Case 1:20-cv-02472 Document 1 Filed 03/20/20 Page 1 of 22

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JUAN MOROCHO SUMBA, JOSEFINA CORONEL, RAMON GARCIA PONCE, FLORENCIO MORISTICA, JOSE MADRID, JOSE OTERO, MIGUEL MIRANDA,
Petitioners-Plaintiffs, v.
THOMAS DECKER, in his official capacity as Field Office Director, New York City Field Office, U.S. Immigration & Customs Enforcement; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; RONALD P. EDWARDS, in his official capacity as Director, Hudson County Jail; STEVEN AHRENDT, in his official capacity as Warden, Bergen County Jail; WILLIAM ANDERSON, in his official capacity as Warden, Essex County Jail; CARL E. DUBOIS, in his official capacity as Sheriff, Orange County.,
Respondents-Defendants.

Civil Action No. ______

PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR INJUNCTIVE RELIEF

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INTRODUCTION 1. The seven plaintiffs are civil immigration detainees who, by virtue of their serious and chronic
medical conditions like congestive heart failure, diabetes, hypertension, and kidney malfunction, face imminent risk of severe illness or death if they contract COVID-19 in the county jails where they are currently held. These men and woman—all of whom have minimal criminal histories such that Immigration and Customs Enforcement (“ICE”) has the discretion to release them at any time—remain trapped in what are essentially tinderboxes on the verge of explosion as the global pandemic spreads, with much of the sharpest growth in the very areas where plaintiffs are detained. As medical experts have warned for weeks, the virus has now officially entered area jails, including at least one of the four facilities ICE is currently detaining plaintiffs, creating a risk of harm to these seven individuals that is both unconscionably high and entirely preventable. 2. Infectious diseases specialists warn that no conditions of confinement in carceral settings can adequately manage the serious risk of harm for medically-vulnerable individuals during the COVID-19 pandemic. Packed in close quarters with other detainees and correctional staff, forced to share necessities like showers, telephones, toilets and sinks with dozens of others, and deprived of basic forms of preventative hygiene, the plaintiffs are helpless to take the only risk mitigation steps known to limit transmission of the virus. And if the plaintiffs are infected, they face a heightened risk of infection, pneumonia, sepsis and death within jail systems that have a track record of failing to provide adequate medical care even outside times of crisis. 3. Medical experts agree that reducing jail populations is a necessary component of risk mitigation during widespread COVID-19 outbreak, and that officials should first focus on vulnerable populations to reduce harm to the entire population. In line with these
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recommendations, jurisdictions across the country plan to release medically-vulnerable individuals. A failure to heed public health advice to reduce jail numbers will not just harm detainees, but will also have ripple effects across communities as rapid transmission of the disease in carceral setting further taxes already overburdened regional hospitals and healthcare systems. 4. Against this backdrop of extreme crisis, ICE continues to refuse to exercise its discretion to release medically-vulnerable civil detainees from its custody. Before filing suit, plaintiffs notified ICE of their medical conditions and formally requested that they be released in light of the harms they will experience if they contract COVID-19 while detained. Not only has ICE failed to respond or timely release plaintiffs despite the imminence of the harms they face, it has indicated that it has no plans to meaningfully reduce its existing detained population. Faced with a global pandemic that has already caused fundamental changes to our way of life, ICE remains willfully blind to the reality that its failure to act could well result in the serious illness or death of these seven plaintiffs and many more civil detainees in its custody. 5. Because release from custody is the only effective means to protect people with the greatest vulnerability to COVID-19, this suit seeks the immediate release of the plaintiffs from civil immigration detention. The continued imprisonment of these high-risk individuals violates their due process rights both by constituting deliberate indifference to serious medical harm and by failing to provide procedural safeguards commensurate with the serious deprivation of life and liberty that they face.
PARTIES 6. Petitioner-Plaintiff Juan Morocho Sumba is a 45-year-old man who has been incarcerated by
ICE since December 2019 at Orange County Jail. He suffers from aortic valve disease, a type
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of cardiovascular disease, and hypertension. He is in removal proceedings at the Varick Immigration Court in New York, NY. Because of his medical conditions, Mr. Morocho Sumba is at high risk for severe illness or death if he contracts COVID-19. 7. Petitioner-Plaintiff Josefina Coronel is a 48-year-old survivor of human trafficking who has been incarcerated by ICE since October 2019 at Hudson County Jail. She suffers from congestive heart failure, hypertension, and diabetes. She was previously in removal proceedings at the Varick Immigration Court in New York, NY until she won her case in February 2020. Because of her medical conditions, she is at high risk for severe illness or death if she contracts COVID-19. 8. Petitioner-Plaintiff Ramon Garcia Ponce is a 56-year-old man who has been incarcerated by ICE since January 2020 at Hudson County Jail. He has a history of stroke and suffers from diabetes and high blood pressure. He is in immigration proceedings at the Varick Immigration Court in New York, NY. Because of his medical conditions, Mr. Garcia Ponce is at high risk for severe illness or death if he contracts COVID-19. 9. Petitioner-Plaintiff Florencio Moristica Ochoa has been incarcerated by ICE since July 2018 at Bergen County Jail. He suffers from a severe neurocognitive disorder which impairs his ability to function or understand his surroundings. He prevailed in removal proceedings at the Varick Immigration Court in New York, NY and the government has indicated it plans to appeal the immigration judge’s decision to the Board of Immigration Appeals. Because of his severe intellectual disability, Mr. Moristica Ochoa is at high risk for severe illness or death if he contracts COVID-19. 10. Petitioner-Plaintiff Jose Madrid is a 41-year-old man who has been incarcerated by ICE at Bergen County Jail since January 2020. He has type 2 diabetes, and suffers from obesity and
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impaired vision as a result, and has cataracts. He is in removal proceedings at the Varick Immigration Court in New York, NY. Because of his medical conditions, Mr. Madrid is at high risk for severe illness or death if he contracts COVID-19. 11. Petitioner-Plaintiff Jose Otero is a 38-year-old man who has been incarcerated by ICE since November 2019 at Essex County Jail. He has had a nephrectomy (removal of left kidney), partial liver resection, left lung resection, and has been diagnosed with Post Traumatic Stress Disorder, major depressive disorder, and a major neurocognitive disorder. He is in removal proceedings at the Varick Immigration Court in New York, NY. Because of his medical and mental health conditions, Mr. Otero is at high risk for severe illness or death if he contracts COVID-19. 12. Petitioner-Plaintiff Miguel Miranda is a 44-year-old man who has been incarcerated by ICE since February 2020 at Bergen County Jail. He has type 2 diabetes and suffers from gastrointestinal problems. He is in removal proceedings at the Varick Immigration Court in New York, NY. Because of his medical conditions, Mr. Miranda is at high risk for severe illness or death if he contracts COVID-19. 13. Respondent-Defendant Thomas Decker is named in his official capacity as the Director of the New York Field Office for Immigration and Customs Enforcement within the Department of Homeland Security. He is responsible for the administration of immigration laws and the execution of detention and removal determinations for individuals under the jurisdiction of the New York Field Office. As such, he is the custodian of Plaintiffs. 14. Respondent-Defendant Chad F. Wolf is named in his official capacity as the Secretary of the Department of Homeland Security. He is responsible for the administration of the immigration laws pursuant to 8 U.S.C. § 1103(a); routinely transacts business in the Southern District of
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New York; he supervises Respondent Decker; and is legally responsible for the pursuit of noncitizens’ detention and removal. As such, he is the custodian of Plaintiffs. 15. Respondent-Defendant William Barr is named in his official capacity as the Attorney General of the United States. In this capacity, he is responsible for the administration of the immigration laws as exercised by the Executive Office for Immigration Review, pursuant to 8 U.S.C. § 1103(g). He routinely transacts business in the Southern District of New York and is legally responsible for administering removal and bond proceedings and the standards used in those proceedings. As such, he is the custodian of Plaintiffs. 16. Respondent-Defendant Ronald P. Edwards is named in his official capacity as the Director of the Hudson County Jail. In this capacity, he is the custodian of two of the Plaintiffs. His office is located at the Hudson County Jail, Kearny, NJ. 17. Respondent-Defendant Steven Ahrendt is named in his official capacity as Warden of the Bergen County Jail. In this capacity, he is the custodian of three of the Plaintiffs. His office is located at the Bergen County Jail, Hackensack, NJ. 18. Respondent-Defendant William Anderson is named in his official capacity as Warden of the Essex County Jail. In this capacity, he is the custodian of one of the Plaintiffs. His office is located at the Essex County Jail, Newark, NJ. 19. Respondent-Defendant Carl E. DuBois is named in his official capacity as Sheriff of Orange County. He is responsible for overseeing the administration of Orange County Jail. In this capacity, he is the custodian of one of the Plaintiffs. His office is located at the Orange County Jail, Goshen, NY.
JURISDICTION & VENUE 20. This Court has subject matter jurisdiction over this Petition pursuant to 28 U.S.C. § 1331
(federal question); 28 U.S.C. § 2241 (habeas corpus); 28 U.S.C. § 1651 (the All Writs Act); 5

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42 U.S.C. § 1983 (Civil Rights Act); and Article I, Section 9, clause 2 of the Constitution (the Suspension Clause). Venue properly lies in this district under both 28 U.S.C. § 1391 and 28 U.S.C. § 2241.
EXHAUSTION 21. No statutory exhaustion requirement applies to Plaintiffs’ claims of unlawful detention.
However, the plaintiffs have each filed requests for release with ICE in light of their preexisting medical conditions and the resulting risk of severe illness or death they face if infected with COVID-19. ICE has not responded to any of these requests; the failure to timely adjudicate them invites the very harm Plaintiffs seek to avoid. 22. The only other process that remains available to them is seeking a constitutionally-flawed bond hearing under 8 U.S.C. § 1226(a), which as the “overwhelming” majority of judges in this Circuit have found, violates detainees due process rights even under normal circumstances. Fernandez Aguirre v. Barr, 19-CV-7048 (VEC), 2019 WL 3889800, at *3 (S.D.N.Y. Aug. 19, 2010). Moreover, as detailed below, the current pandemic has prevented and will continue to prevent Plaintiffs from communicating with their counsel; from collecting evidence required to meet their burden of proof under existing standards in § 1226(a) bond hearings; and from accessing the Immigration Court itself. Plaintiffs are thus unable to promptly access any meaningful administrative remedy and delay will lead to irreparable injury to their health and well-being.
STATEMENT OF FACTS The New York Metropolitan Area is an Epicenter of the Global Pandemic 23. On March 13, 2020, President Trump declared a national emergency in response to the
coronavirus pandemic. At the time, there were over 1,600 confirmed cases in the United States
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and at least 46 deaths. Today, one week later, exponential growth in the outbreak has caused at least 15,650 cases to be identified in the country and led to the death of at least 202 patients with the virus. 24. The New York metropolitan area is now the epicenter of the COVID-19 in the United States with over 7,800 confirmed cases in New York and New Jersey and 44 virus-related deaths. 25. Because the coronavirus that causes COVID-19 is particularly contagious, authorities are taking unprecedented precautions to manage the public health crisis and minimize the transmission of the virus by reducing the opportunity for large groups of people to congregate. Governor Andrew Cuomo of New York just today ordered all non-essential workers to stay home; New York and New Jersey recently banned all gatherings of more than 50 people; and New York City closed all schools, bars and restaurants. The Heightened Risk of Severe Illness or Death from COVID-19 in Jails 26. Incarcerated persons have limited ability to take the precautionary steps that public health experts recommend. Jail design and operations make it impossible for the plaintiffs to engage in necessary social distancing, and they have no control over the movements of others with whom they live in close proximity and share spaces and resources. 27. According to infectious disease specialist Dr. Ranit Mishori, jails, prisons, and detention centers are settings that pose a “significantly higher” risk for the spread of infectious diseases like COVID-19 than the general community. See Declaration of Ranit Mishori.¶ 16 (“Mishori Decl.”). In China, where the pandemic began, coronavirus suddenly exploded in prisons in early March, with 500 cases identified in five different facilities. Jails that hold pre-trial detainees, like the ones where Plaintiffs are currently detained by ICE, are a particularly high risk setting for contagion because of their large turnover of detainees on a daily basis.
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28. The highest known person-to-person transmission rate for COVID-19 to date has taken place in settings where people are in close proximity to each other without an ability to distance themselves: in a skilled nursing home facility in Kirkland, Washington, and on cruise ships in Japan and off the coast of California.
29. The conditions of jails such as those utilized by ICE in the New York area pose an even higher risk of the spread of COVID-19 than non-carceral locations like a nursing home or cruise ship due to their closer quarters, the proportion of vulnerable people detained, and lack of medical care resources. Id. ¶¶ 22-23.
30. Even when family or in-person legal visitation to jails is sharply curtailed, it is impossible to seal entry and exit for staff, contractors, and vendors. Detainees within such facilities thus cannot be isolated from viruses circulating in the broader community. Id. ¶ 17.
31. Preventative strategies utilized by the general public, like social distancing, hand sanitizing, and proper ventilation are neither readily available nor particularly effective. As a result, rapid transmission and widespread outbreak is virtually inevitable. Id. ¶¶ 20- 21.
32. Once an infectious disease like COVID-19 enters a facility, there is frequently insufficient protective gear for staff and detainees, who live in close quarters and share common spaces and resources. Id. ¶ 19. When an outbreak occurs, jails are ill-equipped to engage in adequate containment and proper medical treatment for sick detainees. Id. ¶¶ 23-24.
33. Medical experts agree that reducing the number of detainees is a necessary component of risk mitigation in a pandemic as widespread and serious as the one currently spreading across the United States. “Not doing so is not only inadvisable but also reckless given the public health realities we now face in the United States.” Id. ¶ 45. Any reduction in detained populations
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must focus on the most vulnerable detainees, id. ¶ 47, in order to safeguard their health and the health of other detainees and jail staff. 34. As medical staff and resources within the facility becomes overwhelmed, regional hospitals and health centers end up bearing the brunt of providing healthcare for sick detainees—who are disproportionately likely to be those with pre-existing medical vulnerabilities. The rapid spread of an infectious disease like COVID-19 within a jail ultimately results in adverse public health outcomes for the broader community and region. Id. ¶¶ 26. 35. As a result, reducing prison populations does not just benefit detainees and correctional staff, it also benefits the community as a whole by reducing the burden on healthcare resources that are already in high demand. Id. ¶ 49. 36. In the face of the current crisis, correctional systems around the country and the world, including New York City, have announced efforts to reduce their detained populations. Many of these jurisdictions are focusing their release efforts on individuals classified as high-risk. These jurisdictions include Los Angeles County, CA, Cook County, IL, a county in Ohio, Hennepin County, MN, and San Francisco, CA. 37. Despite the consensus in the medical community about the need to reduce population size to improve outcomes for public health and safety, and in sharp contrast to the efforts of jurisdictions around the United States to comply with such recommendations, ICE recently announced that it has no plans to release individuals as a COVID-19 risk mitigation strategy. The Risks to Plaintiffs’ Health are Particularly Acute in the Jails Where ICE is Detaining Them. 38. The New York-area jails where the plaintiffs are detained—Bergen County Jail, Hudson County Correctional Facility, Essex County Jail, and Orange County Jail—are especially vulnerable to rapid transmission of COVID-19 because of the unsanitary and hazardous
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conditions within the facilities and their history of providing poor treatment. Mishori Decl. ¶¶ 32-43. As a result, the irreparable harm Plaintiffs will suffer once the virus reaches them is imminent. 39. Just yesterday, the Bergen County Jail reported that a staff member had tested positive for COVID-19. There is also a confirmed case of a staff member in the medical unit contracting COVID-19 in at the Elizabeth Detention Center, another ICE detention facility in New Jersey. And other non-immigration facilities in the New York area, including Rikers Island, are reporting confirmed COVID-19 cases among both staff and detainees. 40. ICE detainees at all four jails have also reported that conditions have deteriorated in recent days as the facilities take ad hoc, medically inadvisable and insufficient measures to try to contain the likelihood of transmission, including by widespread and arbitrary use of solitary confinement at Hudson, Orange and Bergen County Jails. 41. Detainees currently held at the facilities also describe insufficient hand soap, no hand sanitizer, and no access to cleaning supplies, and previously reported at times being deprived of toilet paper. Some detainees also report that jail officials have forbidden them from flushing toilets frequently, which adds to unsanitary conditions. Attorneys who recently visited the jails confirmed that there was a lack of hand soap in the visitors’ bathrooms, meaning that visitors would carry in whatever germs they entered the facility with. 42. Further contributing to the elevated risk of harm is these jails’ track record of failure to provide adequate and prompt medical care even before the current pandemic. See Declaration of Marinda Van Dalen ¶¶ 18-45 (“Van Dalen Decl.”). Examples of inadequate care at these specific facilities includes a history of denial of vital medical treatment such as dialysis and blood transfusions; subjecting detainees in need of surgeries to unconscionable delays; altering
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established treatment regimens; failing to provide necessary mental health services; overuse of solitary confinement; and ignoring repeated requests for care from detainees with serious symptoms. Id. ¶¶ 23-36. These deficiencies in medical treatment have placed individuals at risk of strokes, heart attacks, renal failure, amputation, life-threatening heart conditions, kidney failure, and blindness. Id. ¶¶ 41-44. Last year, a mumps outbreak at Bergen County Jail resulted in the quarantine of dozens of immigration detainees for several weeks. 43. The Department of Homeland Security’s own Office of the Inspector General also recently reported on the substandard care, long waits for medical care and hygiene products, and mistreatment in ICE detention facilities. 44. In light of their failure to provide consistent access to basic hygiene and adequate health care even under normal circumstances, it appears unlikely that ICE’s New York City-area jails will be able to competently and safely respond to the COVID-19 pandemic. The COVID-19 Pandemic Presents a Grave Risk of Harm, Including Serious Illness and Death to the Elderly and Those with Certain Medical Conditions 45. COVID-19 can lead to respiratory failure, kidney failure, and death. Mishori Decl. ¶ 9. Older patients and those with chronic underlying conditions are at a particularly high risk for severe cases and complications. Id. Underlying medical conditions that may increase the risk of serious COVID-19 for individuals of any age include blood disorders, chronic kidney or liver disease, immunosuppression, endocrine disorders (including diabetes), metabolic disorders, heart and lung disease, neurological and neurologic and neurodevelopmental conditions, and current or recent pregnancy. Id. ¶ 10. 46. The need for intensive care and the likelihood of death is much higher from COVID-19 than from influenza. Id. ¶ 9. Complications from COVID-19, including severe damage to lungs, heart, liver, or other organs, can manifest at an alarming pace and serious deterioration can
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occur in a matter of days. Id. ¶ 12. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza. Id. ¶ 9. Preliminary data from China shows serious illness, sometimes resulting in death, occurs in up to 16% of cases, with a higher rate among those older and high-risk individuals. Id. 47. Those in high-risk categories who do not die may have prolonged serious illness requiring hospital care, including ventilators that will likely be in very short supply, and a team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians. Patients who do not die from serious cases of COVID-19 may face prolonged recovery, including rehabilitation from neurological damage and loss of respiratory capacity. Id. ¶ 11. Plaintiffs Face a Heightened Risk of Severe Harm if They Contract COVID-19 While Detained. 48. The seven plaintiffs in this case—all in civil immigration custody—face unprecedented and imminent harm once COVID-19 begins to spread in the jails where ICE is detaining them. Each plaintiff has one or more underlying medical conditions that renders him or her particularly vulnerable to severe illness and death if they contract the disease. 49. Juan Morocho Sumba. Mr. Morocho Sumba is a 45-year-old father to two U.S. citizen children, one of whom has required speech therapy and both of whom have exhibited emotional difficulties related to their father’s incarceration. Mr. Morocho Sumba has no criminal convictions and a single open charge that he is vigorously contesting. He has been incarcerated by ICE at Orange County Correctional Facility since December 2019. 50. Mr. Morocho Sumba suffers from aortic valve disease and hypertension. He required an aortic valve replacement, a type of open-heart surgery in 2014. In December 2019, Mr. Morocho Sumba was taken to the emergency room after experiencing chest pain. The emergency room
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staff found that he had an abnormal electrocardiogram and an enlarged heart and advised that he see a cardiologist. Since that emergency room visit, Mr. Morocho Sumba has not seen a cardiologist while in ICE custody. 51. Mr. Morocho Sumba is vulnerable to severe illness or death from COVID-19 because of his heart condition and hypertension. 52. Josefina Coronel. Ms. Coronel is a 48-year-old survivor of human trafficking who has been incarcerated by ICE at Hudson County Jail since October 2019. The Immigration Judge granted her claims for withholding of removal and protection under the Convention against Torture on February 26, 2020. ICE nevertheless continues to incarcerate Ms. Coronel. 53. Ms. Coronel suffers from congestive heart failure, hypertension, and diabetes. In July 2019, she had a severe cardiac incident resulting in cardiac catheterization and hospitalization for several days. 54. Ms. Coronel is vulnerable to severe illness or death from COVID-19 because of her heart condition, hypertension, and diabetes. 55. Ramon Garcia Ponce. Mr. Garcia Ponce is a 56-year-old father to four U.S. citizen children who is deeply rooted in New York City. He has been incarcerated by ICE at Hudson County Correctional Facility since January 2020. Mr. Garcia Ponce’s contacts with the criminal justice system have been limited to summons largely related to his work as a food vendor. 56. In January 2019, Mr. Garcia Ponce presented at Lincoln Hospital with a severe headache. He was diagnosed with subarachnoid hemorrhage, a type of life-threatening stroke, and transferred to Bellevue Hospital for neurosurgery. Mr. Garcia Ponce also suffers from diabetes and high blood pressure.
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57. Mr. Garcia Ponce is vulnerable to severe illness or death from COVID-19 because of his history of stroke, diabetes, and high blood pressure.
58. On March 17, 2020, Mr. Garcia Ponce, through counsel, submitted a motion to expeditiously calendar a bond hearing, within 48 hours of his motion. The Immigration Court responded by ignoring the motion and calendaring the case for March 30, 2020.
59. Florencio Moristica Ochoa. Mr. Moristica Ochoa has been incarcerated by ICE since July 2018 at Bergen County Jail. On March 2, 2020, the immigration judge terminated Mr. Moristica’s removal proceedings, finding that in light of his severe cognitive impairment, the government had not provided evidence sufficient to meet its burden to establish a charge of removability. His criminal history consists of two convictions for disorderly conduct, a noncriminal violation under state law, and he has a cousin with whom he will reside if released.
60. Mr. Moristica Ochoa suffers from a uniquely severe neurocognitive disorder that impairs his ability to function or understand his surroundings. This disorder affects him to a severe degree such that he is unable to articulate his own age or answer basic questions about his personal history or present circumstances. He is frequently unable to understand his medical circumstances, need for treatment, and the consequences of failing to follow the recommendations of medical professionals. Mr. Moristica will be unable to modify his behavior in accordance with the advice of public health officials, lacks the capacity to follow directions regarding preventative measures, and cannot comprehend how to guard himself from COVID-19 infection under conditions where the facility is not taking sufficient steps to protect him.
61. Mr. Moristica Ochoa is vulnerable to severe illness or death from COVID-19 because of his severe intellectual disability.
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62. After he prevailed in his removal case before the immigration judge, Mr. Moristica moved for a new bond hearing on March 13, 2020. His counsel has made several attempts to communicate with the court about calendaring this bond hearing but received no response.
63. Jose Madrid. Mr. Madrid is a 41-year-old man who has been incarcerated by ICE at Bergen County Jail since January 2020. He has lived in the United States for over 20 years, and his entire criminal record consists of two non-criminal convictions for disorderly conduct, a violation. He is a beloved member of his family, which consists of U.S. citizens and lawful permanent residents.
64. Mr. Madrid has type 2 diabetes. This condition has already affected his health, as he is obese and has impaired vision, as well as cataracts. He was previously being treated at a health center in his community in Peekskill, NY, where a doctor had prescribed him two medications to control his diabetes. At Bergen, he is only receiving one medication.
65. Because of his medical conditions, Mr. Madrid is at high risk for severe illness or death if he contracts COVID-19.
66. Jose Otero. Mr. Otero is a 38-year-old man who has been incarcerated by ICE since November 2019 at Essex County Jail. His only contact with the criminal legal system was two arrests, both of which were dismissed. He will return to living with his U.S. citizen-include, with whom he has resided since 2003, if released.
67. Mr. Otero was the victim of a violent assault that forced him to have a nephrectomy (removal of left kidney), partial liver resection, and left lung resection. As a result of having major organs of his body partially removed, his immune system is compromised. Mr. Otero has also been diagnosed with Post Traumatic Stress Disorder, major depressive disorder, and a major
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neurocognitive disorder. Mr. Otero suffers from constant pain and health issues that require specialized care, and have not been adequately treated at Essex County Jail. 68. Because of his medical and mental health conditions, Mr. Otero is at high risk for severe illness or death if he contracts COVID-19. 69. Miguel Miranda. Mr. Miranda is a 44-year-old man who has been incarcerated by ICE since February 2020 at Bergen County Jail. His only arrest was dismissed and sealed. If released, he will return to living with his partner of multiple years and his stepchildren and working as a delivery person for the Italian restaurant where he was previously employed. 70. Mr. Miranda has type 2 diabetes and suffers from gastrointestinal problems. He is in removal proceedings at the Varick Immigration Court in New York, NY. Because of his medical conditions, Mr. Miranda is at high risk for severe illness or death if he contracts COVID-19. No Other Forum, Including ICE and Immigration Courts, Can Provide Meaningful Relief to Abate the Harm to Plaintiffs. 71. ICE has the authority to release individuals like the plaintiffs, whose detention is governed by the discretionary detention statute, 8 U.S.C. § 1226(a). Despite the exigent circumstances, ICE continues to improperly deny release or bond to plaintiffs, whose equities and minimal criminal histories demonstrate that they are neither dangers nor risks of flight. 72. Counsel for the plaintiffs, The Legal Aid Society (“LAS”) and The Bronx Defenders (“BXD”), routinely liaise with ICE officials and with counterparts at the U.S. Attorney’s Office to secure the release of clients with severe medical conditions or other compelling circumstances on conditions or reasonable bond. 73. Consistent with this practice, both LAS and BXD, reached out to the government to identify high-risk clients, including the seven plaintiffs in this case. Through counsel, all plaintiffs submitted detailed release requests to ICE, which described the medical conditions that render
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them highly vulnerable to adverse health outcomes from COVID-19. As of this filing, the government has not acted to release any of the plaintiffs in this case. 74. Under normal circumstances, individuals like the plaintiffs would be able to seek either initial or changed-circumstances bond hearings in the immigration courts. At such hearings, agency precedent requires the individuals to bear the burden of proving they are not a danger nor a flight risk in order to win release on bond. 75. The COVID-19 pandemic has caused the Varick Immigration Court, where all seven plaintiffs had or have their removal proceedings, to no longer provide an effective venue for detainees to vindicate their right to review their detention through bond hearings. This is true for a number of factors: detainees can no longer consistently or privately communicate with their counsel; the Immigration Court is under-resourced and incapable of providing effective mechanisms for attorneys to represent their clients during the present public health crisis requiring remote appearances; and detainees, their family members, and counsel can no longer collect the required evidence and documentation to meet their burden of proof in bond hearings given the closure of most public and private institutions and restrictions on movement. 76. First, all four facilities at which plaintiffs are detained ended contact visits for legal visitation in the past week due to COVID-19. However, because there is no other effective, consistently functional, and confidential manner to communicate with clients, the end of contact visits has rendered it prohibitively difficult to have the in-depth private conversations required for representation in bond or other matters. 77. While Orange and Hudson County Jails have video teleconference systems that attorneys can use to speak to detainees, the systems at both facilities are plagued by technological problems including poor quality of video and audio, frequent malfunctions, and a lack of privacy at the
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jails. Since the onset of the pandemic, attorneys have been forced to use the video systems with much greater frequency but the systems have not expanded capacity. As a result, scheduled appointments have been canceled, no additional time slots have been made available, and audio and video quality has deteriorated further. As such, this method of communicating with plaintiffs is not an adequate substitute. 78. Bergen and Essex County Jails lack any video teleconference system. Neither jail has set up a system to allow attorneys or detainees to make legal phone calls that are free, consistently confidential, or easily accessible. 79. Second, the Varick Immigration Court has not formulated policies or put into practice protective mechanisms that allow attorneys to continue to represent their clients in the context of this public health crisis. Normally, attorneys appear in person from Court, even as their clients appear either by video teleconference or in person. Now, however, as officials at every level of government have issued instructions to avoid contact and stay at home to the greatest extent possible, attorneys are frequently seeking to appear by telephone and find effective mechanisms of service of documents to the Immigration Court. While some immigration judges accept filing of documents by email, others are refusing such service, rendering it difficult for attorneys who are at risk of spreading or contracting COVID-19 to represent clients without coming into contact with others through going to the post office or the Immigration Court filing window. 80. Several immigration judges who staff the detained docket at Varick Immigration Court have also been absent from Court this past week and stated that they would be out in the coming week as well. Others have sua sponte adjourned cases without requests for continuances from
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either party in the proceedings because of delays caused by pandemic-related dysfunction at the court. 81. A number of attorneys have filed urgent requests for bond hearings to be scheduled on behalf of their clients in the past two weeks but almost all have been unable to obtain responses from court staff, or been scheduled for hearings within weeks or longer instead of within days as requested. 82. Lastly, due to widespread closure of government offices and private businesses, and the directives for individuals to stay at home to the greatest extent possible, it has become prohibitively difficult for detainees to meet their burden of proof in bond hearings. 83. Courts in New York recently closed except for non-essential functions, and have stopped producing certificates of disposition or copies of court files in response to records requests. However, immigration judges routinely draw adverse inferences and deny bond when individuals fail to produce documentary evidence, such as criminal court documents, police reports, hospital and school records, to support their applications for bond. Making such a showing is nearly impossible under the present circumstances.
CAUSES OF ACTION FIRST CLAIM
Violation of the Right to Substantive Due Process 84. Defendants’ conduct violates Plaintiffs’ right to substantive due process under the Fifth
Amendment of the United States Constitution. 85. Defendants’ conduct violates Plaintiffs’ right to substantive due process under the Fourteenth
Amendment of the United States Constitution.
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SECOND CLAIM Violation of the Right to Procedural Due Process 86. Defendants’ conduct violations Plaintiffs’ right to procedural due process under the Fifth Amendment of the United States Constitution. 87. Defendants’ conduct violates Plaintiffs’ right to procedural due process under the Fourteenth Amendment of the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs prays that this Court grant the following relief:
1) Assume jurisdiction over this matter; 2) Issue an order directing Defendants to immediately release Plaintiffs from custody on their
own recognizance or on reasonable conditions of supervision; 3) In the alternative, issue an order requiring Defendants to provide Plaintiffs with
constitutionally adequate, individualized hearings within 48 hours at which the Department of Homeland Security bears the burden of establishing by clear and convincing evidence that continued detention is justified in light of the grave risks to Plaintiffs’ health and wellbeing in ICE custody, and at which Plaintiff’s vulnerability to COVID-19 is weighed as a factor in determining suitability for release; and at which ability to pay and alternative conditions of release are considered, or to immediately release Plaintiffs; 4) Award reasonable attorneys’ fees and costs for this action; 5) Grant any other and further relief that this Court deems just and proper.
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Dated: March 20, 2020 New York, NY
Suchita Mathur Zoe Levine THE BRONX DEFENDERS 360 East 161st Street Bronx, New York, 10451 Tel. (347) 842-1295 suchitam@bronxdefenders.org

Respectfully submitted,
Janet E. Sabel, Attorney-in-Chief Adriene Holder, Attorney-in-Charge, Civil Hasan Shafiqullah, Attorney-in-Charge,
Immigration Law Unit Lilia Toson, Supervising Attorney,
Civil Law Reform Unit Julie Dona, Supervising Attorney,
Immigration Law Unit Aadhithi Padmanabhan, Of Counsel THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, NY, 10038 Tel. (212) 298-3144 apadmanabhan@legal-aid.org

By: /s/ Suchita Mathur____
Suchita Mathur Counsel for Plaintiffs
Cell: (240) 461-9448

By: /s/ Aadhithi Padmanabhan
Aadhithi Padmanabhan Counsel for Plaintiffs
(646) 574-2761

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 Case 1:20-cv-02472-UA Document 17 Filed 03/23/20 Page 1 of 32

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JOSEFINA CORONEL, et al.,
Petitioners-Plaintiffs, v.
THOMAS DECKER, in his official capacity as Field Office Director, New York City Field Office, U.S. Immigration & Customs Enforcement, et al.
Respondents-Defendants.

Civil Action No. 20-cv-2472

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER

Suchita Mathur Zoe Levine THE BRONX DEFENDERS 360 East 161st Street Bronx, New York, 10451 Tel. (347) 842-1295 suchitam@bronxdefenders.org

Janet E. Sabel, Attorney-in-Chief Adriene Holder, Attorney-in-Charge, Civil Hasan Shafiqullah, Attorney-in-Charge,
Immigration Law Unit Lilia Toson, Supervising Attorney,
Civil Law Reform Unit Julie Dona, Supervising Attorney, Immigration Law Unit Aadhithi Padmanabhan, Of Counsel THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, NY, 10038 Tel. (212) 298-3144 apadmanabhan@legal-aid.org

Cell: (240) 461-9448 (Suchita Mathur) (646) 574-2761 (Aadhithi Padmanabhan)

Case 1:20-cv-02472-UA Document 17 Filed 03/23/20 Page 2 of 32
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................2
I. THE PLAINTIFFS ARE CIVIL IMMIGRATION DETAINEES WHO FACE A GRAVE RISK OF SEVERE HARM IF THEY CONTRACT COVID-19 .......................…………2
II. JAILS PRESENT HEIGHTENED RISK OF TRANSMISSION OF COVID-19 ....…..…6 III. THE RISKS OF HARM IS ESPECIALLY PRONOUNCED IN THE JAILS WHERE
THE PLAINTIFFS ARE DETAINED ......................................................................……..8 IV. THE GOVERNMENT HAS NOT EXERCISED ITS DISCRETION TO MITIGATE
THE RISK OF HARM TO THE PLAINTIFFS…………………………………………10 ARGUMENT .................................................................................................................................12
I. THE PLAINTIFFS WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF A TEMPORARY RESTRAINING ORDER.........................................................................12
II. THE PLAINTIFFS ARE SUSTANTIALLY LIKELY TO PREVAIL ON THEIR CLAIM THAT THE GOVERNMENT IS DELIBERATELY INDIFFERENT TO THEIR SERIOUS MEDICAL NEEDS..........................................................................................14 A. The Plaintiffs in this Case Have Serious, Unmet Medical Needs ..........................15 B. Defendants are Acting with Deliberate Indifference Towards the Plaintiffs’ Serious Medical Need. ...........................................................................................17
III. PLAINTIFFS ARE SUBSTANTIALLY LIKELY TO PREVAIL ON THEIR CLAIM THAT CONTINUED DETENTION WITHOUT ADEQUATE PROCEDURAL PROTECTIONS VIOLATES DUE PROCESS ................................................................19
IV. THE REMAINING FACTORS WEIGH HEAVILY IN FAVOR OF A TEMPORARY RESTRAINING ORDER ..................................................................................................22
V. THE COURT SHOULD ORDER THE PLAINTIFFS’ IMMEDIATE RELEASE ON REASONABLE CONDITIONS, THE SOLE EFFECTIVE REMEDY HERE ...............23
CONCLUSION ..............................................................................................................................25
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TABLE OF AUTHORITIES Cases and Agency Decisions Adejola v. Barr, 408 F. Supp. 3d 284 (W.D.N.Y. 2019) .............................................................20 Blandon v. Barr, No. 6:18-CV-06941 EAW, 2019 WL 7759228 (W.D.N.Y. Oct. 28, 2019) ....20 Brevil v. Jones, No. 17 CV 1529-LTS-GWG, 2018 WL 5993731 (S.D.N.Y. Nov. 14, 2018) ...20 Brown v. Plata, 563 U.S. 493 (2011)...........................................................................................24 Charles v. Orange County, 925 F.3d 73 (2d Cir. 2019) ..............................................................15 D’Alessandro v. Mukasey, No. 08 Civ. 914, 2009 WL 79957 (W.D.N.Y. Mar. 25, 2009).........24 Darnell v. Piniero, 849 F.3d 17 (2d Cir. 2017)……………………...……………………..…...15 Dawson v. Asher, 2:20-cv-409-JLR-MAT, Dkt. No. 33 (W.D. Wash. Mar. 19, 2020)……..16,17 Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392 (2d Cir. 1975) ..25 Diaz-Ceja v. McAleenan, No. 19-CV-824-NYW, 2019 WL 277421112 (D. Colo. July 2, 2019) ............................................................................................................................................20 Elkmiya v. Dep’t of Homeland Security 484 F.3d 151 (2d Cir. 2007)........................................23 Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009) ..............................12 Fallatah v. Barr, No. 19-CV-1032, 2020 WL 428060 (W.D.N.Y. Jan. 28, 2020)......................20 Fernandez Aguirre v. Barr, 19-CV-7048 (VEC), 2019 WL 3889800 (S.D.N.Y. Aug. 19, 2019) ............................................................................................................................................20 Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005) .....................22 Guerrero v. Decker, No. 19 Civ. 11644 (KPF), 2020 WL 1244124 (S.D.N.Y. Mar. 16, 2020) ............................................................................................................................................20 Helling v. McKinney, 509 U.S. 25 (1993)....................................................................................15 Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003)............................................................12
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Henrietta D. v. Giuliani, 119 F.Supp.2d 181 (E.D.N.Y. 2000) ...................................................12 Hernandez-Lara v. Immigration & Customs Enf’t Acting Dir., No. 19-cv-394-LM, 2019 WL 3340697 (D.N.H. July 25, 2019)..................................................................................................20 In re Extradition of Manrique, No. 19-mj-71055-MAG-1 (TSH), 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020)..............................................................................................................................14 Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005) .........................................................................18 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) .............................................................................15 Joseph v. Decker, No. 18-CV-2640 (RA), 2018 WL 6075067 (S.D.N.Y. Nov. 21, 2018) .........20 Kiaddi v. Sessions, 18-cv-1584 (AT), (S.D.N.Y. Mar. 2, 2018) (slip op.) ..................................24 Liranzo de la Cruz v. Barr, No. 19-CV-7375 (AKH) (S.D.N.Y. Sept. 13, 2019) .......................20 Mapp v. Reno 241 F.3d 221 (2d Cir. 2001) .................................................................................23 Martinez v. McAleenan, 385 F. Supp. 3d 349 (S.D.N.Y. 2019)………………………….…….21 Mathews v. Eldridge, 424 U.S. 319 (1976)..................................................................................21 Matter of Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006)………………………………………..11,20 Matter of R-A-V-P-, 27 I. & N. Dec. 803 (B.I.A. 2020) ..............................................................20 Medley v. Decker, 18-cv-7361 (AJN), 2019 WL 7374408 (S.D.N.Y. Dec. 11, 2019)................19 Melvin v. Cty. of Westchester, No. 14-CV-2995, 2019 WL 1227903 (S.D.N.Y. Mar. 15, 2019) ......................................................................................................................................18 Mullins v. City of New York, 626 F.3d 47 (2d Cir. 2010) ............................................................17 Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) .........................................................................14 Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) ..............................................................23 Narvaez v. City of New York, No. 16-CV-1980 (GBD), 2017 WL 1535386 (S.D.N.Y. Apr. 17, 2017) ............................................................................................................................................15
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Navarijo-Orantes v. Barr, No. 19-CV-790, 2019 WL 5784939 (W.D.N.Y. Nov. 6, 2019) .......20 Pensamiento v. McDonald, 315 F. Supp. 3d 684 (D. Mass. 2018) .............................................20 Rajesh v. Barr, No. 6:19-cv-06415-MAT, 2019 WL 5566236 (W.D.N.Y. Oct. 29, 2019) ........20 Red Earth LLC v. United States, 657 F.3d 138 (2d Cir. 2011) ....................................................12 Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904 (2d Cir. 1990) .........................................12 Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974) ..........................................................................24 Rodriguez v. DeBuono, 175 F.3d 227 (2d Cir. 1999) ..................................................................12 Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266 (S.D.N.Y. May 23, 2018) ........22 S.N.C. v. Sessions, No. 18 CIV. 7860 (LGS), 2018 WL 6175902 (S.D.N.Y. Nov. 26, 2018) ....23 Spencer Trask Software & Info. Servs., LLC v. RPost Int'l, Ltd., 190 F. Supp. 2d 577 (S.D.N.Y. 2002) ............................................................................................................................................12 Thomas v. Ashcroft, 470 F.3d 491 (2d Cir. 2006)........................................................................17 Todaro v. Ward, 565 F.2d 48 (2d Cir. 1997) ...............................................................................18 Velasco Lopez v. Decker, No. 19-cv-2912 (ALC), 2019 WL 2655806 (S.D.N.Y. May 15, 2019) ............................................................................................................................................20 United States v. Barkman, No. 3:19-cr-52-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020)……………………………………………………………………………….21,22 United States v. Raihan, No. 20-cr-68-BMC-JO (E.D.N.Y. Mar. 12, 2020 ................................21 Unites States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020)……………………………………………………………………………………1,13,19,21 Wilson v. Seiter, 501 U.S. 294 (1991)..........................................................................................16
Statutes, Rules, and Regulations 8 U.S.C. § 1226(a) ....................................................................................................................10,20
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Miscellaneous Darwin BondGraham, San Francisco Officials Push to Reduce Jail Population to Prevent Coronavirus Outbreak – THE APPEAL (Mar. 11, 2020) https://theappeal.org/coronavirus-sanfrancisco-reduce-jail-population/.....................................................................................................7 David Struett, Cook County Jail Releases Several Detainees ‘Highly Vulnerable’ to Coronavirus, CHICAGO SUN TIMES (MAR. 17 2020), https://chicago.suntimes.com/ coronavirus/2020/3/17/21183289 /cook-county-jail-coronavirus-vulnerable-detaineesreleased-covid- 19............................................................................................................................7
Letter from Representatives Carolyn B. Maloney & Jamie Raskin to the Acting Sect. of Homeland Security (Mar. 11, 2020), https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-0311.CBM%20and%20JR%20to%20Wolf-DHS%20re%20COVID-19.pdf......................................9 Mike Freeman on Individuals Held in Hennepin County Jail. HENNEPIN CNTY ATTY https://www.hennepinattorney.org/ news/news/2020/March/mike-freeman-statement-hennepincounty-jail (last visited Mar. 23, 2020)……………………………………………………………7 Sharon Begley, Who is Getting Sick, and How Sick? A Breakdown of Coronavirus Risk by Demographic Factors, STAT NEWS (Mar. 3, 2020), https://www.statnews.com/2020/03/03/whois-getting-sick-and-how-sick-a-breakdown-of-coronavirus-risk-by-demographic-factors/............2 Spencer Ackerman, ICE: No Plan to Free Migrants in Jail, but Will Arrest Fewer Due to Pandemic, DAILY BEAST (Mar. 19, 2020), https://www.thedailybeast.com/ice-says-it-has-noplan-to-free-migrants-in-jail-but-will-arrest-fewer-due-to-coronavirus-pandemic.........................7 Stephen Rex Brown, ICE Jail in Bergen County Quarantined, nydailynews.com (Jun. 11, 2019); Doug Criss, 6 Inmates at a New Jersey Jail Came Down With The Mumps, CNN (June 13, 2019), https://www.cnn.com/2019/06/12/us/mumps-jersey-bergen-county-jail-trnd/index.html..............9 U.S. Jails Begin Releasing Prisoners to Stem Covid-19 Infections, BBC NEWS (Mar. 19, 2020), www.bbc.com/news/world-us-canada-51947802............................................................................7
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INTRODUCTION To prevent potentially fatal consequences during a time of unprecedented crisis, the seven plaintiffs—all civil immigration detainees—seek a temporary restraining order for their immediate release pending further proceedings in this case. Each plaintiff suffers from medical conditions that render them particularly vulnerable to severe illness or death if infected by COVID-19—vulnerabilities that are heightened in detention. The risk of infection is imminent: COVID-19 has already spread to at least two of the jails where Immigration and Customs Enforcement (“ICE”) is holding five of the plaintiffs. And detainees at all four jails report unsanitary conditions, visibly sick detainees who remain in the general population, and no dissemination of information about testing for COVID-19. Public health experts agree that in carceral settings, the window of opportunity to mitigate harm from COVID-19 is fast closing. Last week, the Department of Homeland Security’s own medical experts warned of the “serious medical risks” from ICE’s current detention practices and urged the agency to release at-risk individuals to protect the health of detainees and the general public. Despite these extraordinary circumstances, and the confirmed cases at Hudson and Bergen County Jails, ICE has failed to respond to the pleas of these seven vulnerable plaintiffs for release. ICE’s inaction leaves this Court as Plaintiffs’ only recourse. They seek an order directing their immediate release while this case proceeds in order to prevent potentially irreversible injury, in a situation where the “magnitude of risk [] grow[s] exponentially” by the day and even the hour. United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155 at *2 (S.D.N.Y. Mar. 19, 2020). Medical experts agree that for individuals as vulnerable as Plaintiffs, there are simply no conditions of confinement that can adequately manage the serious risk of harm during
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this pandemic. Worse, the jails where ICE is holding them have documented track records of providing substandard medical care even in non-emergency conditions. ICE’s continued detention of Plaintiffs in these circumstances constitutes deliberate indifference to a medical need of the utmost urgency. Moreover, the existing processes available to Plaintiffs are manifestly inadequate given the deprivations of liberty, and potentially life, at stake. They therefore respectfully request that the Court exercise its inherent authority to order their immediate release on appropriate conditions pending further proceedings.
FACTUAL BACKGROUND I. THE PLAINTIFFS ARE CIVIL IMMIGRATION DETAINES WHO FACE A
GRAVE RISK OF SEVERE HARM IF THEY CONTRACT COVID-19. The seven plaintiffs in this case each has one or more underlying medical conditions that renders them particularly vulnerable to severe harm, including respiratory and kidney failure and death, if they contract COVID-19. Declaration of Dr. Ranit Mishori (MD, MHS, FAAFP) (“Mishori Decl.”) ¶ 9, Ex. 1. Analysis of close to 1,600 COVID-19 cases in China found that patients with at least one co-morbidity—including cardiovascular disease, diabetes and chronic kidney diseases—“had a 79% greater chance of requiring intensive care or a respirator or both, or of dying.”1 Plaintiffs fall into these risk groups. Josefina Coronel is a 48-year-old survivor of human trafficking who has been incarcerated by ICE since October 2019. An immigration judge (“IJ”) granted her relief from removal in February 2020, finding that she would face persecution and torture if deported. She suffers from congestive heart failure, hypertension, and diabetes, and in July 2019, she had a
1 Sharon Begley, Who is Getting Sick, and How Sick? A Breakdown of Coronavirus Risk by Demographic Factors, STAT NEWS (Mar. 3, 2020), https://www.statnews.com/2020/03/03/whois-getting-sick-and-how-sick-a-breakdown-of-coronavirus-risk-by-demographic-factors/.
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severe cardiac incident resulting in cardiac catheterization and hospitalization for several days. Over the course of the past ten days, Ms. Coronel has experienced dizziness, numbness in her right arm, abnormally low blood pressure and acute anxiety about how COVID-19 could affect her health. If released, Ms. Coronel will reside and receive services at a home for survivors of human trafficking. Declaration of Katherine Kim ¶ 3, 4, 5, 7, 12. (“Kim Decl.”), Ex. 3.
Ramon Garcia Ponce is a 56-year-old father to four U.S. citizen children who is deeply rooted in his New York City community. In January 2019, Mr. Garcia went to the hospital with a severe headache and was diagnosed with subarachnoid hemorrhage, a type of life-threatening stroke, and immediately operated on. In addition to a history of stroke, he suffers from diabetes and high blood pressure. If released, he will return to his family in the Bronx. Id. ¶¶ 18-19.
On March 17, 2020, Mr. Garcia, through counsel, submitted an urgent motion to calendar a bond hearing within 48 hours in light of his medical concerns. The Immigration Court ignored the emergency request and calendared the hearing for March 30, 2020. Id. ¶ 22.
Jose Madrid is 41 years old and has lived in the United States for over 20 years. He is a beloved member of his large family of U.S. citizens and lawful permanent residents who reside in New York. Mr. Madrid has type 2 diabetes, a condition that has already affected his health, as he is obese and has impaired vision. He was previously being treated at a health center in his community in Peekskill, NY, where a doctor had prescribed him two medications to control his diabetes. While in ICE custody, Mr. Madrid’s health has deteriorated; he is experiencing frequent headaches and ringing in his ears, and his eyesight has worsened. He is also receiving only one prescription for his diabetes. Since the worsening of the public health crisis, Mr. Madrid has been locked in his cell with another detainee for most of the day. If released, he will have the
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support of his family in Westchester County, NY. Declaration of Karla Ostolaza (“Ostolaza Decl.”) ¶¶ 4, 6-7, Ex. 5.
Miguel Miranda is a 44-year-old who has resided in this country for over a decade. His long-term partner has fallen into a major depression since his detention, causing her to stop working and lose her livelihood along with his support since ICE arrested him in February 2020. Mr. Miranda has type 2 diabetes and suffers from gastrointestinal problems. As a result of these conditions, Mr. Miranda must use the bathroom with extreme frequency and rarely is able to sleep at night. Mr. Miranda has recently been suffering from severe diarrhea. He was given pills to allegedly address this, however the jail recently switched his prescription and then abruptly stopped his medication, without explaining why. If released, he will return to living with his partner of multiple years, and support her and his stepchildren through his work as a delivery person for the same restaurant at which he previously worked for years. Ostolaza Decl. ¶¶ 13-19.
Florencio Moristica Ochoa has been detained by ICE since July 2018. In March 2020, an IJ terminated Mr. Moristica’s removal proceedings, and he is detained pending the government’s appeal. Mr. Moristica suffers from a severe neurocognitive disorder that impairs his ability to function and understand his surroundings to such an acute degree that he is unable to articulate his own age or answer basic questions about his personal history or present circumstances. He is frequently unable to understand his own medical condition or need for treatment and will be unable to verbalize his needs or advocate for himself when his health deteriorates, or take the self-protective steps necessary in a facility where he is in close proximity with so many other detainees and lacks a support network. If released, he will live with a cousin who was previously his caretaker. Kim Decl. ¶ 28, 29, 31.
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After he prevailed in his removal case before the IJ, Mr. Moristica moved for a new bond hearing on March 13, 2020. His counsel made several attempts to communicate with the court about calendaring this hearing but received no response. Id. ¶ 33.
Juan Morocho Sumba is a 45-year-old father to two U.S. citizen children who ICE has detained since December 2019. He suffers from aortic valve disease and hypertension, had openheart surgery in 2014, and visited the emergency room just three months ago because of chest pain. The emergency room staff found that he had an abnormal electrocardiogram and an enlarged heart and advised that he see a cardiologist for continuing care. Since that emergency room visit, he has not seen a cardiologist while in ICE custody despite ongoing chest pain on a regular basis. If released, he will live with his sister. See Kim Decl. ¶¶ 23-25.
Jose Otero is 38 years old and has lived in this country since 2003. ICE has detained him since November 2019. Mr. Otero was the victim of a violent assault that forced him to have a nephrectomy (removal of left kidney), partial liver resection, and left lung resection. As a result of partial removal of major organs, his immune system is significantly compromised. He has also been diagnosed with Post Traumatic Stress Disorder, major depressive disorder, and a major neurocognitive disorder. Mr. Otero suffers from constant pain and health issues that require specialized care and have not been adequately treated in custody. If released, he will return to living with his U.S. citizen uncle, with whom he has resided since 2003. Ostolaza Decl. ¶¶ 9-10.
Mr. Otero was scheduled for a hearing in immigration court on March 11, 2020, at which an IJ was supposed to determine whether he is competent to participate in immigration proceedings in light of his mental health diagnoses and neurocognitive disorder. Although Mr. Otero and counsel were present in court, the IJ rescheduled the hearing without going forward as
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she was concerned about COVID-19 infection as a different individual in the court’s waiting room was visibly ill. Id. ¶ 11. II. JAILS PRESENT HEIGHTENED RISK OF TRANSMISION OF COVID-19.
Carceral settings pose “significantly higher” risk for the spread of infectious diseases like COVID-19 than in the general community. Mishori Decl. ¶ 16. Even when public access is curtailed, it is impossible to seal entry and exit for staff and vendors; it is thus simply not possible to isolate people within jails from viruses circulating outside. Id. ¶ 35. “Essential” preventative strategies like social distancing are “an oxymoron” in congregate settings like jails; hand sanitizing and proper ventilation are also largely inaccessible and ineffective. Letter from Dr. Scott A. Allen, Professor, Univ. of Cal. Riverside Sch. of Med. & Dr. Josiah “Jody” Rich, Professor, Brown Univ. to Bennie Thompson, Chairman, House Comm. on Homeland Sec., et. al. 5 (Mar. 19, 2020) (“Allen Letter”) (Exh. 8);2 Mishori Decl. ¶¶ 36, 24.3 As a result, widespread outbreak in jail settings is virtually inevitable. Mishori Decl. ¶¶ 19,31, 32, 36, 41.
Once an outbreak occurs, jails are ill-equipped to engage in adequate containment and medical treatment for sick detainees. Mishori Decl. ¶¶ 19, 42-43. This “creates an enormous public health risk, not only because disease can spread so quickly, but because those who contract COVID-19 with symptoms that require medical intervention will need to be treated at local hospitals, thus increasing the risk of infection to the public at large and overwhelming
2 Both Dr. Allen and Dr. Rich “currently serve as medical subject matter experts for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties.” Allen Letter at 1-2. 3 See also United States v. Martin, No. CR PWG-19-140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“With no known effective treatment, and vaccines months (or more) away, public health officials have been left to urge the public to practice “social distancing,” frequent (and thorough) hand washing, and avoidance of close contact with others (in increasingly more restrictive terms)—all of which are extremely difficult to implement in a detention facility.”).
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treatment facilities.” Allen Letter at 4. In the face of the current pandemic, release of vulnerable
detainees is a critical mitigation tool: “Not doing so is not only inadvisable but also reckless
given the public health realities we now face in the United States.” Mishori Decl. ¶ 45. Only by
releasing detainees from high risk congregate settings can “survival [be] maximized” and the
“local mass outbreak scenario [] averted.” Allen Letter at 4.
Recognizing this reality, jurisdictions around the country, including New York City, have
announced efforts to reduce their detained populations, and many are focusing their release
efforts on individuals classified as high-risk.4 Despite the consensus in the medical community
about the need to release the most vulnerable, and in sharp contrast to the efforts of officials
around the United States to comply with such recommendations, ICE continues to detain the
seven at-risk plaintiffs at issue here. In fact, the agency recently announced that it has no policy
to release individuals in response to COVID-19.5
4 See e.g, U.S. Jails Begin Releasing Prisoners to Stem Covid-19 Infections,, BBC NEWS (Mar. 19, 2020), www.bbc.com/news/world-us-canada-51947802 (describing efforts by New York City, Los Angeles, and Cleveland); David Struett, Cook County Jail Releases Several Detainees ‘Highly Vulnerable’ to Coronavirus, CHICAGO SUN TIMES (MAR. 17 2020), https://chicago.suntimes.com/coronavirus/2020/3/17/21183289 /cookcounty-jail-coronavirus-vulnerable-detainees-released-covid-19 (Cook County Jail in Chicago has released "several" medically vulnerable inmates); Mike Freeman on Individuals Held in Hennepin County Jail. HENNEPIN CNTY ATTY https://www.hennepinattorney.org/ news/news/2020/March/mike-freeman-statement-hennepin-county-jail (last visited Mar. 23, 2020); (County Attorney plans to release inmates from the Hennepin County Jail in Minnesota); Darwin BondGraham, San Francisco Officials Push to Reduce Jail Population to Prevent Coronavirus Outbreak – THE APPEAL (Mar. 11, 2020) https://theappeal.org/coronavirus-sanfrancisco-reduce-jail-population/ (San Francisco District Attorney working and public defenders have worked to release vulnerable individuals from jail). 5See Spencer Ackerman, ICE: No Plan to Free Migrants in Jail, but Will Arrest Fewer Due to Pandemic, Daily Beast (Mar. 19, 2020), https://www.thedailybeast.com/ice-says-it-has-no-planto-free-migrants-in-jail-but-will-arrest-fewer-due-to-coronavirus-pandemic
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III. THE RISKS OF HARM IS ESPECIALLY PRONOUNCED IN THE JAILS WHERE THE PLAINTIFFS ARE DETAINED. The New York-area jails where Plaintiffs are detained—Bergen, Hudson, Essex, and
Orange County Jails—are especially vulnerable to rapid transmission of COVID-19 because of the unsanitary and hazardous conditions within the facilities and their history of providing inadequate medical treatment. See Declaration of Sarah Deri Oshiro ¶¶ 15-20 (“Oshiro Decl.”), Ex. 4 (detailing lack of basic sanitation like access to toilet paper, soap, and hand sanitizer and feces on cell walls at Hudson; lack of basic sanitation at both Orange and Bergen; detainees’ hunger strike at Essex in protest of unsanitary conditions;); Declaration of Marinda Van Dalen ¶¶ 18-45 (“Van Dalen Decl.”), Ex. 2.
Under these conditions, over the last several days the experts’ dire predictions about COVID-19 transmission in jail settings have come to pass. As of March 22, 2020, both Bergen and Hudson County jails have confirmed cases of COVID-19. Oshiro Decl. ¶ 13; Declaration of Bridget Kessler ¶ 4 (“Kessler Decl.”), Ex. 6; March 19, 2020 Press Release from the Bergen County Sheriff’s Office, p. 1 (“Bergen Press Release”), Ex. 7. Based on the presence of visibly sick individuals, a number of detainees have reported concerns that they are being held with people who already have COVID-19, demonstrating the fear and uncertainty detainees face in this time of crisis. Oshiro Decl. ¶¶ 16, 19-20. Dr. Mishori’s prediction that it is a matter of “days, not weeks” for the virus to spread at these facilities, Mishori Decl. ¶ 48, has quickly become fact: Hudson staff has reported that due to the two confirmed cases, the entire facility will be on a full lockdown for 14 days, Kessler Decl. ¶ 4.
Further contributing to the elevated risk of harm is these jails’ track record of failure to provide adequate and prompt medical care even before the pandemic. See Declaration of
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Marinda Van Dalen ¶¶ 18-45; Ailing Justice: New Jersey Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, (Feb. 2018) at 1-2, 6-10, https://www.humanrightsfirst.org/sites/default/files/Ailing-Justice-NJ.pdf. Examples of inadequate care at these specific facilities includes a history of: denial of vital medical treatment such as dialysis and blood transfusions; subjecting detainees in need of surgeries to unconscionable delays; altering establish treatment regimens; failing to provide necessary mental health services; overuse of solitary confinement; and ignoring repeated requests for care from detainees with serious symptoms. Van Dalen Decl. ¶¶ 23-36. These deficiencies in medical treatment have placed individuals at risk of strokes, heart attacks, renal failure, amputation, kidney failure, and blindness. Id. ¶¶ 41-44. Just last year, a mumps outbreak involving multiple cases at Bergen County Jail resulted in the lengthy quarantine of dozens of immigration detainees.6 The Department of Homeland Security’s own Office of the Inspector General reported substandard care, long waits for medical care and hygiene products, and mistreatment in ICE detention facilities. See DHS, Office of Inspector General, DHS OIG Inspection Cites Concerns With Detainee Treatment and Care at ICE Detention Facilities (2017) (“OIG Report”) Ex. 10. Given their failure to provide consistent access to hygiene and adequate health care under normal circumstances, it is unlikely that these jails will be able to respond effectively to the
6 Stephen Rex Brown, ICE Jail in Bergen County Quarantined, nydailynews.com (Jun. 11, 2019); Doug Criss, 6 Inmates at a New Jersey Jail Came Down With The Mumps, CNN (June 13, 2019), https://www.cnn.com/2019/06/12/us/mumps-jersey-bergen-county-jail-trnd/index.html; see also Letter from Representatives Carolyn B. Maloney & Jamie Raskin to the Acting Sect. of Homeland Security (Mar. 11, 2020), https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2020-0311.CBM%20and%20JR%20to%20Wolf-DHS%20re%20COVID-19.pdf
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pandemic.7 These “facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community.” Mishori Decl. ¶ 34. IV. THE GOVERNMENT HAS NOT EXERCISED ITS DISCRETION TO
MITIGATE THE RISK OF HARM TO THE PLAINTIFFS. ICE has undisputed authority to release Plaintiffs whose detention is governed by the discretionary detention statute, 8 U.S.C. § 1226(a). Indeed, counsel for Plaintiffs, The Legal Aid Society (“LAS”) and The Bronx Defenders (“BXD”), often request the release of clients with compelling circumstances. Oshiro Decl. ¶ 11. As news of the pandemic grew more dire, LAS and BXD reached out to the government and identified high-risk clients at the four facilities, including the seven plaintiffs in this case. Id. ¶ 11; Ostolaza Decl. ¶¶ 8, 12 ,18, 19; Kim Decl. ¶¶ 10-15, 21, 26, 34. Through counsel, all Plaintiffs submitted release requests to ICE that described the medical conditions and other vulnerabilities that render them high-risk for adverse health outcomes from COVID-19. Ostolaza Decl. ¶¶ 8, 12, 18-19; Kim Decl. ¶¶ 10, 21, 26, 34. As of today, the government has not responded substantively to these requests or released any of the plaintiffs. Ostoloza Decl. ¶¶ 8, 12, 18; Kim Decl. ¶¶ 16, 21, 26, 34. Plaintiffs also cannot access timely or adequate bond hearings at the Varick Immigration Court given recent events. Under ordinary circumstances, Plaintiffs could have sought either initial or changed-circumstances bond hearings at Varick. However, the immigration court’s docket is presently in considerable disarray and does not offer a forum for meaningful relief. See Oshiro Decl. ¶¶ 21-32 (explaining how routine operations have changed, including the absence
7 “This pandemic is unprecedented in our lifetime. While measures are being taken by facilities all over the world, no facility is prepared.” United States v. Barkman, No. 3:19-cr-52-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628, at *5 (D. Nev. Mar. 17, 2020).
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of the three regular judges and replacement with two judges who do not accept filings electronically; describing the court’s failure to craft policies responsive to the current public health crisis). Several previously-scheduled bond hearings have not gone forward to decision as the lack of an electronic filing system prevented judges from accessing bond submissions. See Oshiro Decl. ¶ 30. Several LAS and BXD staff have also been unsuccessful in their attempts to schedule a prompt bond hearing for their clients. See Oshiro Decl. ¶¶ 31-32 (court did not adjudicate requests to schedule or advance bond hearings, or scheduled them into April); Kim Decl. ¶¶ 22, 33-34 (describing failed attempts to schedule bond hearings for two plaintiffs on expedited basis).
Moreover, even when a bond hearing does take place, an individual must bear the burden of proving “to the satisfaction of the Immigration Judge” why he or she is not a danger to the community or a flight risk, and immigration judges are not required under agency precedent to consider alternative conditions of release. Matter of Guerra, 24 I. & N. Dec. 37 (B.I.A. 2006); Ostolaza Decl. ¶¶ 21-23.8
Further complicating access to a meaningful forum are the challenges in communicating with Plaintiffs and other clients currently detained by ICE. All of the jails have suspended legal contact visits. Neither Bergen nor Essex County jails provide consistent or easy access to free, confidential telephone calls, and the quality of the video teleconference systems at Orange and Hudson County jails is consistently poor. See Ostolaza Decl. ¶ 20; Kim Decl. ¶ 32; Oshiro Decl.
8 Judges routinely draw adverse inferences and deny bond when individuals fail to produce documentary evidence, such as criminal court documents, police reports, proof of employment, hospital and school records, and letters from community organizations, to support their applications for bond. See id ¶¶ 21-23. Making such a showing is nearly impossible under the present circumstances given widespread closures of public and private institutions and the ensuing unavailability of records. Id.
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¶ 12. There is consequently little opportunity for attorney-client communication that would allow for adequate preparation for a bond hearing. Even if the situation improves in the coming weeks, the current risk of severe harm to Plaintiffs is counted in “days,” Mishori Decl. ¶ 12, meaning that any relief from the immigration courts will almost certainly be too late.
ARGUMENT To prevail on the pending motion, Plaintiffs must show “(1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff[s’] favor; and (3) that the public’s interest weighs in favor of granting the injunction.” Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011) (setting forth preliminary injunction standard); Spencer Trask Software & Info. Servs., LLC v. RPost Int'l, Ltd., 190 F. Supp. 2d 577, 580 (S.D.N.Y. 2002) (“The standard for granting a temporary restraining order and a preliminary injunction . . . are identical.”). Plaintiffs meet all four factors. I. THE PLAINTIFFS WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF A TEMPORARY RESTRAINING ORDER. The risk of irreparable harm is “the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999)). The harm alleged must “be imminent, not remote or speculative.” Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990). Here, the plaintiffs are irreparably harmed because they “face imminent risk to their health, safety, and lives.” Henrietta D. v. Giuliani, 119 F.Supp.2d 181, 214 (E.D.N.Y. 2000), aff’d sub nom. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003); see also Baur v. Veneman, 352 F.3d 625, 633 n.7 (2d Cir. 2003) (citing conditions of confinement
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precedent, stating, “the Supreme Court has decided cases in which it appears to assume that enhanced risk may cause real injury”).
With two of the four jails confirming that people are testing positive for COVID-19, the imminent risk to the plaintiffs represents irreparable harm of the gravest magnitude. They remain trapped in close quarters with dozens of other detainees and staff in locations of confirmed or likely COVID-19 transmission; deprived of basic levels of preventive hygiene; and forced to share necessities like toilets, showers, and phones. See Stephens, 2020 WL 1295155, at *2 (describing the “unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic” and recognizing that “inmates may be at heightened risk of contracting COVID-19 should an outbreak develop”). Moreover, the plaintiffs are confined within facilities that have demonstrably failed to provide adequate medical care even outside times of crisis. Finally, DHS’s own medical experts have warned that ICE’s “track record” for implementing “[p]rotocols for early screening, testing, isolation and quarantine . . . has been inconsistent.” Allen Letter at 5. Events in the comparable setting of New York City’s jails indicate that the risk of harm will quickly metastasize: within six days, 21 people in custody and 17 city employees tested positive for COVID-19. See Letter from Jacqueline Sherman, Interim Chair, N.Y.C. Bd. of Corr., to N.Y.C. Criminal Justice Leaders 1-2 (Mar. 21, 2020), Ex. 9.
These extraordinary circumstances pose a particularly severe risk to the seven plaintiffs given their underlying medical conditions. Plaintiffs all have serious co-morbidities, including heart disease, diabetes, hypertension, a brain hemorrhage, severe cognitive impairment, a resected lung, and kidney and liver disease. See supra Facts Section I. If the plaintiffs contract COVID-19, they are more likely to need intensive, hospital-level care, more likely to experience
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severe damage to their organs and neurological and respiratory capacity, and more likely to succumb to the virus after contracting pneumonia and sepsis. See Mishori Decl. ¶¶ 9-12.
Far from being theoretical or remote, these irreversible injuries are imminent, calculated in a matter of “days, not weeks,” Mishori Decl. ¶ 48, if not even sooner than that.9 Once an outbreak is confirmed, even if Plaintiffs themselves do not immediately contract the virus, health authorities may quarantine everyone within a particular jail—a scenario that hundreds of people on cruise ships and in nursing homes have already endured. Indeed, such a quarantine appears to be unfolding at the Hudson County Jail where two of the plaintiffs—Ms. Coronel and Mr. Garcia Ponce—are held. To wait any longer will be to wait too long to effectively mitigate irreparable harm. See Mishori Decl. ¶ 48 (“Once a case of COVID-19 is identified in a facility, it will likely be too late to prevent a widespread outbreak.”); cf. Manrique, 2020 WL 1307109 at *1 (rejecting as “impractical” the government’s suggestion that the court wait until “there is a confirmed outbreak” to release individual, noting that “[b]y then it may be too late.”).10 II. THE PLAINTIFFS ARE SUBSTANTIALLY LIKELY TO PREVAIL ON THEIR
CLAIM THAT THE GOVERNMENT IS DELIBERATELY INDIFFERENT TO THEIR SERIOUS MEDICAL NEEDS. Due Process prohibits detention conditions that “either alone or in combination, pose an unreasonable risk of serious damage to [a detainee’s] health,” including “their future health.”
9 Without any indication of widespread testing, the Court should not credit the government’s assertions that no ICE detainees at the jails has yet contracted the virus. See In re Extradition of Manrique, No. 19-mj-71055-MAG-1 (TSH), 2020 WL 1307109 at *1 (N.D. Cal. Mar. 19, 2020) (“The Court is glad to hear that there are currently no reported cases of COVID-19 at [county jail], but is unsure what that means if people are not being tested.”). 10 Irreparable harm is also presumed in cases alleging deprivation of constitutional rights. See Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984).
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Darnell v. Piniero, 849 F.3d 17, 30 (2d Cir. 2017).11 In a recent case involving immigration detainees at Orange County Jail—one of the four jails where Plaintifs in this action are detained—the Second Circuit found that the defendants had violated Plaintiffs’ constitutional right to adequate medical care based on a two-pronged analysis: “(1) that Plaintiffs had a serious medical need . . . and (2) that the Defendants acted with deliberate indifference to such [a] need[].” Charles v. Orange County, 925 F.3d 73, 86 (2d Cir. 2019). Under Charles, Plaintiffs are substantially likely to prevail on their claim that ICE’s decision to continue to incarcerate them constitutes deliberate indifference to serious medical need.
A. The Plaintiffs in this Case Have Serious, Unmet Medical Needs. “The serious medical needs standard contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain[.]” Charles, 925 F.3d at 86. Courts have found that the risk of contracting a communicable disease constitutes an “unsafe, life-threatening condition.” Helling v. McKinney, 509 U.S. 25, 33 (1993). See also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease”); Narvaez v. City of New York, No. 16-CV1980 (GBD), 2017 WL 1535386, at *9 (S.D.N.Y. Apr. 17, 2017) (denying “motion to dismiss Plaintiff’s claim that the City of New York violated Plaintiff’s rights under the Due Process Clause by repeatedly deciding to continue housing him with inmates with active-TB”). Here, the rapid community and jail-based transmission of COVID-19 in the New York area; the presence of confirmed or suspected cases in the facilities where plaintiffs are detained; and the real probability that the virus will soon spread exponentially within those jails, creates
11 Due process claims brought under the Fifth Amendment against federal defendants are subject to the same standard and analysis as due process claims brought under the Fourteenth Amendment against state and local officials. See Darnell, 849 F.3d at 21.
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the “condition of urgency” required by Charles, 925 F.3d at 86; see also Allen Letter at 5-6. And Plaintiffs, whose underlying medical conditions render them particularly susceptible to severely adverse health outcomes if infected, face “death, degeneration, or extreme pain” if they remain detained. Charles, 925 F.3d at 86.
The imminent spread of COVID-19 in New York-area immigration detention facilities and Plaintiffs’ pre-existing conditions together establish a serious medical need and a constitutional violation. The medical need here is enhanced by a specific constellation of additional factors that contribute to a “mutually enforcing effect.” Wilson v. Seiter, 501 U.S. 294, 304 (1991). As the Second Circuit has explained, “[c]onditions of confinement may be aggregated to rise to the level of a constitutional violation . . . [u]nsanitary conditions, especially when coupled with other mutually enforcing conditions, such as poor ventilation and lack of hygienic items (in particular, toilet paper), can rise to the level of an objective deprivation.” Darnell, 849 F.3d at 30. In this case, mutually enforcing additional factors include the unsanitary and hazardous conditions at these jails (including a lack of soap, hand sanitizer, and toilet paper in recent weeks); the jails’ well-documented history of inadequately addressing medical needs of detainees; and ICE’s track record, according to DHS’ own medical experts, of failing to develop early detection and containment protocols for infectious diseases outbreaks. The existence of these conditions, in the aggregate, further establishes that Plaintiffs are substantially likely to succeed in demonstrating the existence of a serious medical need. 12
12 The situation presented last week, to a district court in Seattle, was distinct in material aspects from the quickly-escalating situation here. Last week, that court declined order the release of immigration detainees from a facility in Tacoma, Washington. See Dawson v. Asher, 2:20-cv409-JLR-MAT, 2020 WL 1304557 (W.D. Wash. Mar. 19, 2020) (slip op.). Unlike in Dawson, the record in this case includes evidence of COVID-19 already circulating within at least two of the jails that house plaintiffs and suspected instances of transmission at other facilities; detainees
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B. Defendants are Acting with Deliberate Indifference Towards the Plaintiffs’ Serious Medical Need. To establish deliberate indifference in cases involving civil immigration detention, plaintiffs must show “either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to [plaintiffs’] health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee’s health.” Charles, 925 F.3d at 87; accord Darnell, 849 F.3d at 35 (explaining that deliberate indifference exists where defendants “recklessly failed to act with reasonable care to mitigate [] risk . . . even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.”). This Court may draw inferences from circumstantial evidence in determining if the government has acted with deliberate indifference. Charles, 925 F.3d at 87.13 Plaintiffs are substantially likely to prevail in showing that the defendants acted with deliberate indifference towards their serious medical needs. First, each of the plaintiffs has notified the government about the particular circumstances of their cases, their high risk of harm, and their need for prompt release. See Facts § IV; cf. Thomas v. Ashcroft, 470 F.3d 491, 493, 496 (2d Cir. 2006) (in Bivens action, finding sufficient allegations that supervisors were on notice of plaintiff’s medical needs given complaints by plaintiff and warnings of medical specialists). Second, not only was ICE aware of the particular circumstances of each of the plaintiffs, it knew, or should have known, about the grave risk that COVID-19 poses in carceral settings to
reporting unsanitary and dangerous conditions; and a documented history of inadequate medical care. Additionally, the court in Dawson did not have the benefit of the dire warnings of two doctors who serve as medical experts for DHS. 13This Court may also consider hearsay evidence in determining whether to grant expedited relief. See Mullins v. City of New York, 626 F.3d 47, 52 (2d Cir. 2010) (“hearsay evidence may be considered by a district court in determining whether to grant a preliminary injunction”).
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medically-vulnerable people like Plaintiffs. As Dr. Mishori explains, there exists a “consistent []
view of the medical profession as a whole that there are no conditions of confinement in carceral
settings that can adequately manage the serious risk of harm for high-risk individuals during the
COVID-19 pandemic.” Mishori Decl. ¶ 46. Indeed, even DHS’s own medical experts shared
[their] concerns about the serious medical risks from specific public health and safety threats
associated with immigration detention” with DHS officials. See Allen Letter at 2-3; cf. Melvin v.
Cty. of Westchester, No. 14-CV-2995, 2019 WL 1227903, at *12 (S.D.N.Y. Mar. 15, 2019)
(finding that jail doctor’s conduct, which was “contrary to accepted medical standards” could
support a finding of deliberate indifference).14
Significantly, to grant relief, this Court need not make any determinations beyond the
specific facts of these particular plaintiffs—it need neither determine the propriety of
immigration detention generally or its impact on medically-vulnerable populations broadly. The
Second Circuit has counseled that deliberate indifference is established with regard to the
particular plaintiff in a case, so that even if a policy is “generally justifiable,” its application to a
particular individual could still “amount[] to deliberate indifference.” Johnson v. Wright, 412
F.3d 398, 404 (2d Cir. 2005) (“The operative question in this case is not whether the Guideline’s
14 Given the consensus amongst medical experts that release is the only remedy capable of abating harm to the most medically vulnerable, Defendants cannot justify their position by arguing that the steps ICE or the jails have taken are reasonable—particularly where detainees continue to complain of unsanitary and dangerous conditions, where these specific jails have a history of providing substandard care, and where DHS’ own medical experts warn of deficiencies in ICE’s early detention and containment protocols. Nor can the government defend its position by pointing to other jurisdictions that have not released medically vulnerable detainees—both because there are several examples of jurisdictions that have taken the opposite approach, see supra at n. 4, and because the Second Circuit has “repeatedly rejected the argument that institutional practices must be defective in the maximum degree before a violation of constitutional rights can be found and corrected,” Todaro v. Ward, 565 F.2d 48, 53 (2d Cir. 1997); id. (refusing to “condone” an argument that “would encourage a levelling of prison health standards to the ‘lowest common denominator’”).
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substance abuse policy is generally justifiable, but whether a jury could find that the application of the policy in plaintiff’s case could have amounted to deliberate indifference to plaintiff’s medical needs.”); see also Roe ex rel. Roe v. Elyea, 631 F.3d 843, 860 (7th Cir. 2011) (explaining that even if protocols are generally acceptable, “[w]ith respect to an individual case . . . prison officials still must make a determination that application of the protocols result in adequate medical care”). Here, without deciding whether ICE’s detention policies and practices are “generally justifiable” during this unprecedented crisis, the Court can and should find that ICE has acted with deliberate indifference given Plaintiffs’ particular facts. III. PLAINTIFFS ARE SUBSTANTIALLY LIKELY TO PREVAIL ON THEIR
CLAIM THAT CONTINUED DETENTION WITOUT ADEQUATE PROCEDURAL PROTECTIONS VIOLATES DUE PROCESS. Even if the Court finds that the current detention of Plaintiffs does not constitute deliberate indifference to a serious medical need, they are still entitled to relief in the form of additional procedural safeguards. They are substantially likely to prevail on their claim that existing procedures for testing the validity of their continued detention are insufficient to protect their weighty life and liberty interests from erroneous deprivation. Defendants can cite to little authority to the contrary given the “overwhelming consensus” amongst district courts in this Circuit that the existing custody review process for immigration detainees like Plaintiffs is constitutionally deficient. Medley v. Decker, 18-cv-7361 (AJN), 2019 WL 7374408, at *3-4 (S.D.N.Y. Dec. 11, 2019). The growing public health crisis that endangers plaintiffs’ very survival urgently requires constitutionally-sufficient procedures that account for Plaintiffs’ specific vulnerabilities. See Stephens, 2020 WL 1295155, at *2 (in the context of a pretrial bail determination, noting that “comprehensive view of the danger the Defendant poses to the
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community requires considering all factors—including [substantial medical and security
challenges that would arise from COVID-19 outbreak at MCC]”).
Because of their limited criminal histories, Plaintiffs are statutorily entitled to bond
hearings in Immigration Court. See 8 U.S.C. § 1226(a). However, the existing procedures for
these hearings—as mandated by Board of Immigration Appeals precedent—require detainees to
bear the burden of proving they are not a danger or flight risk, and immigration judges need not
consider alternatives to detention or ability to pay in making release determinations. See Matter
of Guerra, 24 I. & N. Dec. 37, 38-40 (B.I.A. 2006). Courts have almost uniformly found these
procedures to violate procedural due process, ordered the government to bear the burden of
proof, by clear and convincing evidence, to justify continued detention, and required adjudicators
to consider whether alternatives to detention could sufficiently account for the government’s
interest in preventing flight and danger to the community. See, e.g., Fernandez Aguirre v. Barr,
19-CV-7048 (VEC), 2019 WL 3889800, at *2-3 (S.D.N.Y. Aug. 19, 2019).15 Nonetheless, the
agency continues to enforce these unconstitutional procedures. See Matter of R-A-V-P-, 27 I. &
15 The number of courts who have found the same continues to grow; some are listed here. See, e.g., Guerrero v. Decker, No. 19 Civ. 11644 (KPF), 2020 WL 1244124, at *1 (S.D.N.Y. Mar. 16, 2020); Brevil v. Jones, No. 17 CV 1529-LTS-GWG, 2018 WL 5993731, at *2-4 (S.D.N.Y. Nov. 14, 2018); Velasco Lopez v. Decker, No. 19-cv-2912 (ALC), 2019 WL 2655806, at *3 (S.D.N.Y. May 15, 2019); Joseph v. Decker, No. 18-CV-2640 (RA), 2018 WL 6075067, at *10-12 (S.D.N.Y. Nov. 21, 2018); Rajesh v. Barr, No. 6:19-cv-06415-MAT, 2019 WL 5566236, at *7 (W.D.N.Y. Oct. 29, 2019); Navarijo-Orantes v. Barr, No. 19-CV-790, 2019 WL 5784939, at *78 (W.D.N.Y. Nov. 6, 2019); Order, Liranzo de la Cruz v. Barr, No. 19-CV-7375 (AKH) (S.D.N.Y. Sept. 13, 2019) ECF No. 10; Adejola v. Barr, 408 F. Supp. 3d 284, 287 (W.D.N.Y. 2019);; Blandon v. Barr, No. 6:18-CV-06941 EAW, 2019 WL 7759228, at *4-5 (W.D.N.Y. Oct. 28, 2019); Fallatah v. Barr, No. 19-CV-1032, 2020 WL 428060, at *6 (W.D.N.Y. Jan. 28, 2020); Pensamiento v. McDonald, 315 F. Supp. 3d 684, 692 (D. Mass. 2018); Diaz-Ceja v. McAleenan, No. 19-CV-824-NYW, 2019 WL 2774211, at *10-12 (D. Colo. July 2, 2019); Hernandez-Lara v. Immigration & Customs Enf’t Acting Dir., No. 19-cv-394-LM, 2019 WL 3340697, at *6-7 (D.N.H. July 25, 2019).
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N. Dec. 803, 804 (B.I.A. 2020) (reaffirming burden allocation on the individual in a precedential decision).
In light of this overwhelming consensus that the existing custody review procedures are unconstitutional, Plaintiffs have demonstrated a substantial likelihood of success on their procedural due process claim. Indeed, their particular situation warrants greater procedural protections as a number of courts have already recognized, in related contexts. Those judges have held that necessary components of any custody determination during the COVID-19 pandemic are timeliness and consideration of how detention will impact an individual during the crisis. See Stephens, 2020 WL 1295155 at *2-3 (granting emergency motion for reconsideration of bail conditions in light of COVID-19 pandemic); United States v. Raihan, No. 20-cr-68-BMCJO, E.C.F. No. 20, Proc. At 10:12-19 (E.D.N.Y. Mar. 12, 2020) E.C.F. No. 20 (continuing defendant on pretrial release rather than remanding him in part due to recognition that “[t]he more people we crowd into that facility, the more we’re increasing the risk to the community”); Manrique, 2020 WL 1307109 at *1 (agreeing that where detainee was 74 years old and at risk of serious illness or death in custody, the “risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail”); United States v. Barkman, No. 3:19cr-52-RCJ-WGC, 2020 U.S. Dist. LEXIS 45628, at *10 (D. Nev. Mar. 17, 2020) (suspending requirement for defendant to enter detention facility as probation condition “to satisfy the interests of everyone during this rapidly encroaching pandemic”).
Due process “is not a technical conception with a fixed content unrelated to time, place and circumstances, . . . but is flexible and calls for such procedural protections as the particular situation demands.” Martinez v. McAleenan, 385 F. Supp. 3d 349, 363 (S.D.N.Y. 2019) (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). Here, in the context of an unprecedented public
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health emergency, plaintiffs are substantially likely to succeed on their claim that the Constitution demands heightened procedural protections including promptly-held bond hearings that account for the grave and specific risks they face in detention, and justification by ICE for why no lesser form of custody or conditional release will suffice. IV. THE REMAINING FACTORS WEIGH HEAVILY IN FAVOR OF A
TEMPORARY RESTRAINING ORDER. The balance of the equities and the public interest also weigh in Plaintiffs’ favor. The “public interest is best served by ensuring the constitutional rights of persons within the United States are upheld.” Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *13 (S.D.N.Y. May 23, 2018) (internal citation omitted). Moreover, plainly here, the public and Plaintiffs’ interest overlap: both benefit from ensuring community and individual health and safety. See, Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”); Barkman, 2020 U.S. Dist. LEXIS 45628, at *4 (identifying risk of individuals carrying the virus into jails and noting that “[t]he men and women incarcerated at Washoe County Detention Facility are a part of our community and all reasonable measures must be taken to protect their health and safety.”). The general public benefits from release of the most medically vulnerable detainees, which reduces the overall burden for hospitals serving surrounding communities. See Mishori Decl. ¶¶ 26, 45 (describing strain on surrounding hospitals from jail outbreak). “[W]here detainees are released from high risk congregate setting, the tinderbox scenario of a large cohort of people getting sick all at once is less likely to occur, and the peak volume of patients hitting the community hospital would level out.” Allen Letter at 4. Whatever minimal interest Defendants may assert in
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Plaintiffs’ continued detention, it is outweighed by the harm they, other detainees, jail staff, and the public at large face if they remain detained in violation of their due process rights. V. THE COURT SHOULD ORDER THE PLAINTIFFS’ IMMEDIATE RELEASE
ON REASONABLE CONDITIONS, THE SOLE EFFECTIVE REMEDY HERE. Based on the record before the Court, the sole effective remedy is Plaintiffs’ immediate release on reasonable conditions pending further proceedings in this case. While ordering release might be an extraordinary remedy, these are plainly extraordinary times, and anything less fails to adequately address Plaintiffs’ imminent risk of irreparable harm. And there is ample support for the Court’s authority to order release, particularly as an interim measure while the parties fully litigate this case, under two related equitable doctrines. First, the Second Circuit has held that where a case presents “extraordinary circumstances . . . that make the grant of bail necessary to make the habeas remedy effective,” federal courts have the inherent authority to release individuals from immigration detention pending final disposition of their claims. Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); see also Elkmiya v. DHS, 484 F.3d 151, 153-54 (2d Cir. 2007) (affirming court’s “authority to admit [detained aliens] to bail”). This case meets all three criteria for interim release set forth in Mapp and Elkmiya. First, as detailed above, see supra Sections II & III, Plaintiffs have raised “substantial claims” on which they are likely to prevail. Mapp, 241 F.3d at 230. Second, Plaintiffs’ severe medical harms and the imminent threat of death if they remain detained constitute “extraordinary circumstances.” Id.; see e.g., Nadarajah v. Gonzales, 443 F.3d 1069, 1084 (9th Cir. 2006) (ordering immediate release of immigration detainee and explaining that “[t]here is undisputed evidence in the record that his health is deteriorating, a deterioration that is only exacerbated by continued detention”); S.N.C. v. Sessions, No. 18 CIV. 7860 (LGS), 2018 WL 6175902 at *6
23

Case 1:20-cv-02472-UA Document 17 Filed 03/23/20 Page 30 of 32
(S.D.N.Y. Nov. 26, 2018) (ordering release under Mapp given the deterioration of petitioner’s mental health in custody); Kiaddi v. Sessions, 18-cv-1584 (AT), Order at 2-3 (ECF No. 9) (S.D.N.Y. Mar. 2, 2018) (granting release under Mapp as “[t]he fact of Petitioner’s deteriorating health, therefore, supports her release”); D’Alessandro v. Mukasey, No. 08 Civ. 914, 2009 WL 79957 at *3 (W.D.N.Y. Mar. 25, 2009) (finding extraordinary circumstances where petitioner had “serious, potentially debilitating health problems”). Finally, immediate relief is necessary to make the ultimate remedy in this case effective because if Plaintiffs are not promptly released,
they may well lose the ability to access any recourse at all through irreversible illness and even possibly death. See Mapp, 241 F.3d at 230.16
The second doctrine that supports Plaintiffs’ release arises out of litigation around unconstitutional conditions of confinement at prisons and jails. Both the Supreme Court and the Second Circuit have ordered the release of detainees when necessary to cure the underlying constitutional violation. See Brown v. Plata, 563 U.S. 493, 511 (2011) (finding that court’s broad equitable powers can extend to “orders placing limits on a prison’s population” when such an order is “necessary to ensure compliance with a constitutional mandate”); Rhem v. Malcolm, 507 F.2d 333, 341 n.20 (2d Cir. 1974) (“This Court . . . can and must require the release of persons held under conditions which violate their constitutional rights, at least where the correction of
16 To mitigate the risk of harm that flows from Plaintiffs’ conditions of confinement, medical experts agree that immediate release before the virus spreads further is the only effective remedy. As for Plaintiffs’ claim regarding procedural protections, the record demonstrates that the Varick Immigration Court is not a functional venue for prompt or reliable bond hearings at the moment given the inability of detainees to communicate with counsel, the inability of the court to effectively and consistently accommodate remote access by attorneys, and the inability of detainees and their attorneys to collect evidence given myriad constraints imposed by the pandemic. See Oshiro Decl. ¶¶ 21-32; Ostolaza Decl. ¶¶ 21-23. Thus, release is required as an interim remedy on all claims because Plaintiffs are at such imminent risk and the effectiveness of a procedural remedy could be vitiated by plaintiffs’ infection by COVID-19.
24

Case 1:20-cv-02472-UA Document 17 Filed 03/23/20 Page 31 of 32
such conditions is not brought within a reasonable period of time.”); Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392, 399 (2d Cir. 1975) (same). In these cases, the Courts afforded defendants a “reasonable period of time” to remedy unconstitutional conditions of confinement before issuing release orders. But given the extraordinary and unprecedented circumstances of the COVID-19 pandemic, whose epicenter is now the New York region, and ICE’s failure to act on plaintiffs’ requests for release, there is simply no “reasonable time” left nor any safe way to remedy the detention conditions that are inherently lifethreatening.17
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court issue a temporary restraining order.
17 Plaintiffs understand that in ordering immediate release, the Court may do so subject to certain reasonable conditions.
25

Case 1:20-cv-02472-UA Document 17 Filed 03/23/20 Page 32 of 32

Dated: March 23, 2020 New York, NY
Suchita Mathur Zoe Levine THE BRONX DEFENDERS 360 East 161st Street Bronx, New York, 10451 Tel. (347) 842-1295 suchitam@bronxdefenders.org

Respectfully submitted,
Janet E. Sabel, Attorney-in-Chief Adriene Holder, Attorney-in-Charge, Civil Hasan Shafiqullah, Attorney-in-Charge,
Immigration Law Unit Lilia Toson, Supervising Attorney,
Civil Law Reform Unit Julie Dona, Supervising Attorney,
Immigration Law Unit Aadhithi Padmanabhan, Of Counsel THE LEGAL AID SOCIETY 199 Water Street, 3rd Floor New York, NY, 10038 Tel. (212) 298-3144 apadmanabhan@legal-aid.org

By: /s/ Suchita Mathur
Suchita Mathur Counsel for Plaintiffs
Cell: (240) 461-9448

By: /s/ Aadhithi Padmanabhan
Aadhithi Padmanabhan Counsel for Plaintiffs
(646) 574-2761

26

 
 HABEAS,ECF,REFERRED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:20−cv−02472−AJN

Coronel et al v. Decker et al Assigned to: Judge Alison J. Nathan Cause: 28:2241in Habeas Corpus: INS Petitioner Juan Morocho Sumba
Petitioner Josefina Coronel

Date Filed: 03/20/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainee Jurisdiction: U.S. Government Defendant
represented by Julie Ann Dona The Legal Aid Society Immigration Law Unit 199 Water St., 3rd Floor New York, NY 10038 212−577−3629 Fax: 646−219−4987 Email: jdona@legal−aid.org ATTORNEY TO BE NOTICED
Lilia Isobel Toson 199 Water Street 3rd Floor New York, NY 10038 212−577−7987 Email: LToson@legal−aid.org ATTORNEY TO BE NOTICED
Suchita Deolalikar Mathur The Bronx Defenders 360 E 161st St Bronx, NY 10011 (347)−842−1295 Fax: (347)−842−1295 Email: suchitam@bronxdefenders.org ATTORNEY TO BE NOTICED
Zoe Pokempner Levine Bronx Defenders 360 East 161st Bronx, NY 10451 718−838−7808 Fax: 718−665−0100 Email: zoel@bronxdefenders.org ATTORNEY TO BE NOTICED
Aadhithi Padmanabhan Legal Aid Society 199 Water Street, 3rd Floor New York, NY 10038 212−298−3144 Fax: 646−365−2717 Email: apadmanabhan@legal−aid.org ATTORNEY TO BE NOTICED
represented by Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Lilia Isobel Toson

Petitioner Ramon Garcia Ponce
Petitioner Florencio Moristica
Petitioner Jose Madrid

(See above for address) ATTORNEY TO BE NOTICED
Suchita Deolalikar Mathur (See above for address) ATTORNEY TO BE NOTICED
Zoe Pokempner Levine (See above for address) ATTORNEY TO BE NOTICED
Aadhithi Padmanabhan (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Lilia Isobel Toson (See above for address) ATTORNEY TO BE NOTICED
Suchita Deolalikar Mathur (See above for address) ATTORNEY TO BE NOTICED
Zoe Pokempner Levine (See above for address) ATTORNEY TO BE NOTICED
Aadhithi Padmanabhan (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Lilia Isobel Toson (See above for address) ATTORNEY TO BE NOTICED
Suchita Deolalikar Mathur (See above for address) ATTORNEY TO BE NOTICED
Zoe Pokempner Levine (See above for address) ATTORNEY TO BE NOTICED
Aadhithi Padmanabhan (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Lilia Isobel Toson

Petitioner Jose Otero
Petitioner Miguel Miranda
Petitioner Ananda Rajapaksha Petitioner

(See above for address) ATTORNEY TO BE NOTICED
Suchita Deolalikar Mathur (See above for address) ATTORNEY TO BE NOTICED
Zoe Pokempner Levine (See above for address) ATTORNEY TO BE NOTICED
Aadhithi Padmanabhan (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Lilia Isobel Toson (See above for address) ATTORNEY TO BE NOTICED
Suchita Deolalikar Mathur (See above for address) ATTORNEY TO BE NOTICED
Zoe Pokempner Levine (See above for address) ATTORNEY TO BE NOTICED
Aadhithi Padmanabhan (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Ann Dona (See above for address) ATTORNEY TO BE NOTICED
Lilia Isobel Toson (See above for address) ATTORNEY TO BE NOTICED
Suchita Deolalikar Mathur (See above for address) ATTORNEY TO BE NOTICED
Zoe Pokempner Levine (See above for address) ATTORNEY TO BE NOTICED
Aadhithi Padmanabhan (See above for address) ATTORNEY TO BE NOTICED
represented by Suchita Deolalikar Mathur (See above for address) ATTORNEY TO BE NOTICED

Fedor Bondarenko
Petitioner Cristian Arriaga Reyes
Petitioner Alvaro Negrette Mejia
V. Respondent Director Thomas Decker in his official capacity as Field Office Director, New York City Field Office, U.S. Immigration & Customs Enforcement
Respondent Acting Secretary Chad Wolf in his official capacity as Acting Secretary, U.S. Department of Homeland Security
Respondent Attorney General William P. Barr in his official capacity as Attorney General, U.S. Department of Justice
Respondent Director Ronald P. Edwards in his official capacity as Director, Hudson County Jail

represented by Suchita Deolalikar Mathur (See above for address) ATTORNEY TO BE NOTICED
represented by Suchita Deolalikar Mathur (See above for address) ATTORNEY TO BE NOTICED
represented by Suchita Deolalikar Mathur (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James Byars U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 212−637−2793 Fax: 212−637−2786 Email: michael.byars@usdoj.gov ATTORNEY TO BE NOTICED
Steven John Kochevar United States Attorney's Office SDNY 86 Chambers St. New York, NY 10007 212−637−2715 Fax: 212−637−2717 Email: steven.kochevar@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michael James Byars (See above for address) ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James Byars (See above for address) ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James Byars (See above for address) ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address)

Respondent Warden Steven Ahrendt in his official capacity as Warden, Bergen County Jail
Respondent Warden William Anderson in his official capacity as Warden, Essex County Jail
Respondent Sheriff Carl E. Dubois in his official capacity as Sheriff, Orange County

ATTORNEY TO BE NOTICED
represented by Michael James Byars (See above for address) ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James Byars (See above for address) ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) ATTORNEY TO BE NOTICED
represented by Michael James Byars (See above for address) ATTORNEY TO BE NOTICED
Steven John Kochevar (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/20/2020
03/20/2020 03/20/2020
03/20/2020 03/20/2020 03/20/2020 03/21/2020

# Docket Text
1 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2241. (Filing Fee $ 5.00, Receipt Number ANYSDC−19183164)Document filed by Jose Otero, Ramon Garcia Ponce, Miguel Miranda, Josefina Coronel, Florencio Moristica, Juan Morocho Sumba, Jose Madrid. (Attachments: # 1 Affidavit Declaration of Ranit Mishori, # 2 Affidavit Declaration of Marinda Van Dale).(Padmanabhan, Aadhithi) (Entered: 03/20/2020)
2 CIVIL COVER SHEET filed..(Padmanabhan, Aadhithi) (Entered: 03/20/2020)
3 STATEMENT OF RELATEDNESS re: that this action be filed as related to 20−cv−1803. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) (Entered: 03/20/2020)
4 NOTICE OF APPEARANCE by Lilia Isobel Toson on behalf of Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Toson, Lilia) (Entered: 03/20/2020)
5 NOTICE OF APPEARANCE by Julie Ann Dona on behalf of Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Dona, Julie) (Entered: 03/20/2020)
6 NOTICE OF APPEARANCE by Suchita Deolalikar Mathur on behalf of Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Mathur, Suchita) (Entered: 03/20/2020)
7 FILING ERROR − DEFICIENT SUMMONS REQUEST PDF ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to Steven Ahrendt, re: 1 Petition for Writ of Habeas Corpus,. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) Modified on 3/23/2020 (pne). (Entered: 03/21/2020)

03/21/2020 03/21/2020 03/21/2020 03/21/2020 03/21/2020 03/21/2020 03/23/2020 03/23/2020 03/23/2020 03/23/2020
03/23/2020
03/23/2020

8 FILING ERROR − DEFICIENT SUMMONS REQUEST PDF ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to William Anderson, re: 1 Petition for Writ of Habeas Corpus,. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) Modified on 3/23/2020 (pne). (Entered: 03/21/2020)
9 FILING ERROR − DEFICIENT SUMMONS REQUEST PDF ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to William Barr, re: 1 Petition for Writ of Habeas Corpus,. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) Modified on 3/23/2020 (pne). (Entered: 03/21/2020)
10 FILING ERROR − DEFICIENT SUMMONS REQUEST PDF ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to Thomas Decker, re: 1 Petition for Writ of Habeas Corpus,. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) Modified on 3/23/2020 (pne). (Entered: 03/21/2020)
11 FILING ERROR − DEFICIENT SUMMONS REQUEST PDF ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to Carl Dubois, re: 1 Petition for Writ of Habeas Corpus,. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) Modified on 3/23/2020 (pne). (Entered: 03/21/2020)
12 FILING ERROR − DEFICIENT SUMMONS REQUEST PDF ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to Ronald P. Edwards, re: 1 Petition for Writ of Habeas Corpus,. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) Modified on 3/23/2020 (pne). (Entered: 03/21/2020)
13 FILING ERROR − DEFICIENT SUMMONS REQUEST PDF ERROR − REQUEST FOR ISSUANCE OF SUMMONS as to Chad Wolf, re: 1 Petition for Writ of Habeas Corpus,. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) Modified on 3/23/2020 (pne). (Entered: 03/21/2020)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Unassigned. .(pne) (Entered: 03/23/2020)
Case Designated ECF. (pne) (Entered: 03/23/2020)
CASE REFERRED TO Judge Alvin K. Hellerstein as possibly related to 20CV1803. (pne) (Entered: 03/23/2020)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Aadhithi Padmanabhan. The party information for the following party/parties has been modified: Jose Otero, Ramon Garcia Ponce, Miguel Miranda, Josefina Coronel, Florencio Moristica, Juan Morocho Sumba, Jose Madrid, Thomas Decker, Chad Wolf, William P. Barr, Ronald P. Edwards, Steven Ahrendt, William Anderson, Carl E. Dubois. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error; party role was entered incorrectly; party text was omitted. (pne) (Entered: 03/23/2020)
***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Aadhithi Padmanabhan. The following case opening statistical information was erroneously selected/entered: County code Albany. The following correction(s) have been made to your case entry: the County code has been modified to Orange. (pne) (Entered: 03/23/2020)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Aadhithi Padmanabhan to RE−FILE Document No. 10 Request for Issuance of Summons, 13 Request for Issuance of Summons, 9 Request for Issuance of Summons, 8 Request for Issuance of Summons, 12 Request for Issuance of Summons, 7 Request for Issuance of Summons, 11 Request for Issuance of Summons,. The filing is deficient for the following reason(s): caption error; do not use abbreviations in

03/23/2020 03/23/2020 03/23/2020 03/23/2020
03/24/2020 03/24/2020 03/25/2020
03/25/2020
03/25/2020 03/25/2020

case caption; if all party names do not fit in the space provided, enter the name of the first listed defendant followed by 'et al'; the name of the party for whom the summons is being requested must appear in the 'To' field of the PDF and on the docket entry text exactly as it does on pleading caption; middle initial of William Barr and Carl Dubois were omitted. Re−file the document using the event type Request for Issuance of Summons found under the event list Service of Process − select the correct filer/filers − and attach the corrected summons form PDF. (pne) (Entered: 03/23/2020)
14 OBJECTION TO STATEMENT OF RELATEDNESS re: 3 Statement of Relatedness . Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Byars, Michael) (Entered: 03/23/2020)
15 NOTICE OF APPEARANCE by Michael James Byars on behalf of Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Byars, Michael) (Entered: 03/23/2020)
16 MOTION for Temporary Restraining Order for Plaintiffs' Immediate Release. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero. (Attachments: # 1 Text of Proposed Order).(Padmanabhan, Aadhithi) (Entered: 03/23/2020)
17 MEMORANDUM OF LAW in Support re: 16 MOTION for Temporary Restraining Order for Plaintiffs' Immediate Release. . Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero. (Attachments: # 1 Affidavit of Dr Ranit Mishori, # 2 Affidavit of Marinda Van Dalen, # 3 Affidavit of Katherine Kim, # 4 Affidavit of Sarah Deri Oshiri, # 5 Affidavit of Karla Ostolaza, # 6 Affidavit of Bridget Kessler, # 7 Exhibit Bergen County Jail Press Release, # 8 Exhibit Letter from Dr Allen and Dr Rich, # 9 Exhibit Letter from NYC BOC, # 10 Exhibit DHS OIG Report).(Padmanabhan, Aadhithi) (Entered: 03/23/2020)
18 LETTER addressed to Judge Alvin K. Hellerstein from Aadhithi Padmanabhan dated March 24, 2020 re: Reply to Government's Opposition to Statement of Relatedness. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) (Entered: 03/24/2020)
19 NOTICE OF APPEARANCE by Steven John Kochevar on behalf of Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 03/24/2020)
20 PROPOSED ORDER TO SHOW CAUSE WITHOUT EMERGENCY RELIEF. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero. (Attachments: # 1 Application for Order to Show Cause in Support of Motion for Temporary Restraining Order).(Mathur, Suchita) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 03/25/2020)
Magistrate Judge Debra C. Freeman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: https://nysd.uscourts.gov/sites/default/files/2018−06/AO−3.pdf. (ad) (Entered: 03/25/2020)
NOTICE OF CASE REASSIGNMENT to Judge Alison J. Nathan. Judge Unassigned is no longer assigned to the case. (ad) (Entered: 03/25/2020)
21 ORDER re: 20 Proposed Order to Show Cause Without Emergency Relief: A hearing on Petitioners−Plaintiffs' application for an order to show cause on their motion for a temporary restraining order is hereby scheduled for March 26, 2020 at 11:30 a.m. The hearing will be held by telephone. At 11:30 a.m., the parties shall call into the Court's dedicated conference line at (888) 363−4749, and enter Access Code 919−6964, followed by the pound (#) key. By 8 a.m. on March 26, 2020, the Government shall file a written response to Petitioners−Plaintiffs' motion for a temporary restraining

03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/26/2020 03/27/2020
03/27/2020 03/27/2020 03/30/2020
03/30/2020

order. (Telephone Conference set for 3/26/2020 at 11:30 AM before Judge Alison J. Nathan. Responses due by 3/26/2020) (Signed by Judge Alison J. Nathan on 3/25/2020) (jwh) (Entered: 03/25/2020)
22 MEMORANDUM OF LAW in Opposition re: 16 MOTION for Temporary Restraining Order for Plaintiffs' Immediate Release. . Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 03/26/2020)
23 NOTICE OF APPEARANCE by Zoe Pokempner Levine on behalf of Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Levine, Zoe) (Entered: 03/26/2020)
24 LETTER addressed to Judge Alison J. Nathan from AUSA Steven J. Kochevar dated March 26, 2020 re: Additional Criminal History Information. Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 03/26/2020)
25 LETTER addressed to Judge Alison J. Nathan from Aadhithi Padmanabhan dated March 26, 2020 re: Notice of Decision in Basank v Decker. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) (Entered: 03/26/2020)
Minute Entry for proceedings held before Judge Alison J. Nathan: Hearing held on Petitioners−Plaintiffs' request for an order to show cause on their motion for a temporary restraining order. The motion was submitted. See transcript for complete details. (Court Reporter Martha Martin) (aog) Modified on 4/27/2020 (Landers, Rigoberto). (Entered: 04/24/2020)
26 OPINION & ORDER re: 16 MOTION for Temporary Restraining Order for Plaintiffs' Immediate Release filed by Juan Morocho Sumba, Josefina Coronel, Florencio Moristica, Jose Otero, Jose Madrid, Ramon Garcia Ponce, Miguel Miranda. For the foregoing reasons, the Court GRANTS Petitioners' motion for a temporary restraining order. The Court therefore orders Respondents to immediately RELEASE Petitioners on reasonable conditions. The parties are hereby ordered to meet and confer and propose reasonable bond conditions no later than 12 PM on March 27, 2020. This resolves Dkt. No. 16. (Signed by Judge Alison J. Nathan on 3/27/2020) (mro) Modified on 3/30/2020 (mro). (Entered: 03/27/2020)
27 JOINT LETTER addressed to Judge Alison J. Nathan from Aadhithi Padmanabhan dated March 27, 2020 re: Parties' Respective Positions on Petitioners' Conditions of Release. Document filed by Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Padmanabhan, Aadhithi) (Entered: 03/27/2020)
28 MEMO ENDORSEMENT on re: 27 Letter, filed by Juan Morocho Sumba, Josefina Coronel, Florencio Moristica, Jose Otero, Jose Madrid, Ramon Garcia Ponce, Miguel Miranda. ENDORSEMENT: Mr. Otero and Mr. Miranda shall be released on the parties' agreed−upon conditions. Mr. Morocho Sumba and Mr. Madrid shall be released on the parties' agreed upon conditions as well as electronic monitoring, so long as electronic monitoring does not delay release by 5 p.m. (Signed by Judge Alison J. Nathan on 3/27/2020) (mro) (Entered: 03/27/2020)
29 pdf document STRICKEN as per Judge's Order dated 4/1/2020, Doc. #35 FIRST AMENDED PETITION amending 1 Petition for Writ of Habeas Corpus, against Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf.Document filed by Miguel Miranda, Josefina Coronel, Juan Morocho Sumba, Jose Otero, Ramon Garcia Ponce, Florencio Moristica, Jose Madrid, Ananda Rajapaksha, Fedor Bondarenko, Cristian Arriaga Reyes, Alvaro Negrette Mejia. Related document: 1 Petition for Writ of Habeas Corpus,. (Attachments: # 1 Exhibit Mishori Decl., # 2 Exhibit Van Dalen Decl.).(Mathur, Suchita) Modified on 4/1/2020 (rjm). (Entered: 03/30/2020)
30 JOINT LETTER addressed to Judge Alison J. Nathan from AUSA Steven J. Kochevar dated March 30, 2020 re: Severance. Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad

03/30/2020 03/31/2020
03/31/2020 03/31/2020 03/31/2020 03/31/2020 04/01/2020
04/07/2020 04/07/2020

Wolf..(Kochevar, Steven) (Entered: 03/30/2020)
***STRICKEN DOCUMENT. Deleted document (pdf only) number 29 from the case record. The document was stricken from this case pursuant to 35 Order Striking Document from Record. (rjm) (Entered: 04/01/2020)
31 MEMO ENDORSEMENT on re: 30 JOINT LETTER addressed to Judge Alison J. Nathan from AUSA Steven J. Kochevar dated March 30, 2020 re: Severance. Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf. ENDORSEMENT: As the Court indicated in its prior Opinion and Order, see Dkt. No. 26, severance may well be appropriate. That possibility, coupled with the appearance of judge shopping with the addition of these new Petitioners, requires the Court to resolve the issues of amendment and severance first. The Court will adopt the Government's proposed briefing schedule and resolve that issue in due course. But if counsel for Petitioners deem consideration of a temporary restraining order for the new Petitioners a matter of urgency, they should consider stipulating to severance of the new Petitioners and filing separately for random assignment so that the request for a temporary restraining order can be addressed in short order. SO ORDERED. (Signed by Judge Alison J. Nathan on 3/30/2020) (rjm) (Entered: 03/31/2020)
32 MEMORANDUM OF LAW in Opposition to Severance and in Support of Amending the Pleadings. Document filed by Cristian Arriaga Reyes, Fedor Bondarenko, Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Alvaro Negrette Mejia, Jose Otero, Ananda Rajapaksha..(Mathur, Suchita) (Entered: 03/31/2020)
33 PROPOSED ORDER TO SHOW CAUSE WITHOUT EMERGENCY RELIEF. Document filed by Cristian Arriaga Reyes, Fedor Bondarenko, Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Alvaro Negrette Mejia, Jose Otero, Ananda Rajapaksha. (Attachments: # 1 Application for an Order to Show Cause, # 2 Exhibit A. Supp. Kim Decl., # 3 Exhibit B. Supp. Ostolaza Decl., # 4 Exhibit C. Supp. Oshiro Decl.).(Mathur, Suchita) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 03/31/2020)
***NOTICE TO COURT REGARDING PROPOSED ORDER TO SHOW CAUSE WITHOUT EMERGENCY RELIEF. Document No. 33 Proposed Order to Show Cause Without Emergency Relief, was reviewed and approved as to form. The Order to Show Cause looks like it is with a TRO, looking at the Declarations. (dt) (Entered: 03/31/2020)
34 REPLY to Response to Motion re: 16 MOTION for Temporary Restraining Order for Plaintiffs' Immediate Release. Reply in Support of Severance and in Opposition to the Joinder of Additional Parties. Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 03/31/2020)
35 ORDER. Accordingly, Respondents' motion to sever the original Petitioners is hereby denied without prejudice. See Dkt. No. 22 at 69. The Clerk of Court is directed to strike the First Amended Petition filed at Dkt. No. 29. The Petitioners Rajapaksha, Bondarenko, Arriaga Reyes, and Negrette Mejia may immediately refile with the Clerk of Court for random assignment. The Order to Show Cause for a Temporary Restraining Order with respect to the release of these Petitioners, Dkt. No. 33, is denied with leave to refile following random assignment of their habeas petition(s). SO ORDERED. (Signed by Judge Alison J. Nathan on 3/31/2020) (rjm) (Entered: 04/01/2020)
36 JOINT LETTER addressed to Judge Alison J. Nathan from AUSA Steven J. Kochevar dated April 7, 2020 re: Extension of Temporary Restraining Order. Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 04/07/2020)
37 MEMO ENDORSEMENT on re: 36 Letter. ENDORSEMENT: SO ORDERED. (Signed by Judge Alison J. Nathan on 4/7/2020) (jwh) (Entered: 04/07/2020)

04/15/2020 04/15/2020 04/15/2020 04/15/2020 04/24/2020 04/24/2020 05/13/2020
05/13/2020

38 TRANSCRIPT of Proceedings re: CONFERENCE held on 3/26/2020 before Judge Alison J. Nathan. Court Reporter/Transcriber: Martha Martin, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/6/2020. Redacted Transcript Deadline set for 5/18/2020. Release of Transcript Restriction set for 7/14/2020..(McGuirk, Kelly) (Entered: 04/15/2020)
39 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 3/26/2020 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 04/15/2020)
40 JOINT LETTER addressed to Judge Alison J. Nathan from AUSA Steven J. Kochevar dated April 15, 2020 re: Additional Extension of Temporary Restraining Order. Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 04/15/2020)
41 MEMO ENDORSEMENT on re: 40 JOINT LETTER addressed to Judge Alison J. Nathan from AUSA Steven J. Kochevar dated April 15, 2020 re: Additional Extension of Temporary Restraining Order. Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf. ENDORSEMENT: So ordered. (Signed by Judge Alison J. Nathan on 4/15/2020) (rjm) (Entered: 04/15/2020)
42 JOINT LETTER addressed to Judge Alison J. Nathan from AUSA Steven J. Kochevar dated April 24, 2020 re: Proposed Schedule and Extension of Temporary Restraining Order. Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 04/24/2020)
43 MEMO ENDORSEMENT on re: 42 Letter, filed by William Anderson, Carl E. Dubois, William P. Barr, Chad Wolf, Steven Ahrendt, Thomas Decker, Ronald P. Edwards. ENDORSEMENT: SO ORDERED. (Signed by Judge Alison J. Nathan on 4/24/2020) (jca) (Entered: 04/24/2020)
44 RESPONSE re: 1 Petition for Writ of Habeas Corpus, (Government Return). Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf. (Attachments: # 1 Exhibit 1 − Order of Release on Recognizance (Morocho Sumba), # 2 Exhibit 2 − I−213 (Morocho Sumba), # 3 Exhibit 3A − Page from NTA (Morocho Sumba), # 4 Exhibit 3B − Page from NTA (Morocho Sumba), # 5 Exhibit 3C − Page from NTA (Moroch Sumba), # 6 Exhibit 3D − Page from NTA (Morocho Sumba), # 7 Exhibit 3E − Pages from NTA (Morocho Sumba), # 8 Exhibit 3F − Pages from NTA (Morocho Sumba), # 9 Exhibit 4 − RAP Sheet (Morocho Sumba), # 10 Exhibit 5 − I−213 (Garcia Ponce), # 11 Exhibit 6 − Order of Supervision (Garcia Ponce), # 12 Exhibit 7 − RAP Sheet (Garcia Ponce), # 13 Exhibit 8 − Amended Order of Release on Recognizance (Otero), # 14 Exhibit 9 − I−213 (Otero), # 15 Exhibit 10 − NTA (Otero), # 16 Exhibit 11 − Certificate of Disposition (Otero), # 17 Exhibit 12 − Certificate of Disposition (Otero), # 18 Exhibit 13 − RAP Sheet (Otero), # 19 Exhibit 14 − Order of Release on Recognizance (Miranda), # 20 Exhibit 15 − I−213 (Miranda), # 21 Exhibit 16 − Certificate of Disposition (Miranda), # 22 Exhibit 17 − NTA (Miranda), # 23 Exhibit 18 − RAP Sheet (Miranda), # 24 Exhibit 19 − Notice of Custody Determination and Release on Recognizance (Madrid), # 25 Exhibit 20 − I−213 (Madrid), # 26 Exhibit 21 − Certificate of Disposition (Madrid), # 27 Exhibit 22 − NTA (Madrid), # 28 Exhibit 23 − RAP Sheet (Madrid), # 29 Exhibit 24 − Order of Release on Recognizance (Moristica), # 30 Exhibit 25 − I−213 (Moristica), # 31 Exhibit 26 − NTA (Moristica)).(Kochevar, Steven) (Entered: 05/13/2020)
45 DECLARATION of Supervisory Detention and Deportation Officer Khristoper Dawson in Opposition re: 1 Petition for Writ of Habeas Corpus,. Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 05/13/2020)

05/13/2020 05/13/2020 05/13/2020 05/13/2020 05/13/2020 05/13/2020 05/13/2020

46 DECLARATION of Alfaro Ortiz . Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 05/13/2020)
47 DECLARATION of Lionel Anicette, M.D. . Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 05/13/2020)
48 DECLARATION of Director Ron Edwards . Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 05/13/2020)
49 DECLARATION of Steven Ahrendt . Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 05/13/2020)
50 DECLARATION of Colonel Anthony Mele . Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 05/13/2020)
51 RESPONSE re: 1 Petition for Writ of Habeas Corpus, (Letter Brief). Document filed by Steven Ahrendt, William Anderson, William P. Barr, Thomas Decker, Carl E. Dubois, Ronald P. Edwards, Chad Wolf..(Kochevar, Steven) (Entered: 05/13/2020)
52 NOTICE OF APPEARANCE by Zoe Pokempner Levine on behalf of Josefina Coronel, Ramon Garcia Ponce, Jose Madrid, Miguel Miranda, Florencio Moristica, Juan Morocho Sumba, Jose Otero..(Levine, Zoe) (Entered: 05/13/2020)

 
 Case 1:20-cv-02472-AJN

Document 26

Filed 03/27/20

Page 1 of 21 USDCSDNV DOCUMENT ELECTRONICl\l.LY FILED DOC#:,_ __ _ _ __
DAT FILED: 3/27/20

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Josefina Coronel, et al., Petitioners-Plaintiffs,
–v– Thomas Decker, et al.,
Respondents-Defendants.

20-cv-2472 (AJN) OPINION & ORDER

ALISON J. NATHAN, District Judge: Petitioners bring this writ of habeas corpus and complaint seeking immediate release
from the custody of Immigration and Customs Enforcement (ICE). For the reasons that follow, the Court GRANTS their motion for a temporary restraining order, and orders Petitioners to be immediately RELEASED from immigration detention on conditions.
I. BACKGROUND The following facts are undisputed. Petitioners in this matter are civil immigration
detainees, currently being held in the custody of Immigration and Customs Enforcement. Br. at 1.1 Each of them “suffers from medical conditions that render them particularly vulnerable to severe illness or death if infected by COVID-19—vulnerabilities that are heightened in detention.” Id. Petitioner Jose Otero has been detained in ICE custody for four months. Ostolaza Decl. ¶¶ 9-10. “Otero was the victim of a violent assault that forced him to have a

1 This case was brought by seven habeas petitioners. After the petition was filed, ICE released three of the Petitioners. At oral argument, the parties agreed to limit this motion for emergency relief to the four Petitioners who remain in custody. See Mar. 26 Hr’g Tr. 6-7. The Court defers decision as to whether the habeas petition is moot as to the three out-of-custody Petitioners.
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nephrectomy (removal of left kidney), partial liver resection, and left lung resection . . . As a result of having major organs of his body partially removed, his immune system is significantly compromised.” Ostolaza Decl. ¶ 10. Petitioner Jose Madrid has been in ICE custody since January 2020. Id. ¶ 4. He suffers from type 2 diabetes and obesity. Id. ¶ 6. Petitioner Juan Morocho Sumba, who has been in ICE custody since December 2019, suffers from aortic valve disease, hypertension, and an enlarged heart. He has been unable to see a cardiologist in ICE custody even though he experiences ongoing chest pain. See Kim Decl. ¶¶ 23-25. Petitioner Miguel Miranda, who has been in ICE custody since February 2020, has type 2 diabetes and gastrointestinal problems. Ostolaza Decl. ¶¶ 14-17.
Petitioners allege that they face a uniquely serious medical risk from COVID-19, a global pandemic, due to their underlying health conditions. They note that each of these medical conditions alone places them in high-risk categories with respect to COVID-19. And that risk is further amplified because the conditions are “co-morbidities.” Br. at 2. Moreover, Petitioners have represented in both their briefing and at the March 2 hearing that there have been confirmed cases at two of the three facilities where Petitioners are detained. Id.; Mar. 26 Hr’g Tr. at 52.
On March 20, 2020, Petitioners began this action by filing “a Petition for Writ of Habeas Corpus and Complaint for Injunctive Relief.” See Dkt. No. 1. Their complaint alleges two claims for relief: first, that the Government violated their substantive due process rights by being deliberately indifferent to their medical needs, and second, that the Government violated their procedural due process rights by failing to provide them with an adequate bond hearing. Each petitioner also seeks habeas relief, requesting either immediate release or a bond hearing within 48 hours. Id. Petitioners then filed a motion for a temporary restraining order, seeking their immediate release from ICE custody. Dkt. No. 16. On March 25, 2020, Petitioners sought
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emergency relief from the Court and submitted a proposed Order to Show Cause. Dkt. No. 20. Yesterday, the Court held oral argument on the motion now before the Court. At oral argument, the parties consented to resolution of this TRO motion on the factual record now before the Court. See Mar. 26 Hr’g Tr. at 4:10–5:18. II. SEVERANCE
As a threshold matter, the Court considers the Government’s argument that the claims of the Petitioners should be severed and brought in separate habeas petitions rather than joined in a single action. While severance may be appropriate, the Court will not decide the issue at this early stage of the litigation, on a motion for emergency relief, and without the benefit of full briefing on the issue. Considerations of judicial economy—the Court has already read and digested the record and heard lengthy oral argument on this motion—and the urgent need to timely decide Petitioners’ motion for a temporary restraining order in light of the immediate risk to the health of the Petitioners counsel against severance at this juncture. Cf. Golden Goose Deluxe Brand v. Aierbushe, No. 19-cv-2518 (VEC), 2019 WL 2162715, at *3–4 (S.D.N.Y. May 16, 2019) (declining to sever parties, even where the Court believed their joinder was improper, prior to issuing a temporary restraining order because it concluded that doing so would not serve judicial economy).
Because the Court did not receive briefing on this issue from Petitioners, the parties shall meet and confer and propose a briefing schedule within three days of the date of this Opinion and Order so that the Court may address severance going forward. III. TEMPORARY RESTRAINING ORDER LEGAL STANDARD
“A preliminary injunction is an equitable remedy and an act of discretion by the court.” Am. Civil Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015). The same standard
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governs consideration of an application for a temporary restraining order. Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). In general, a party seeking a preliminary injunction or temporary restraining order “must . . . show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in the party’s favor, and that an injunction is in the public interest.” Clapper, 804 F.3d at 622 (citing Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). The burden on the moving party is even higher where, as here, a party seeks a mandatory injunction—that is, an injunction commanding a positive act, as opposed to one that merely maintains the status quo. The Second Circuit has instructed that a mandatory injunction “should issue ‘only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief.’” Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985)). IV. IRREPARABLE HARM
“The showing of irreparable harm is ‘[p]erhaps the single most important prerequisite for the issuance of a” temporary restraining order. Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (quoting Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983)). Under this prong, parties seeking a temporary restraining order “must show that, on the facts of their case” and in the absence of the requested injunction, they will suffer a harm that “cannot be remedied after a final adjudication, whether by damages or a permanent injunction.” Salinger v. Colting, 607 F.3d 68, 81–82 (2d Cir. 2010). In addition, the harm must be “neither
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remote nor speculative, but actual and imminent.” Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (internal quotation marks and citation omitted).
Petitioners establish irreparable harm in two different ways. First, “the alleged violation of a constitutional right . . . triggers a finding of irreparable harm,” Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996), and Petitioners allege in their petition that their substantive and procedural due process rights have been violated. Accordingly, “no further showing of irreparable injury is necessary.” Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”).
Second, irreparable harm exists where, as here, petitioners “face imminent risk to their health, safety, and lives.” Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 214 (E.D.N.Y. 2000), aff'd sub nom. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003). Due to their serious underlying medical conditions, all Petitioners face a risk of severe, irreparable harm if they contract COVID-19. Indeed, an “[a]nalysis of close to 1,600 COVID-19 cases in China found that patients with at least one co-morbidity—including cardiovascular disease, diabetes and chronic kidney diseases—‘had a 79% greater chance of requiring intensive care or a respirator or both, or of dying.’” Br. at 2 (quoting Sharon Begley, Who is Getting Sick, and How Sick? A Breakdown of Coronavirus Risk by Demographic Factors, STAT NEWS (Mar. 3, 2020), https://www.statnews.com/2020/03/03/who-is-getting-sick-and-how-sick-a-breakdown-ofcoronavirus-risk-by-demographic-factors/). Moreover, being in immigration detention places Petitioners at significantly higher risk of contracting COVID-19. Individuals in carceral settings are at a “significantly higher” risk of spreading infectious diseases. See Mishori Decl. ¶ 16. It is not possible to isolate immigration detainees from the outside world (including from staff and
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vendors who may have been exposed to COVID-19), nor is it possible to isolate them from one another. See id. ¶ 24, 34–35; Letter from Dr. Scott A. Allen, Professor, Univ. of Cal. Riverside Sch. of Med. & Dr. Josiah “Jody” Rich, Professor, Brown Univ. to Bennie Thompson, Chairman, House Comm. on Homeland Sec., et. al. 5 (Mar. 19, 2020). As a result, jails will struggle to contain any eventual outbreak of COVID-19. See Mishori Decl. ¶¶ 19, 42–43. The imminence of this risk is underscored by the fact that two of the three jails housing the remaining Petitioners have confirmed cases of COVID-19. See Velesaca v. Wolf, No. 20-cv-1803 (AKH) (S.D.N.Y. March 25, 2020), Declaration of Captain Jennifer Moon, Dkt. No. 57; March 26 Hr’g Tr. at 52:15–18.
V. LIKELIHOOD OF SUCCESS ON THE MERITS OF SUBSTANTIVE DUE PROCESS CLAIM A. Legal Standard The Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits the
Government from treating the medical needs of incarcerated individuals with deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 103–04 (1976); accord Charles v. Orange Cty., 925 F.3d 73, 82 (2d Cir. 2019). The Eighth Amendment, however, does not apply to civil detainees. Such individuals “have not been convicted of a crime and thus may not be punished in any manner—neither cruelly and unusually nor otherwise.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007)) (internal quotation marks omitted). The Supreme Court has held, however, that “persons in civil detention deserve at least as much protection as those who are criminally incarcerated.” Charles, 925 F.3d at 82 (citing Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). For federal civil detainees, those rights are cognized under the Fifth Amendment’s Due Process Clause. Id. The Due Process Clause thus prohibits the federal
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government from being deliberately indifferent to the medical needs of civil detainees. “[D]eliberately indifferent conduct” directed towards civil detainees is “egregious enough to state a substantive due process claim.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 849–50 (1998). And the Due Process Clause applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
Courts in the Second Circuit use a two-prong test to review such claims. See Charles, 925 F.3d at 85–86. On the first prong, Petitioners must show that they have serious, unmet medical needs. On the second, they must show that Defendants acted with deliberate indifference to these needs. Id.
B. Petitioners Have Serious, Unmet Medical Needs “The serious medical needs standard contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain.” Charles, 925 F.3d at 86 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). “In most cases, the actual medical consequences that flow from the denial of care are highly relevant in determining whether the denial of treatment subjected the detainee to a significant risk of serious harm.” Id. Here, the Government does not challenge Petitioners’ assertion that they have serious, unmet medical needs. And on this record, there is little room to make such an argument. As discussed above, the individual Petitioners have co-morbidities that make them particularly vulnerable if they contract COVID-19. For example, Petitioner Otero has had part of his lung removed, Ostolaza Decl. ¶¶ 9-10, rendering him especially vulnerable to the respiratory illness and distress caused by COVID-19. See also id. ¶¶ 6, 13–19; Kim Decl. ¶¶ 23–25. Petitioners therefore have a serious medical need to socially distance themselves from other individuals in
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sanitary conditions, in order to avoid contracting the virus and thereby potentially suffering “death, degeneration, or extreme pain.” Indeed, the Government does not dispute that the Petitioners here are, due to their existing medical conditions, in a high-risk category for experiencing serious injury and death from COVID-19. Mar. 26 Hr’g Tr. at 22:12–14 (“I don’t think there’s a basis for the government to dispute that in the record right now.”). Yet the carceral setting in which they are detained means that preventative strategies like social distancing are difficult to implement, thus creating a “significantly higher” risk for spread of infectious diseases like COVID-19. Mishori Decl. ¶¶ 16, 35.
Numerous Courts, including several in this District, have recognized the unprecedented threat COVID-19 poses to detained individuals. See Basank v. Decker, No. 20-cv-2518 (AT), (S..D.N.Y. Mar. 26, 2020); United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”); United States v. Garlock, 18-cr-418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large— created by large prison populations. The chaos has already begun inside federal prisons . . . .” (citations omitted); United States v. Barkman, No. 3:19-cr-0052 (RCJ), 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020). In United States v. Martin, the Court specifically explained that exposure to COVID-19 can lead to “serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.” No. 19-cr-140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (noting that incarcerated individuals “may well” have a cognizable substantive due process claim in such a scenario).
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Moreover, Petitioners’ medical needs remain unmet. As discussed below, the record demonstrates that ICE has not taken any action to address the particular risks COVID-19 poses to high-risk individuals like the Petitioners here. And the Department of Homeland Security’s own “medical subject matter experts” state that the agency has a “track record . . . of failing to develop early detection and containment protocols for infectious diseases outbreaks” and point out problems with detention facilities’ protocols surrounding screening, testing, and isolation. Letter from Dr. Scott Allen and Dr. Jody Rich at 1, 5;2 see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect inmates from infectious disease”) (citing cases). In short, on the undisputed factual record in this case, Petitioners have met their burden on the first prong.
C. On This Record, the Government Has Shown Deliberate Indifference to Petitioners’ Medical Needs
The Court next moves to the inquiry’s second prong, which requires challengers to show that the defendant acted with deliberate indifference to the challenged conditions. This prong “has a . . . complicated history in this Circuit.” Charles, 925 F.3d at 86. To start, although courts have often referred to this as the “subjective prong” of the inquiry, it is “better classified as a ‘mens rea prong’ or ‘mental element prong.’” Darnell, 849 F.3d at 29. Indeed, the phrase “subjective” in this prong “might be a misleading description in that . . . ‘deliberate indifference’ roughly means ‘recklessness,’ but ‘recklessness’ can be defined subjectively (what a person actually knew, and disregarded), or objectively (what a reasonable person knew, or should have known).” Darnell, 849 F.3d at 35 (citing Farmer v. Brennan, 511 U.S. 825, 836–37 (1994)); see also Charles, 925 F.3d at 86 (deliberate indifference “can be shown by something akin to recklessness, and does not require proof of a malicious or callous state of mind”). In short, a
2 Both Dr. Allen and Dr. Rich “currently serve as medical subject matter experts for the Department of Homeland Security’s Office of Civil Rights and Civil Liberties.” Allen Letter at 1–2.
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petitioner establishes a claim for deliberate indifference by “prov[ing] that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35. This is a question of fact, susceptible to proof by circumstantial evidence. “Whether the state knew or should have known of the substantial risk of harm to the detainee is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Charles, 925 F.3d at 87.
To begin, Petitioners put forward undisputed evidence that ICE had actual knowledge of their serious, unmet medical conditions. Each Petitioner submitted a letter to ICE detailing his or her medical conditions and explaining that those conditions predisposed them to higher risk from contracting COVID-19. As Petitioners explain, they each notified the Government about the particular circumstances of their cases and their high risk of harm. Br. at 17; see Ostolaza Decl. ¶¶ 8, 12, 18–19; Kim Decl. ¶¶ 10, 21, 26, 34. And they did so multiple days before this litigation began. Petitioner Morocho submitted his letter to the Government on March 19, Petitioner Madrid on March 17, Petitioner Miranda on March 16, and Petitioner Otero on March 13. Mar. 26 Hr’g Tr. at 27:9–11. The Government was thus aware of the petitioners’ medical conditions and the serious harm that COVID-19 posed to them.
Nevertheless, the Government can point to no specific action that it took in direct response to this serious, unmet medical need. Indeed, the record contains no evidence that the Governent took any specific action to prevent the spread of COVID-19 to high-risk individuals, like the Petitioners, currently being held in civil detention. It has not isolated these high-risk individuals. It has not created special safety or hygiene protocols for them or for staff interacting
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with them to follow. It has not implemented a protocol to test individuals coming into jails or individuals who are in jails, either for COVID-19 itself or even for a high fever. And of course, it has not released the Petitioners at issue here, even though doing so is within the agency’s sound discretion. The Government could, for example, put in place a procedure to identify highrisk detainees and use its discretion to release them, taking into account as appropriate risk of flight and danger to the community, but it has not taken such a course. Instead, on the record before the Court, it has no system to even determine which of its detainees face heightened risk from COVID-19, let alone release them.
To be sure, the record demonstrates that ICE has taken some steps in response to COVID-19. It has suspended inmate visits, increased sanitization of certain areas, and begun to provide hand sanitizer to inmates. See Mishori Decl. ¶ 35; see also Moon Decl. ¶ 14 (noting that Petitioners’ jails have, among other things, “increased sanitation frequency and provide [various] sanitation supplies.”). However, Dr. Mishori contends that “[n]one of these steps are adequate to mitigate the transmission of the virus when there’s already documented community-based transmission, and spread of coronavirus from staff, vendors, or contractors.” Mishori Decl. ¶ 35. The Government puts forward no evidence contesting that assertion. And even the steps that the Government has taken do nothing to alleviate the specific, serious, and unmet medical needs of the high-risk Petitioners in this matter. And it is on the Petitioners in this case that the Court must direct its attention when conducting this constitutional inquiry, not on all inmates generally. See Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (holding that even if a policy is “generally justifiable,” its application to a particular individual could still “amount[] to deliberate indifference to plaintiff’s medical needs”). As to the specific and especially vulnerable detainees at issue in this litigation, the Government has taken no preventative action at all.
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Petitioners have also identified a series of problems that routinely plague attempts to provide adequate medical care to ICE detainees. For example, they note that ICE often fails to keep “accurate and sufficient medical records,” which makes it “more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection.” Mishori Decl. ¶ 41. Similarly, ICE facilities have “[i]nadequate screening and testing procedures,” id., making it more difficult to prevent the spread of COVID-19. Once again, the Government has taken no measures to alleviate these problems with respect to this specific high-risk population.
In short, the Government knew of a serious medical risk to Petitioners, but took no action in response. The Second Circuit has found such facts, albeit at a different procedural posture, to be sufficient to support a claim for deliberate indifference. In Charles, the Second Circuit found plaintiffs’ complaint sufficient on this prong in part because it alleged that defendants had “diagnosed Plaintiffs, maintained their medical records, created treatment plans for them, and prescribed” them medication, and thus were “aware” of plaintiffs’ medical conditions. Charles, 925 F.3d at 88.
In a recent decision, Judge Torres came to the same conclusion in a factually similar case. See Basank v. Decker, No. 20-cv-2518 (AT), (S.D.N.Y. Mar. 26, 2020), Dkt. No. 11. In Basank, petitioners were detained by ICE at some of the same facilities at issue in this case—the jails of Bergen and Essex Counties. Id. The petitioners, like those here, suffered “from chronic medical conditions” and faced “an imminent risk of death or serious injury in immigration detention if exposed to COVID-19.” Id. The petitioners thus sought a temporary restraining order directing their immediate release from ICE custody. As is true in this litigation, the Government in Basank “could [not] provide the Court with any information about steps taken to protect high-
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risk detainees like Petitioners.” Id. The court therefore held “that Petitioners are likely to succeed on the merits of their due process claim that Respondents knew or should have known that Petitioners’ conditions of confinement pose excessive risks to their health.” Id.
This Court now concludes, on the record before it, that Petitioners have demonstrated a likelihood of success on their claim the Government’s actions constitute deliberate indifference to Petitioners’ medical needs, and thus violate the Fifth Amendment’s substantive due process guarantee. The Court does not come to this preliminary conclusion lightly, and it recognizes that Respondents face extremely difficult and changing circumstances as they confront an extraordinary public-health emergency. In so concluding, the Court notes that a different conclusion might follow if the Government had introduced any evidence of actions it took in response to the particular risk COVID-19 poses to high-risk individuals like the Petitioners here. On this record, however, the Respondents took no action at all, and that is insufficient to satisfy their Constitutional obligations. VI. LIKELIHOOD OF SUCCESS ON THE MERITS OF PROCEDURAL DUE
PROCESS CLAIM The Court next considers Petitioners’ separate argument that Respondents are violating Petitioners’ rights to procedural due process under the Fifth Amendment. To understand Petitioners’ argument, some background on civil immigration detention is needed. Immigrants detained under 8 U.S.C. § 1226 are entitled to a bond hearing. See Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *1 (S.D.N.Y. May 23, 2018); Linares Martinez v. Decker, No. 18-CV-6527 (JMF), 2018 WL 5023946, at *4 (S.D.N.Y. Oct. 17, 2018) (noting that a “slew of cases” applies this protection to immigrants detained under both § 1226(a) and § 1226(c)). In these bond hearings, immigration judges, applying binding Board of Immigration Appeals precedent, require detainees to bear the burden of proving that they are not
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a danger to the community or a flight risk. And immigration judges, again applying binding agency precedent, do not need to consider alternatives to detention or an immigrant’s ability to pay in making bond determinations. See generally Matter of Guerra, 24 I. & N. Dec. 37, 38–40 (B.I.A. 2006). Myriad courts in this Circuit, however, have found that these procedures violate the Fifth Amendment’s due process guarantee, ordered the Government to bear the burden by clear and convincing evidence, and directed immigration judges to consider alternatives to detention. See, e.g., Guerrero v. Decker, No. 19 Civ. 11644 (KPF), 2020 WL 1244124, at **3–5 (S.D.N.Y. Mar. 16, 2020) (citing cases). This Court has reached the same conclusion. See Medley v. Decker, No. 18-cv-7361 (AJN), 2019 WL 7374408, *4 (S.D.N.Y. Dec. 11, 2019).
The relevant procedural right in this case, however, does not involve only the allocation of the burden in a bond hearing or whether the judge should consider alternatives. Instead, the relevant right is to a timely bond hearing that takes account of the unique circumstances of these Petitioners in light of the COVID-19 pandemic.
Petitioners have put forward evidence that immigration courts are, due to the COVID-19 pandemic, struggling to manage their caseload, hold timely hearings, and consider relevant evidence. The Government does not contest these factual allegations, nor does it offer any evidence to contradict them. At the very least, Petitioners are entitled to a bond hearing. And the Government contends that it is providing all the process Petitioners are entitled because “the petitioners each have bond hearings (or master calendar hearings at which they may seek bond . . .) in the coming weeks.”). Opp. at 14. But the scheduling of hearings alone does not end the Court’s due-process inquiry. Procedural due process “is not a technical conception with a fixed content unrelated to time, place and circumstances, . . . but is flexible and calls for such procedural protections as the particular situation demands.” Martinez v. McAleenan, 385 F.
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Supp. 3d 349, 363 (S.D.N.Y. 2019) (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). The particular circumstances of this case require expeditious bond hearings. As the Court has discussed repeatedly, Petitioners are uniquely vulnerable to COVID-19. The longer they spend in civil detention, the greater their chances of contracting the disease. A hearing weeks from now may be no relief at all, because Petitioners may contract COVID-19 in the interim and face serious health consequences—including death. Moreover, given the circumstances, the immigration court conducting the bond hearing should take into account the particular health dangers COVID-19 poses to these Petitioners. In short, therefore, the Court concludes that Petitioners have demonstrated a likelihood of success on their claim that the Due Process Clause entitles Petitioners to an expeditious bond hearing that considers the individualized risk that COVID-19 poses to their health. VII. BALANCE OF THE EQUITIES AND PUBLIC INTEREST
Where the Government is the opposing party, the final two factors in the temporary restraining order analysis—the balance of the equities and the public interest—merge. Planned Parenthood of New York City, Inc. v. U.S. Dep’t of Health & Human Servs., 337 F. Supp. 3d 308, 343 (S.D.N.Y. 2018). For the reasons stated below, Petitioners have demonstrated that the balance of equities and the public interest clearly weigh in their favor.
First, as this Court has previously stated, the “public interest is best served by ensuring the constitutional rights of persons within the United States are upheld.” Sajous v. Decker, No. 18-cv-2447 (AJN), 2018 WL 2357266, at *13 (S.D.N.Y. May 23, 2018). As discussed above, Petitioners have established a likelihood of success on the merits on their substantive and procedural due process claims. Accordingly, the public interest is best served by enjoining further likely violations of Petitioners’ rights through their release.
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Furthermore, both Petitioners and the public benefit from ensuring public health and safety, see Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”), and, under the circumstances, the public interest in ensuring public health is also best served by Petitioners’ release. As their medical expert points out, a COVID-19 outbreak at a detention facility could “quickly overwhelm[] the already strained health infrastructure within the facility,” which would then place strain on the surrounding community hospitals. See Mishori Decl. ¶ 26. Accordingly, “reducing the size of the population in jails and prisons . . . reduc[es] the level of risk both for those within those facilities and for the community at large.” Id. ¶ 45; cf. United States v. Stephens, No. 15-cr-95 (AJN), 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 18, 2020). Indeed, “where detainees are released from high risk congregate settings, the tinderbox scenario of a large cohort of people getting sick all at once is less likely to occur, and the peak volume of patients hitting the community hospital would level out.” Allen Letter at 4.
A comprehensive assessment of these factors requires the Court to balance the public interest in Petitioners’ release articulated above—including the harm that they and others may face if they remain detained—with any public interest in Petitioners’ continued detention— including any risk of flight or danger to the community that Petitioners pose. The Government concedes that the record does not contain any evidence that Petitioners pose a risk of flight.3 Mar. 26 Hr’g Tr. at 47:9–18. Moreover, the only evidence of Petitioners’ dangerousness that the
3 Even if the Government is correct that Petitioners entered this country without authorization, that does not necessarily make them a flight risk. Petitioners have submitted evidence that they each have significant ties to their local communities in this country. See Ostolaza Decl. ¶¶ 4–19; Kim Decl. ¶¶ 23–25.
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Government offers is based on Petitioners’ prior criminal records. Mar. 26 Hr’g Tr. at 47:5–8; see also Opp. at 2–4. But Petitioners, who are detained pursuant to § 1226(a), at most have relatively limited criminal histories, with only two convictions for disorderly conduct, a noncriminal violation, between them.4 See Mar. 26 Hr’g Tr. at 48:16–49:19.
In light of the fact that the Government has offered no evidence that Petitioners pose a risk of flight and limited evidence that they pose a danger to the community, it is clear that the Government’s interest—and thus the public interest—in Petitioners’ continued detention is far outweighed by the public interest in their release in light of the rapidly-evolving public health crisis engendered by the spread of COVID-19. Accordingly, the balance of the equities and the public interest weigh in favor of granting Petitioners’ motion for a temporary restraining order. VIII. REMEDIES
In light of the conclusion that Petitioners are likely to succeed on the merits of their substantive and procedural due process claims, the Court must determine the appropriate interim remedy. In Mapp v. Reno, the Second Circuit held “that the federal courts have inherent authority to admit to bail individuals properly within their jurisdiction” including immigration detainees petitioning for habeas relief. 241 F.3d 221, 226 (2d Cir. 2001). But “this power is a limited one, to be exercised in special cases only.” Id. To determine a petitioner’s “fitness for bail” pending adjudication of a habeas petition, the Court “must inquire into whether ‘the habeas petition raises 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.
4 Arrests of Petitioners Madrid and Otero resulted in non-criminal convictions for disorderly conduct. Another arrest of Petitioner Otero resulted in an adjournment in contemplation of dismissal. All charges arising from an arrest of Petitioner Miranda were dismissed and sealed just three months after arrest. Misdemeanor menacing charges remain pending against Petitioner Sumba. See Mar. 26 Hr’g Tr. at 48:16–49:19.
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Nardoza, 662 F.2d 159, 161 (2d Cir. 1981)) (alterations in original). Additionally, some courts applying Mapp also consider “whether the petitioner has demonstrated a likelihood of success on the merits of his or her petition.” Boddie v. New York State Div. of Parole, No. 08-cv-9287 (LAP), 2009 WL 1531595, at *1 (S.D.N.Y. May 28, 2009). The parties agree that Mapp and the standard articulated therein govern the proper remedy here.5
For the reasons stated above, the Court finds that Petitioners have raised substantial claims and demonstrated a likelihood of success on the merits for both their deliberate indifference and procedural due process claims. The Court thus turns to whether the deliberate indifference and procedural due process claims each involve “extraordinary circumstances” that “make the grant of bail necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 230 (quotation omitted).
A. Deliberate Indifference Severe health issues have been the prototypical but rare case of extraordinary circumstances that justify release pending adjudication of habeas. See S.N.C. v. Sessions, No. 18-cv-7680 (LGS), 2018 WL 6175902, at *6 (S.D.N.Y. Nov. 26, 2018); Kiadii v. Decker, No. 18-cv-1584 (AT), 2018 WL 10456549, at *2 (S.D.N.Y. Mar. 2, 2018); Skakel v. Murphy, No. 3:07-cv-1625 (PCD), 2009 WL 2253175, at *5 (D. Conn. July 27, 2009). The aim of the deliberate indifference claim is to ensure constitutionally adequate protection from COVID-19 in light of Petitioners’ underlying health conditions. As discussed above, the Court has found that, with regard to the particular circumstances of this case, there is a likelihood that Petitioners are being subjected to unconstitutional conditions of confinement, and that the risks posed by
5 The Government contends that it is not relevant whether Petitioners pose a danger to the community or a risk of flight. Even if the Court were to consider these factors, they would reinforce its decision to grant temporary release, as discussed above. See supra Section VII.
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COVID-19 are imminent. If Petitioners were to remain detained, they would face a significant risk that they would contract COVID-19—the very outcome they seek to avoid. Release is therefore necessary to “make the habeas remedy effective.” Mapp, 241 F.3d at 230 (quotation omitted); see also Calderon Jimenez v. Wolf, No. 18-cv-10225 (MLW), Dkt. No. 507-1, at 3–4 (D. Mass. Mar. 26, 2020) (granting release under Mapp where the risk of a COVID-19 outbreak in the relevant prison constituted an extraordinary circumstance).
B. Procedural Due Process Although the determination above is sufficient to resolve this motion, the Court in the alternative likewise and independently finds extraordinary circumstances with regards to Petitioners’ procedural due process claims. Typically, courts do not find extraordinary circumstances for habeas petitions where a constitutionally adequate bail hearing is the relief sought. See, e.g., Reid v. Decker, 19-cv-8393 (KPF), 2020 WL 996604, at *13 (S.D.N.Y. Mar. 2, 2020); Fernandez Aguirre v. Barr, 19-cv-7048 (VEC), 2019 WL 3889800, at *4 (S.D.N.Y. Aug. 19, 2019). But these are not normal circumstances. COVID-19 has placed the Petitioners in a Catch-22. They seek a constitutionally adequate bond hearing where they can attempt to address not only their entitlement to bond on the traditional factors, but also the heightened risk that they will contract COVID-19 due to their incarceration, as well as the potentially deadly consequences that may follow in light of their serious medical conditions. But, as discussed above, Petitioners have been forced to wait and remain detained. This delay increases the probability that they will contract COVID-19 in the interim. If Petitioners contract COVID-19 and suffer serious health impacts or even death as a result of their underlying medical conditions, the claim that they seek to pursue in the bond hearing would effectively be moot. See Umana
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Jovel v. Decker, No. 20-cv-308 (GBD) (SN), 2020 U.S. Dist. LEXIS 52095, at *12-*16 (S.D.N.Y. Mar. 24, 2020).
Furthermore, Petitioners’ underlying health conditions likely require them to receive expeditious bond hearings. Requiring Petitioners to wait a significant additional period of time in detention is an inadequate remedy given their exceptionally imminent health risks. Finally, the public health crisis caused by COVID-19 has limited the ability of detainees to get in contact with counsel in order to prepare for a bond hearing. See, e.g., See Ostolaza Decl. ¶ 20; Kim Decl. ¶ 32; Oshiro Decl. ¶ 12.
In order to secure a meaningful bond hearing and therefore preserve the effectiveness of the remedy sought on habeas, Petitioners must be released until they receive their bond hearings. See S.N.C., No. 18-cv-7680 (LGS), 2018 WL 6175902, at *6 (releasing under Mapp where detention contributed to mental health deterioration such that petitioner had to be released “before her health decline[d] past the point at which she [was] unable” to pursue her habeas claim). Moreover, the bond hearings must be constitutionally adequate. In addition to considering the serious risk of harm to Petitioners posed by COVID-19, the immigration court must place the burden on the Government to prove, by clear and convincing evidence that Petitioners either pose a danger to the community or a risk of flight. See Medley v. Decker, No. 18-cv-7361 (AJN), 2019 WL 7374408, at *4 (S.D.N.Y. Dec. 11, 2019). IX. CONCLUSION
For the foregoing reasons, the Court GRANTS Petitioners’ motion for a temporary restraining order. The Court therefore orders Respondents to immediately RELEASE Petitioners on reasonable conditions. The parties are hereby ordered to meet and confer and propose reasonable bond conditions no later than 12 PM on March 27, 2020.
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This resolves Dkt. No. 16. SO ORDERED.

Dated: March ___2_7___, 2020 New York, New York

____________________________________ ALISON J. NATHAN
United States District Judge

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 Case 1:20-cv-02472-AJN Document 28 Filed 03/27/20 Page 1 of 8
SO ORDERED 3/27/20

3/27/20

Alison J. Nathan, U.S.D.J.
By ECF AND EMAIL Hon. Alison J. Nathan United States District Judge Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

March 27, 2020
Mr. Otero and Mr. Miranda shall be released on the parties' agreed-upon conditions. Mr. Morocho Sumba and Mr. Madrid shall be released on the parties' agreed upon conditions as well as electronic monitoring, so long as electronic monitoring does not delay release by 5 p.m. SO ORDERED.

RE: Coronel et al. v. Decker, No. 20-cv-2472 (AJN)

Dear Judge Nathan:

We write jointly pursuant to the Court’s Order (ECF No. 26) that the parties confer and propose reasonable bond conditions today. The parties have conferred and agree about the terms of release for two of the four petitioners, Jose Otero and Miguel Miranda. The parties do not agree about the terms of release for the remaining two petitioners, Juan Morocho Sumba and Jose Madrid. Further, the government has committed to releasing all four individuals by no later than 5pm today on conditions that it deems appropriate.

• As to Mr. Otero and Mr. Miranda, the parties propose that they be released on their own recognizance and enrolled in the Intensive Supervision Appearance Program (ISAP) subject to the following conditions: that they not violate any laws or ordinances; that they surrender for removal, if so ordered, and that they keep ICE and EOIR advised of any changes in address.
• As to Mr. Morocho Sumba and Mr. Madrid, the petitioners propose that they be released on the same conditions. The government proposes that they be released on these conditions as well as electronic monitors. The parties’ positions are as follow:

Petitioners’ position:

The government has not identified any flight risk concerns for Mr. Morocho or Mr. Madrid that would necessitate the severe deprivation of liberty that an ankle monitor would represent. In addition, other clients of The Legal Aid Society and Bronx Defenders who have been fitted with ankle bracelets uniformly report such monitoring is painful, and cumbersome in terms of daily living (including maintaining hygiene). Further, having an ankle bracelet can interfere with the ability to seek medical treatment and can prevent certain medical procedures such as MRIs, xrays, and CT scans from being completed if necessary. The petitioners would be amenable to other reasonable conditions for Mr. Morocho and Mr. Madrid’s such as telephonic check-ins.

Mr. Morocho, who will live with his sister in Ossining, New York if released, is a loving father of two United States citizen children, who has no criminal convictions and only a single open charge that he is vigorously contesting. To provide the Court with additional information regarding the circumstances of his ongoing criminal case, the petitioners attach as Exhibit A a letter from his criminal defense counsel.

Case 1:20-cv-02472-AJN Document 28 Filed 03/27/20 Page 2 of 8
Mr. Madrid has lived in the United States for over 20 years and has United States citizen and lawful permanent resident family members who will support him upon release when he will return to his community in Peekskill, New York. He has a U.S. citizen sister who also resides in Westchester County and he will be living near his cousin in Peekskill. He has worked at the same company, Manzer’s Landscaping, for two decades, and will return to working there once released as his health permits. His entire criminal record consists of two non-criminal convictions for disorderly conduct. Respondents’ position: The government’s position with respect to Mr. Morocho Sumba and Mr. Madrid is that ankle monitoring is appropriate in light of the crimes for which they were each arrested. Although the government understands that petitioners have made representations about the subsequent developments in Mr. Morocho Sumba’s case and the ultimate non-criminal disposition of Mr. Madrid’s case, the government respectfully submits that the exercise of its discretion to require monitoring of Mr. Morocho Sumba and Mr. Madrid is appropriate in light of their histories. In addition, the government does not understand ankle monitoring to increase any risk of infection with COVID-19. If circumstances arise where Mr. Morocho Sumba or Mr. Madrid determine removal of their ankle monitoring is necessary for medical reasons, they may present such circumstances to the Department of Homeland Security. The government also wishes to note that it interpreted the Court’s Order of this morning to require immediate release on reasonable conditions, and the parties to meet and confer and propose conditions to each other by 12:00 pm today. To the extent this was a misinterpretation, the government apologizes for any delay this may have caused in presenting the current issue to the Court. As noted above, the government has agreed to release all the petitioners by 5:00 pm today on what it considers to be reasonable conditions.
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Respectfully submitted, /s/ Suchita Mathur Suchita Mathur Zoe Levine THE BRONX DEFENDERS /s/ Aadhithi Padmanabhan Aadhithi Padmanabhan Julie Dona Lilia Toson THE LEGAL AID SOCIETY Counsel for Petitioner GEOFFREY S. BERMAN United States Attorney By: /s/ Steven J. Kochevar STEVEN J. KOCHEVAR Assistant United States Attorney 86 Chamber Street, 3rd Floor New York, NY 10007 Telephone: (212) 637-2715 Fax: (212) 637-2717 Email: steven.kochevar@usdoj.gov
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EXHIBIT A

Case 1:20-cv-02472-AJN Document 28 Filed 03/27/20 Page 5 of 8

CLARE J. DEGNAN EXECUTIVE DIRECTOR

THE LEGAL AID SOCIETY OF WESTCHESTER COUNTY
150 GRAND STREET SUITE 100 WHITE PLAINS NY 10601 T (914) 286-3400 F (914) 682-4112
SHERRY L. WALLACH DEPUTY EXECUTIVE DIRECTOR

Executive Office for Immigration Review Immigration Judge Mulligan 201 Varick Street, 5th Fl New York, NY 10014

March 24, 2020

RE: Juan Morocho-Sumba, DOB 5/11/74

Dear Judge Mulligan, I am writing in reference to the above-named client with respect to his open criminal
matter pending in the Town of Ossining Town Court in Westchester County. I hereby affirm that the following statements are true, except as to those statements made upon information and belief: 1. I am Senior Associate Counsel at the Legal Aid Society of Westchester County and I
represent the defendant on an un-indicted criminal matter pending in Ossining Town Court.

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2. Juan Morocho-Sumba was arraigned on October 27, 2019 on a Felony Complaint charging him with one count of Rape in the First Degree.
3. Defense counsel was served notice on October 31, 2019 that Mr. Morocho-Sumba’s case was being presented to the Grand Jury for indictment on November 8, 2019.
4. On November 12, 2019, defense counsel was advised that the case had ​not​ been presented to the Grand Jury on November 8, 2019 and that the District Attorney’s Office instead intended to file a “superseding misdemeanor information” charging the defendant with Menacing in the Second Degree. On the record, in Ossining Court, the District Attorney made an offer of six months in the Westchester County Jail on a plea to one count of PL §120.14, Menacing in the Second Degree, a Class A Misdemeanor.
5. Upon being informed that the case had not been presented to the Grand Jury, defense counsel immediately inquired of the prosecution whether or not ​Brady​ material existed as it is highly unusual for Grand Jury notice to be served and then for a case to ultimately not be presented to the Grand Jury. The very fact that it had not been presented was an indication that there were potential defects in the case. In over eight years of practice in Westchester County, defense counsel has never encountered a situation in which Grand Jury notice had been served but no Grand Jury presentation was made.
6. On December 3, 2020, Mr. Morocho-Sumba was released on his own recognizance based on the representation that the District Attorney’s Office was intending on filing a superseding misdemeanor information on a future date.
7. On December 23, 2019, defense counsel had a phone conversation with Assistant District Attorney Karen Herbert in which ADA Herbert advised defense counsel of the existence of

Case 1:20-cv-02472-AJN Document 28 Filed 03/27/20 Page 7 of 8
Brady​ material relating to the instant matter. Specifically, conversations between ADA Herbert and the complainant regarding the facts of the case caused ADA Herbert to question the motives and credibility of the complainant. 8. Based on the above information, the District Attorney’s Office believed that the witness’s credibility was impaired to the extent that they could not sustain an indictment based on her anticipated testimony and the surrounding facts and circumstances of the complaint and subsequent arrest of Mr. Morocho-Sumba. 9. On February 5, 2020, ADA Herbert modified the offer in the instant matter and will now offer Mr. Morocho-Sumba the opportunity to plead to one count of Assault in the Third Degree (Reckless) under PL §120.00(2) with a promised sentence of six months in the Westchester County Jail. 10. Mr. Morocho-Sumba has been in Immigration and Customs Enforcement custody since late December of 2019 and the People have failed to produce him at any court proceeding since then. Due to their failure to produce him from Federal custody, no superseding misdemeanor information has officially been filed and Mr. Morocho-Sumba has not been arraigned on the same. Mr. Morocho-Sumba must be present to be arraigned on the new accusatory instrument. 11. Due to the fact that Mr. Morocho-Sumba has never been produced from Federal custody, he has not had the above offer conveyed to him nor the opportunity to avail himself of the offer.
If there is any other information that I can provide with respect to this case, please do not hesitate to contact me.

Case 1:20-cv-02472-AJN Document 28 Filed 03/27/20 Page 8 of 8 Sincerely,
Katie D. Wasserman Senior Associate Counsel

 
 Case 1:20-cv-02472-AJN Document 35 Filed 04/01/20 Page 1 of 4

UNITED STATES DISTRICT COURT

4/1/20

SOUTHERN DISTRICT OF NEW YORK

Josefina Coronel, et al., Petitioners-Plaintiffs,
–v– Thomas Decker, et al.,
Respondents-Defendants.

20-cv-2472 (AJN) ORDER

ALISON J. NATHAN, District Judge: On March 30, 2020, following the Court’s grant of a temporary restraining order
in the above-captioned matter, Dkt. No. 26, Petitioners filed an Amended Petition joining four new Petitioners: Ananda Rajapaksha, Fedor Bondarenko, Cristian Arriaga Reyes, and Alvaro Negrette Mejia, see generally Dkt. No. 29. Respondents subsequently filed a letter requesting that the Court resolve threshold questions of severance and any related issues of joinder and amendment prior to proceeding to the merits of the claims of Petitioners Rajapaksha, Bondarenko, Arriaga Reyes, and Negrette Mejia. See Dkt. No. 30 at 1–2. The Court ordered the parties to brief these threshold issues on an expedited basis. See Dkt. No. 31. Having considered the parties’ briefing on these issues, see Dkt. Nos. 32, 34, the Court exercises its discretion to prohibit joinder of Petitioners Rajapaksha, Bondarenko, Arriaga Reyes, and Negrette Mejia under the circumstances presented.
28 U.S.C. § 2242 provides that habeas petitions “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” While
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Rule 15(a) of the Federal Rules of Civil Procedure “generally governs the amendment of complaints” or habeas petitions, where, as here, proposed amendments add new parties, “Rule 21 governs.” Momentum Luggage & Leisure Bags v. Jansport, Inc., No. 00-cv7909 (DLC), 2001 WL 58000, at *1 (S.D.N.Y. Jan. 23, 2001); see also Kaminsky v. Abrams, 41 F.R.D. 168, 170 (S.D.N.Y. 1966) (“It has been held that the specific provisions of Rule 21 govern over the general provisions of Rule 15, and that an amendment changing parties requires leave of Court even though made at a time when under Rule 15 amendment may be made as of course.”). But see Washington v. New York City Board of Estimate, 709 F.2d 792, 795 (2d Cir. 1983) (analyzing motion to add new parties under Rule 15(a) when defendant had not answered, and not addressing Rule 21).
Pursuant to Rule 21 of the Federal Rules of Civil Procedure, the Court “may at any time, on just terms, add or drop a party.” Though “the same standard of liberality afforded to motions to amend pleadings under Rule 15” applies under Rule 21, Momentum Luggage, 2001 WL 58000, at *2 (quoting Soler v. G & U, Inc., 86 F.R.D. 524, 527–28 (S.D.N.Y. 1980)), in adding or eliminating parties, courts also specifically consider “judicial economy and their ability to manage each particular case, as well as how the amendment would affect the use of judicial resources, the impact the amendment would have on the judicial system, and the impact the amendment would have on each of the parties already named in the action,” id. (describing the need for courts to maintain control over whether parties are added or dropped from a litigation due to the problems of judicial administration that the addition and elimination of parties present).
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For all of the reasons stated in Respondents’ briefing on this issue, the Court finds that the joinder of Petitioners Rajapaksha, Bondarenko, Arriaga Reyes, and Negrette Mejia would create the appearance of “forum shopping.” See Dkt. No. 34 at 6–8. Accordingly, the Court will not allow their joinder by amendment here. The Court hereby orders that the First Amended Petition, Dkt. No. 29, be struck from the docket with leave for Petitioners Rajapaksha, Bondarenko, Arriaga Reyes, and Negrette Mejia to immediately refile their papers with the Clerk of Court for random assignment. The Court takes no position on whether Petitioners Rajapaksha, Bondarenko, Arriaga Reyes, and Negrette Mejia should file individual habeas petitions or proceed via a single petition. The Order to Show Cause for the issuance of a temporary restraining order for the release of these Petitioners, Dkt. No. 33, is accordingly denied with leave to refile following random assignment.
With respect to the original Petitioners, the Court will exercise its discretion to allow—at this time—the continued joinder of those individuals since there is no comparable concern of an appearance of forum shopping.1 Depending on the course of the litigation, however, the Court may reconsider the propriety of severance. Accordingly, Respondents’ motion to sever the original Petitioners is hereby denied without prejudice. See Dkt. No. 22 at 6–9.
1 The original habeas petition, Dkt. No. 1, was brought by seven petitioners: Juan Morocho Sumba, Josefina Coronel, Ramon Garcia Ponce, Florencio Moristica, Jose Madrid, Jose Otero, and Miguel Miranda. After the petition was filed, ICE released Petitioners Coronel, Ponce, and Moristica. The Court granted the motion for a temporary restraining order releasing Petitioners Morocho Sumba, Madrid, Otero, and Miranda and deferred decision as to whether the habeas petition is moot as to the three Petitioners who had already been released from ICE custody. See Dkt. No. 26. Respondents seek to sever the petitions of all seven original Petitioners. See Dkt. No. 34 at 1 (arguing that the Court should “sever the present action into eleven separate habeas proceedings,” comprising the claims of the seven original Petitioners, as well as those of Petitioners Rajapaksha, Bondarenko, Arriaga Reyes, and Negrette Mejia).
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The Clerk of Court is directed to strike the First Amended Petition filed at Dkt. No. 29. The Petitioners Rajapaksha, Bondarenko, Arriaga Reyes, and Negrette Mejia may immediately refile with the Clerk of Court for random assignment. The Order to Show Cause for a Temporary Restraining Order with respect to the release of these Petitioners, Dkt. No. 33, is denied with leave to refile following random assignment of their habeas petition(s).
SO ORDERED.

Dated: March ___3_1___, 2020 New York, New York

____________________________________ ALISON J. NATHAN
United States District Judge

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