriff, Joseph D. McDonald, Jr., [ECF No. 22-1], who oversees the operation of PCCF, and from PCCF’s Medical Director, Dr. Lawrence Baker, [ECF No. 22-2], outlining the steps PCCF has taken in response to COVID-19. These steps include: suspending visits from friends, family members, and volunteers; preventing non-essential staff from entering the facility; suspending work crew and similar assignments that would result in inmates leaving and reentering the facility; isolating newly admitted inmates in a separate unit for a period of time; reducing inmate travel by conducting hearings via video and teleconference; splitting recreational and meal times to reduce the number of inmates who are in the same room at a given time; maintaining an “aggressive cleaning schedule”; educating staff and inmates on sanitation and social distancing practices;
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providing soap and cleaning supplies to inmates weekly and as needed; conducting temperature screenings for all employees, contractors, and visitors; and providing surgical masks for all staff and inmates. [ECF No. 22-1 ¶ 6].
In addition to these precautions, there is a full-time medical staff on duty at PCCF twenty-four hours a day, seven days a week, including a doctor who is on site forty hours per week and a nurse practitioner who is on site thirty-six hours per week, as well as around-theclock on-call coverage. [ECF No. 22-1 ¶ 3]. In addition to drafting guidelines specific to screening for and treating individuals who have or are suspected of having COVID-19, information about the virus and its spread has been posted in all units and visiting areas. [ECF No. 22-2 ¶¶ 8, 15]. The medical team is also monitoring all inmates who have reported chronic diseases or co-morbidities that make them more susceptible to infection. [Id. ¶¶ 20, 22].
Petitioners acknowledge that Respondent has taken steps to protect inmates’ health but argue that these steps are insufficient. [ECF No. 42 at 4; ECF No. 85 at 5]. Petitioners allege that, despite the fact that inmates and staff have been issued masks, not all individuals wear them. [ECF No. 42 at 8]. In addition, Petitioners state that they cannot maintain social distance when lining up for and sitting during meal and recreation times, when using the telephones, or when lining up for medication or visits with medical staff. [Id. at 4–6].
In support of the motion for class certification, Petitioners have submitted an affidavit from Dr. Yonatan Grad (“Dr. Grad”) and Emma Accorsi (“Accorsi”), both of whom are affiliated with Harvard University’s T.H. Chan School of Public Health. [ECF No. 122]. Their affidavit highlights the risks of COVID-19 to those who are confined in crowded, indoor spaces with shared facilities where “the virus can easily spread through shared spaces such as toilets, showers, and eating areas because it can remain on surfaces for up to 72 hours.” [ECF No. 122
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¶ 7]. Dr. Grad and Accorsi also note that recent studies of incarcerated populations suggest that the majority of inmates who test positive for COVID-19 are asymptomatic and conclude that PCCF is not conducting sufficient testing to detect asymptomatic cases. [Id. ¶¶ 8–10].
B. Procedural Background There are two operative petitions in this action. [ECF Nos. 1, 119]. On April 15, 2020, Respondent moved to dismiss the first-filed petition, [ECF No. 21], which Petitioners opposed in various filings, [ECF Nos. 35, 42, 45, 49, 52–54, 58]. On May 5, 2020, the Court denied Respondent’s motion to dismiss, finding that the Court had subject matter jurisdiction to consider the petition and that Petitioners had alleged facts sufficient to state a plausible claim. [ECF No. 79]. Also on May 5, 2020, Petitioners Cleberson Quadrelli and Abdy Nizeyimana (“Movants”) filed the present motion for class certification on behalf of themselves and similarly situated petitioners. [ECF No. 84 at 1].1 Respondent opposes the motion, [ECF No. 108], and Movants replied to the opposition, [ECF No. 130]. II. LEGAL STANDARD To obtain class certification under Federal Rule of Civil Procedure 23, a plaintiff must first satisfy the four requirements of Rule 23(a). They must demonstrate that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). These requirements “ensure[] that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). “The Rule’s four requirements—numerosity, commonality, typicality,
1 The motion was also submitted by Petitioner Evens Dry, who was released from PCCF and subsequently terminated from this case. See [ECF No. 88].
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and adequate representation—‘effectively limit the class claims to those fairly encompassed by the named plaintiff’s claims.’” Id. (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 156 (1982)). “The party must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013); see also Crowe v. ExamWorks, Inc., 136 F. Supp. 3d 16, 48 (D. Mass. 2015) (“[P]laintiffs must also satisfy one of the elements of Rule 23(b) to obtain class certification.”).
“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule . . . .” Wal-Mart Stores, 564 U.S. at 350. The Court must engage in a “rigorous analysis,” which may involve “prob[ing] behind the pleadings” in order to decide whether certification is appropriate. Id. (quoting Gen. Tel. Co. of the Sw., 457 U.S. at 160). III. DISCUSSION
Movants ask this Court to name them as class representatives, appoint their counsel as class counsel, and certify various issues including whether continued confinement at PCCF in the midst of the current pandemic violates putative class members’ rights under the Fifth Amendment. [ECF No. 84 at 1]. In addition, Movants seek to certify the following proposed class: “all civil immigration detainees who are petitioners in this action (i.e., who signed the original Petition . . . .) or are otherwise presently detained in unit C-3 at the PCCF.” [Id.]. Respondent challenges only the commonality and typicality of the proposed class under Rule 23(a) and argues that Petitioners cannot satisfy the requirements under Rule 23(b)(2) because they seek relief that requires the analysis of disparate factual circumstances specific to each proposed class member. [ECF No. 108 at 3–4]. In addition, Respondent states that, under 8 U.S.C. § 1252(f)(1), the Court lacks jurisdiction to issue class-wide injunctive relief. [Id. at 8].
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Given that numerosity and adequacy of representation appear well-established and Respondent does not object to class certification on either basis, the Court will limit its analysis to Respondent’s challenges to commonality and typicality under Rule 23(a) and availability of a unified remedy under Rule 23(b)(2).
A. Jurisdiction under 8 U.S.C. § 1252(f)(1) Respondent asserts that the Court lacks jurisdiction to provide class-wide injunctive relief, claiming that “[t]he text of 8 U.S.C. § 1252(f)(1) makes this plain: “Regardless of the nature of the action or claim . . . no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [8 U.S.C. §§ 1221– 1232], other than with respect to the application of such provisions to an individual alien against whom proceedings . . . have been initiated.” [ECF No. 108 at 8 (alteration in original) (quoting 8 U.S.C. § 1252(f)(1))]. The Government recently raised the same objection to jurisdiction in Savino v. Souza, a matter before Judge Young, in which civil immigration detainees being held in the Bristol County House of Corrections are seeking relief similar to Petitioners. No. 20-cv-10617, 2020 U.S. Dist. LEXIS 61775, at *14–16 (D. Mass. Apr. 8, 2020). Just as in Savino, Petitioners here seek declaratory relief, as well as injunctive relief. [ECF No. 119 at 19 (asking the Court to “[d]eclare that the petitioners and class members are entitled to release, with appropriate conditions and precautionary public health measures”)]. Section 1252(f) does not bar declaratory relief and is consequently not a bar to class certification. Savino, 2020 U.S. Dist. LEXIS 61775, at *16; see also Reid v. Donelan, 390 F. Supp. 3d 201, 226 (D. Mass. 2019) (noting that the court had previously rejected the Government’s argument “that § 1252(f)(1) deprives the Court of jurisdiction to issue even a class-wide declaratory judgment concerning the rights of class members”). Further, in finding that declaratory relief was not barred under Section 1252(f)(1), Judge Young rejected the notion that injunctive relief was “categorically
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unavailable” to petitioners who are similarly situated to the Petitioners in this case. Savino, 2020 U.S. Dist. LEXIS 61775, at *16 (citing Rodriguez v. Marin, 909 F.3d 252, 256 (9th Cir. 2018)).
As a result, the Court finds that, “at this class certification stage, it is enough to establish that the Court could provide a classwide remedy in the form of a declaratory judgment or injunctive relief. Having established that, the Court rejects the government’s argument that section 1252(f) precludes class certification.” Id.
B. Commonality Rule 23(a)(2) requires the presence of “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The Supreme Court has held that, “for purposes of Rule 23(a)(2) [e]ven a single [common] question will do.” Wal-Mart, 564 U.S. at 359 (alteration in original) (internal quotation marks and citation omitted); see also Tracey v. MIT, No. 16-cv-11620, 2018 U.S. Dist. LEXIS 179945, at *11 (D. Mass. Oct. 19, 2018) (“The commonality requirement under Rule 23(a) is a ‘low hurdle.’” (citing Swack v. Credit Suisse First Boston, 230 F.R.D. 250, 258 (D. Mass. 2005))). “A question is common if it is ‘capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’” Parent/Prof’l Advocacy League v. City of Springfield, 934 F.3d 13, 28 (1st Cir. 2019) (quoting Wal-Mart, 564 U.S. at 350). In this analysis, the decisive factor is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (quoting Wal-Mart, 564 U.S. at 350). Movants suggest that one of the common questions among the proposed class is “[w]hether, due to the COVID-19 pandemic, the petitioners’ continued civil detention at the PCCF violates their Fifth Amendment rights such that they should be released.” [ECF No. 85 at 11]. Petitioners in Savino raised an almost identical common question. See 2020 U.S. Dist.
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LEXIS 61775, at *18–19 (“Whether the conditions of confinement at Bristol County Immigration Detention Facilities, under the current conditions and in light of the COVID-19 pandemic, render class members’ confinement a punishment that violates constitutional standards.”). In particular, Movants note that all members of the proposed class are living in a communal setting that poses a heightened risk for infection in the midst of a pandemic. [ECF No. 85 at 11].
Respondent argues that this question cannot be answered on a class-wide basis because resolution would “require a fact-specific analysis of each class member—including their health, age, grounds for detention, and criminal histories . . . .” [ECF No. 108 at 12]. The Court disagrees. The common question identified by Movants focuses on the conditions at PCCF and the risk of infection to Petitioners in general, rather than on the unique impact of those conditions on individual petitioners. See [ECF No. 85 at 11; ECF No. 119 at 18 (“The confinement of the petitioners and class members subjects them to a heightened and unacceptable risk of contracting COVID-19, for which there is no vaccine or cure.”)]. In a different context, the First Circuit has noted that a common question may be present where a specific “policy or practice” has an impact on a group. Parent/Prof’l Advocacy League, 934 F.3d at 28 n.14 (“The cases plaintiffs cite each involved a definable policy or practice imposed by a single entity or a small group of actors; these features facilitated the formulation of questions apt for class resolution.”).
Other courts have certified classes of inmates who have alleged a general risk of harm due to a policy or practice, even if there might additionally be a unique or distinct impact as to an individual putative class member. See, e.g., Yates v. Collier, 868 F.3d 354, 363 (5th Cir. 2017) (“[T]he district court found, based on the expert testimony, that [the prison’s] heat-mitigation measures . . . . were ineffective to reduce the risk of serious harm to a constitutionally
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permissible level for any inmate, including the healthy inmates . . . .”); Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“[A]lthough a presently existing risk may ultimately result in different future harm for different inmates—ranging from no harm at all to death—every inmate suffers exactly the same constitutional injury when he is exposed to a single statewide [] policy or practice that creates a substantial risk of serious harm.”). In Savino, Judge Young likewise recognized that this question satisfied the commonality requirement of Rule 23(a). See Savino, 2020 U.S. Dist. LEXIS 61775, at *24 (“Here, too, even the otherwise healthy Detainees face a substantial risk of serious harm from COVID-19.”).
The Court finds that Movants have satisfied the commonality requirement under Rule 23(a)(2).
C. Typicality “Commonality looks at the relationship among the class members generally, while typicality focuses on the relationship between the proposed class representative and the rest of the class.” George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 176 (D. Mass. 2012). A plaintiff “may establish typicality by demonstrating that ‘[their] claims arise from the same course of conduct that gave rise to the claims of the absent [class] members.’” In re Relafen Antitrust Litig., 231 F.R.D. 52, 69 (D. Mass. 2005) (second alteration in original) (quoting Duhaime v. John Hancock Mut. Life Ins., 177 F.R.D. 54, 63 (D. Mass. 1997)). “The ‘typicality’ requirement focuses less on the relative strengths of the named and unnamed plaintiffs’ case than on the similarity of the legal and remedial theories behind their claims.” Id. (quoting Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir. 1986)). “Accordingly, the requirement is satisfied when ‘each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the
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defendant’s liability.’” McAdams v. Mass. Mut. Life Ins. Co., No. 99-cv-30284, 2002 U.S. Dist. LEXIS 9944, at *13 (D. Mass. May 15, 2002) (quoting In re Sumitomo Copper Litig., 182 F.R.D. 85, 94 (S.D.N.Y. 1998)); see Ouadani v. Dynamex Operations E., LLC, 405 F. Supp. 3d 149, 162 (D. Mass. 2019) (“Typicality requires that the class representative’s ‘injuries arise from the same events or course of conduct as do the injuries of the class,’ but his claims need not be ‘identical to those of absent class members.’” (quoting Henderson v. Bank of N.Y. Mellon, N.A., 332 F. Supp. 3d 419, 427 (D. Mass. 2018))). Conversely, “[t]ypicality may be defeated where the class representatives are subject to unique defenses which threaten to become the focus of the litigation.” Garcia v. E.J. Amusements of N.H., Inc., 98 F. Supp. 3d 277, 288 (D. Mass. 2015) (citation and internal quotation marks omitted).
Movants state that, as proposed class representatives, they satisfy the typicality requirement because they “are members of the class [and] have suffered the same injury (unsafe confinement) as the proposed class members . . . .” [ECF No. 85 at 12]. Respondent counters that Movants’ “factual circumstances are too varied from those of the class members to satisfy commonality” and therefore “they also are unable to satisfy typicality.” [ECF No. 108 at 16].
The Supreme Court has observed that [t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Wal-Mart, 564 U.S. at 349 n.5 (quoting Gen. Tel. Co. of the Sw., 457 U.S. at 157–58 n.13 (1982)). All class members reside in the same unit at PCCF and are exposed to the same risk of contracting COVID-19, whether or not their individual health conditions may elevate their risk of getting or surviving the virus. [ECF No. 130 at 10]. Movants are thus typical of the class in that they are exposed to the same risks of being detained in Unit C-3 as other class members and
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because their alleged harm arises out of “the same events or course of conduct” as other class members. See Ouadani, 405 F. Supp. 3d at 162. Movants are therefore in a position to “fairly and adequately” protect the interests of other class members. See Wal-Mart, 564 U.S. at 349 n.5.
The Court finds that Movants have satisfied the typicality requirement under Rule 23(a)(3).
D. Relief Available to the Proposed Class Movants seek class certification under Rule 23(b)(2). [ECF No. 85 at 14]. “A class qualifies for certification under Rule 23(b)(2) when ‘the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.’” Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1, 11 (D. Mass. 2010) (quoting Fed. R. Civ. P. 23(b)(2)). “In effect, the actual requirements of the Rule are meant to ensure there is group harm that a group injunctive remedy will correct.” Id. at 12. In addition, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart, 564 U.S. at 360. Respondent claims that Petitioners’ request for release for every class member cannot be resolved on a class-wide basis. [ECF No. 108 at 17]. As Judge Young noted in Savino, however, release is not the only remedy available to Petitioners. See 2020 U.S. Dist. LEXIS 61775, at *25. For example, the Court could issue “an injunction ordering the government to reduce crowding of [d]etainees.” Id.; see also Brito v. Barr, 395 F. Supp. 3d 135, 147–48 (D. Mass. 2019) (granting class certification for civil detainees and noting that Rule 23(b)(2) requirement was met where declaratory judgment could explain bond procedures required under
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Due Process without the court being required to grant bond hearings for all detainees); Reid v.

Donelan, No. 13-cv-30125, 2018 U.S. Dist. LEXIS 181700, at *18 (D. Mass. Oct. 23, 2018)

(stating that “[a] holding that the Constitution provides a right to a reasonableness hearing during

a prolonged detention would resolve all class members’ claims at once” without the need for

individualized remedies, which would satisfy the requirements under 23(b)(2)).

Movants have therefore satisfied the requirements of Rule 23(b)(2) by demonstrating that

a single remedy could provide relief to all class members.

IV. CONCLUSION

Accordingly, Movants’ motion for class certification, [ECF No. 84], is GRANTED. The

Court certifies the following class:

All civil immigration detainees who are Petitioners in this action (i.e., who signed the original petition, [ECF No. 1]) or are otherwise presently detained in Unit C-3 at the PCCF.

Movants, Petitioners Cleberson Quadrelli and Abdy Nizeyimana, are appointed class

representatives and their counsel are appointed as class counsel.

SO ORDERED.

June 8, 2020

/s/ Allison D. Burroughs ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

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