U.S. DISTRICT COURT U.S. District Court, Western District of New York (Buffalo)
CIVIL DOCKET FOR CASE #: 1:20-cv-00361-LJV

Jones et al v. Wolf et al Assigned to: Hon. Lawrence J. Vilardo Related Case: 1:20-cv-00584-LJV Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 03/25/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner
Vernon Jones TERMINATED: 09/01/2020

represented by Grace Ellen Zaiman Journeys End Refugee Services 87 North Clinton Avenue Rochester, NY 14604 716-480-7889 Fax: 716-882-4977 Email: gezaiman@gmail.com ATTORNEY TO BE NOTICED

John H. Peng Prisoners' Legal Services of New York (Albany) 41 State Street Suite M112 Albany, NY 12207 518-694-8669 Fax: 518-694-4281 Email: jpeng@plsny.org ATTORNEY TO BE NOTICED

Joseph David Moravec 3103 Bunker Hill Road Mount Rainier, MD 20712 309-824-4861 Email: moravecj13@gmail.com ATTORNEY TO BE NOTICED

Nicholas John Phillips Prisoners' Legal Services of New York 14 Lafayette Square Suite 510

Petitioner Marckindal Jules

Buffalo, NY 14203 9173707162 Email: np@phillipspllc.com TERMINATED: 07/27/2020
Robert F. Graziano The Law Office of Robert F. Graziano 50 Fountain Plaza Suite 1455 Buffalo, NY 14202 716-575-7716 Fax: 888-343-1833 Email: bob@bobgraziano.com ATTORNEY TO BE NOTICED
Siana McLean Muscato & Shatkin, LLP 1520 Pine Avenue Niagara Falls, NY 14301 716-842-0550 ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean

Petitioner Lyxon Chery
Petitioner Aldwin Brathwaite

(See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020

Petitioner Patrick Maduabuchi Nwankwo TERMINATED: 05/01/2020
Petitioner Dween Alfarel Blackman

Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED

Petitioner Ricardo Quintanilla-Mejia
Petitioner Bright Idada Falodun TERMINATED: 09/01/2020

Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address)

Petitioner Philip Donga TERMINATED: 09/01/2020
Petitioner

ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED

Gamdur Narain TERMINATED: 09/01/2020
Petitioner Eric C Commissiong TERMINATED: 05/19/2020

represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean

Petitioner Md. Abu Musa Bhuyan
Petitioner Ibrahima Sory Sow

(See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020

Petitioner Jubril Adelakoun TERMINATED: 05/01/2020
Petitioner Juan Carlos Lainez Mejia TERMINATED: 05/01/2020

Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED

Petitioner Croswell Wilson TERMINATED: 09/01/2020
Petitioner Jonathan Espinal-Polanco TERMINATED: 09/01/2020

Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address)

Petitioner Marvens Thomas TERMINATED: 09/01/2020
Petitioner

ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED

Shantadewie Rahmee TERMINATED: 05/01/2020
Petitioner Danilo Concepcion

represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean

Petitioner Oscar Salcedo TERMINATED: 09/01/2020
Petitioner Curry Wendell Forbes

(See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020

Petitioner Necati Harsit TERMINATED: 09/01/2020
Petitioner Shane Ramsundar

Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by Grace Ellen Zaiman (See above for address) ATTORNEY TO BE NOTICED
John H. Peng (See above for address) ATTORNEY TO BE NOTICED
Joseph David Moravec (See above for address) ATTORNEY TO BE NOTICED
Nicholas John Phillips (See above for address) TERMINATED: 07/27/2020
Robert F. Graziano (See above for address) ATTORNEY TO BE NOTICED
Siana McLean (See above for address) ATTORNEY TO BE NOTICED
represented by John H. Peng (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert F. Graziano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Respondent Chad Wolf in his official capacity as Acting Secretary, U.S. Department of Homeland Security
Respondent Thomas E. Feeley in his official capacity as Field Office Director, Buffalo Field Office, U.S. Immigration & Customs Enforcement
Respondent Jeffrey Searls in his official capacity as Administrator, Buffalo Federal Detention Facility

represented by United States Attorney's Office (eservice) Western District of New York Email: USANYW-ImmigrationHabeas@usdoj.gov TERMINATED: 04/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam A. Khalil U.S. Attorney's Office 100 State Street Rochester, NY 14614 585-399-3979 Fax: 585-399-3936 Email: adam.khalil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by United States Attorney's Office (eservice) (See above for address) TERMINATED: 04/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam A. Khalil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by United States Attorney's Office (eservice) (See above for address) TERMINATED: 04/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam A. Khalil

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/25/2020
03/26/2020 03/26/2020
03/26/2020

# Docket Text
1 Emergency PETITION for Writ of Habeas Corpus and Complaint for Injunctive Relief ( Filing fee $ 5 receipt number 02093779816.), filed by Eric C Commissiong, Oscar Salcedo, Ricardo Quintanilla-Mejia, Marckindal Jules, Jonathan Espinal-Polanco, Curry Wendell Forbes, Vernon Jones, Marvens Thomas, Croswell Wilson, Ibrahima Sory Sow, Necati Harsit, Dween Alfarel Blackman, Lyxon Chery, Philip Donga, Md. Abu Musa Bhuyan, Jubril Adelakoun, Danilo Concepcion, Juan Carlos Lainez Mejia, Bright Idada Falodun, Aldwin Brathwaite, Shantadewie Rahmee, Gamdur Narain, Patrick Maduabuchi Nwankwo. (Attachments: # 1 Civil Cover Sheet Civil Cover Sheet)(Moravec, Joseph) (Entered: 03/25/2020)
2 CONTINUATION OF EXHIBITS to 1 Petition for Writ of Habeas Corpus,, Exhibits in Support of Petition and Complaint. (Moravec, Joseph) (Entered: 03/26/2020)
3 DECLARATION signed by Robert B. Greifinger, MD filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo QuintanillaMejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Exhibit Curriculum Vitae, # 2 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 03/26/2020)
4 DECLARATION signed by Joe Goldenson, M.D. filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Exhibit

03/26/2020 03/26/2020 03/26/2020 03/26/2020

Curriculum Vitae, # 2 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 03/26/2020)
5 DECLARATION signed by Marc F. Stern, M.D. filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Exhibit Curriculum Vitae, # 2 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 03/26/2020)
6 DECLARATION signed by Andrew Lorenzen-Strait filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo QuintanillaMejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Exhibit Curriculum Vitae and Supporting Documents, # 2 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 03/26/2020)
7 DECLARATION signed by Jonathan Louis Golob, M.D., Ph.D. filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Exhibit Curriculum Vitae, # 2 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 03/26/2020)
8 MOTION for Temporary Restraining Order by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez

03/26/2020
03/26/2020 03/26/2020 03/26/2020

Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Attachments: # 1 Text of Proposed Order Proposed Order)(Moravec, Joseph) (Entered: 03/26/2020)
9 MEMORANDUM IN SUPPORT re 8 MOTION for Temporary Restraining Order byJubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Attachments: # 1 Exhibit Letter from Scott A. Allen, M.D. and Josiah Rich, M.D. to Congress re: DHS COVID-19 Response, # 2 Exhibit New Jersey Order Releasing County Jail Inmates)(Moravec, Joseph) (Entered: 03/26/2020)
Case assigned to Hon. Lawrence J. Vilardo. Notification to Chambers of on-line civil case opening. (CGJ) (Entered: 03/26/2020)
Notice of Availability of Magistrate Judge: A United States Magistrate of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form (AO-85) is available for download at http://www.uscourts.gov/services-forms/forms. (CGJ) (Entered: 03/26/2020)
Order 10
IT IS HEREBY ORDERED that on or before March 27, 2020, the petitioners shall file and serve a memorandum of law explaining, for each petitioner, (1) his or her detention status (length, statutory basis, and prior bond hearings); (2) medical evidence, including opinions from healthcare professionals, supporting his or her claim of being at "particularly grave risk of developing serious complications or death if [he or she] contract[s] COVID-19"; and (3) proposed terms and conditions of release, including any supervision; and it is further

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

ORDERED that on or before March 30, 2020, the respondents shall file and serve an answer responding to the allegations in the petition ; and it is further
ORDERED that on or before March 30, 2020, the respondents shall file and serve, in addition to their answer, a memorandum of law addressing (1) each petitioner's detention status (length, statutory basis, prior bond hearings, efforts to effect removal, and the likelihood of removal in the reasonably foreseeable future, Zadvydas v. Davis, 533 U.S. 678, 700-01 (2001)); (2) each petitioner's claim of being at "particularly grave risk of developing serious complications or death if [he or she] contract[s] COVID19;" (3) the conditions of confinement at Batavia, including measures being taken to limit the risks posed by COVID-19; and (4) each petitioner's proposed terms and conditions of supervised release; and it is further
ORDERED that on or before March 30, 2020, instead of their answer, the respondents may file a motion to dismiss the petition, accompanied by appropriate exhibits demonstrating that an answer to the petition is unnecessary; and it is further
ORDERED that the parties shall appear by telephone for oral argument on March 31, 2020, at 9:00 AM;
Signed by Hon. Lawrence J. Vilardo on 3/26/20. (Attachments:
# 1 Petition)(CEH)
-CLERK TO FOLLOW UP- (Entered: 03/26/2020)
11 NOTICE of Appearance by Adam A. Khalil on behalf of Thomas E. Feeley, Jeffrey Searls, Chad Wolf (Khalil, Adam) (Entered: 03/26/2020)
E-Filing Notification: Missing case caption and case number. For future reference filings should be filed in proper pleading format or file as is, as attachments to the 1 Petition. No Action required. RE 3 DECLARATION through 7 DECLARATION. (TF) (Entered: 03/27/2020)
12 Letter filed requesting extension of page limit. (Khalil, Adam) (Entered: 03/27/2020)

03/27/2020
03/27/2020
03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020

13 MOTION for Extension of Time to File Response/Reply as to 10
Order,,,,,,,,, Order to Answer,,,,,,,,, Add and Terminate Attorneys,,,,,,,,, Set Deadlines/Hearings,,,,,,,, To extend filing deadline by three hours by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Attachments: # 1 Text of Proposed Order Proposed order)(Moravec, Joseph) (Entered: 03/27/2020)
14 DECLARATION signed by Joe Goldenson, M.D. filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson Supplemental Declaration on Petitioners' Risks from COVID-19. (Moravec, Joseph) (Entered: 03/27/2020)
15 CONTINUATION OF EXHIBITS in Support of Petition for Writ of Habeas Corpus and Complaint for Injunctive Relief. (Moravec, Joseph) (Entered: 03/27/2020)
16 MEMORANDUM/BRIEF in Support of Vernon Jones by Vernon Jones. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Vernon Jones)(Moravec, Joseph) (Entered: 03/27/2020)
17 MEMORANDUM/BRIEF in Support of Dween Blackman by Dween Alfarel Blackman. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Dween Blackman)(Moravec, Joseph) (Entered: 03/27/2020)
18 MEMORANDUM/BRIEF in Support of Bright Falodun by Bright Idada Falodun. (Attachments: # 1 Exhibit Exhibits in Support of Bright Falodun)(Moravec, Joseph) (Entered: 03/27/2020)
19 MEMORANDUM/BRIEF in Support of Marckindal Jules by Marckindal Jules. (Attachments: # 1 Exhibit Exhibits in Support of

03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020 03/27/2020
03/27/2020 03/28/2020

Petitioner Marckindal Jules)(Moravec, Joseph) (Entered: 03/27/2020)
20 MEMORANDUM/BRIEF in Support of Lyxon Chery by Lyxon Chery. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Lyxon Chery)(Moravec, Joseph) (Entered: 03/27/2020)
21 MEMORANDUM/BRIEF in Support of Md. Abu Musa Bhuyan by Md. Abu Musa Bhuyan. (Moravec, Joseph) (Entered: 03/27/2020)
22 MEMORANDUM/BRIEF in Support of Philip Donga by Philip Donga. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Philip Donga)(Moravec, Joseph) (Entered: 03/27/2020)
23 MEMORANDUM/BRIEF in Support of Gamdur Narain by Gamdur Narain. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Gamdur Narain)(Moravec, Joseph) (Entered: 03/27/2020)
24 MEMORANDUM/BRIEF in Support of Eric Commissiong by Eric C Commissiong. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Eric Commissiong)(Moravec, Joseph) (Entered: 03/27/2020)
25 MEMORANDUM/BRIEF in Support of Aldwin Brathwaite by Aldwin Brathwaite. (Attachments: # 1 Declaration Declaration of Joseph Moravec, # 2 Exhibit Exhibits in Support of Petitioner Aldwin Brathwaite)(Moravec, Joseph) (Entered: 03/27/2020)
26 MEMORANDUM/BRIEF in Support of Patrick Nwankwo by Patrick Maduabuchi Nwankwo. (Attachments: # 1 Declaration Declaration of Joseph Moravec, # 2 Exhibit Exhibits in Support of Petitioner Patrick Nwankwo)(Moravec, Joseph) (Entered: 03/27/2020)
27 MEMORANDUM/BRIEF in Support of Ricardo QuintanillaMejia by Ricardo Quintanilla-Mejia. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Ricardo QuintanillaMejia)(Moravec, Joseph) (Entered: 03/28/2020)
28 MEMORANDUM/BRIEF in Support of Ibrahima Sory Sow by Ibrahima Sory Sow. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Ibrahima Sory Sow)(Moravec, Joseph) (Entered: 03/28/2020)

03/28/2020 03/28/2020
03/28/2020 03/28/2020 03/28/2020 03/28/2020 03/28/2020 03/28/2020 03/28/2020 03/28/2020

29 MEMORANDUM/BRIEF in Support of Jubril Adelakoun by Jubril Adelakoun. (Attachments: # 1 Exhibit Exhibits in Support of Jubril Adelakoun)(Moravec, Joseph) (Entered: 03/28/2020)
30 MEMORANDUM/BRIEF in Support of Juan Carlos Lainez Mejia by Juan Carlos Lainez Mejia. (Attachments: # 1 Declaration Declaration of Elizabeth Rieser-Murphy, # 2 Exhibit Exhibits in Support of Petitioner Juan Carlos Lainez Mejia)(Moravec, Joseph) (Entered: 03/28/2020)
31 MEMORANDUM/BRIEF in Support of Necati Harsit by Necati Harsit. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Necati Harsit)(Moravec, Joseph) (Entered: 03/28/2020)
32 MEMORANDUM/BRIEF in Support of Oscar Salcedo by Oscar Salcedo. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Oscar Salcedo)(Moravec, Joseph) (Entered: 03/28/2020)
33 MEMORANDUM/BRIEF in Support of Curry Wendell Forbes by Curry Wendell Forbes. (Attachments: # 1 Exhibit Exhibits in Support of Curry Wendell Forbes)(Moravec, Joseph) (Entered: 03/28/2020)
34 MEMORANDUM/BRIEF in Support of Croswell Wilson by Croswell Wilson. (Attachments: # 1 Declaration Declaration of Jillian Nowak, # 2 Exhibit Exhibits in Support of Petitioner Croswell Wilson)(Moravec, Joseph) (Entered: 03/28/2020)
35 MEMORANDUM/BRIEF in Support of Jonathan EspinalPolanco by Jonathan Espinal-Polanco. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Jonathan EspinalPolanco)(Moravec, Joseph) (Entered: 03/28/2020)
36 MEMORANDUM/BRIEF in Support of Danilo Concepcion by Danilo Concepcion. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Danilo Concepcion)(Moravec, Joseph) (Entered: 03/28/2020)
37 MEMORANDUM/BRIEF in Support of Marvens Thomas by Marvens Thomas. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Marvens Thomas)(Moravec, Joseph) (Entered: 03/28/2020)
38 MEMORANDUM/BRIEF in Support of Shantadewie Rahmee by Shantadewie Rahmee. (Attachments: # 1 Exhibit Exhibits in Support of Petitioner Shantadewie Rahmee)(Moravec, Joseph) (Entered: 03/28/2020)

03/28/2020 03/28/2020 03/30/2020 03/30/2020
03/31/2020
04/02/2020

39 ORDER granting 13 Motion for Extension of Time to File Memoranda of Law. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 3/28/2020. (CEH) (Entered: 03/28/2020)

40 TEXT ORDER granting the respondents' unopposed motion for a leave to file a memorandum of law in excess of 25 pages, Docket Item 12 . SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 02/28/2020. (CEH) (Entered: 03/28/2020)

41 TEXT ORDER: Writ Hearing rescheduled for 3/31/2020 at 03:00 PM in US Courthouse, 2 Niagara Square, Buffalo, NY 142023350 before Hon. Lawrence J. Vilardo. Signed by Hon. Lawrence J. Vilardo on 3/30/2020. (CEH) (Entered: 03/30/2020)

42 Respondents' RESPONSE to 1 Petition for Writ of Habeas Corpus,, and Motion for a TRO by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Attachments: # 1 Declaration of Dr. Montalvo, # 2 Declaration of SDDO DeLong, # 3 Declaration Katie Schreiver, # 4 Declaration OIC Searls, # 5 Memorandum of Law in Opposition, # 6 Sacal-Micha Decision (SDTX), # 7 Francisco Decision (DNJ))(Khalil, Adam) (Entered: 03/30/2020)

43 Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Oral Argument held re: MOTION for Temporary Restraining Order held 3/31/2020. Prior to argument, Court ordered that this proceeding is not to be recorded, or taped in any way. If somebody does record it, they will be found in contempt of court. Court reserves decision. Appearances by teleconference. For petitioners: Joseph D. Moravec, Nicholas J. Phillips, Robert F. Graziano, Grace E. Zaiman, and Siana McLean. For respondent: AUSA Adam A. Khalil. (Court Reporter Ann M. Sawyer.) (CMD) (Entered: 04/01/2020)

ORDER granting in part and denying in part the petitioners'

44

motion for a temporary restraining order, Docket Item 8 . The

respondents shall submit a detailed plan to the Court by 5:00

p.m. on April 3, 2020, demonstrating how they will provide those

petitioners who are vulnerable individuals, as defined by the

Centers for Disease Control and Prevention ("CDC"), with a living

situation that facilitates "social distancing." No later than 9:00

a.m. on April 6, 2020, the respondents shall report to the

Court as to whether any or all of the steps outlined in the plan

have been taken and, if so, which ones. They also shall identify for

which petitioners the measures have been taken and provide a

brief explanation why any petitioner does not meet the CDC's

04/03/2020 04/03/2020
04/04/2020 04/06/2020 04/06/2020 04/07/2020

high-risk criteria. IT IS SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 04/02/2020. (CEH)
-CLERK TO FOLLOW UP- (Entered: 04/02/2020)
45 DECLARATION signed by Captain Abelardo Montalvo, M.D.
re 44 Order on Motion for TRO,,, filed by Jeffrey Searls, Thomas E. Feeley, Chad Wolf filed by Jeffrey Searls, Thomas E. Feeley, Chad Wolf. (Khalil, Adam) (Entered: 04/03/2020)
46 TEXT ORDER: In their April 06, 2020 report to this Court, the respondents shall include, in addition to the information discussed
in this Court's April 02, 2020 order, Docket Item 44 , an explanation of the rationale--medical, logistical, or otherwise--for placing petitioners Nwankwo and Adelakun in communal dorms, rather than in their own cells. The petitioners shall have until 9:00 am on April 07, 2020 to brief the Court on their position as to whether the respondents' efforts have remedied the constitutional violations identified in this Court's April 02, 2020 decision and
order, Docket Item 44 . SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 04/03/2020. (CEH) (Entered: 04/03/2020)
47 DECLARATION signed by OIC Jeffrey Searls re 46 Order,, 44
Order on Motion for TRO,,, filed by Thomas E. Feeley, Jeffrey Searls, Chad Wolf . (Khalil, Adam) (Entered: 04/04/2020)
48 Letter filed re: Petitioner Chery. (Khalil, Adam) (Entered: 04/06/2020)
49 ORDER: Writ Hearing set for 04/07/2020 at 03:00 PM by telephone before Hon. Lawrence J. Vilardo. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 04/20/2020. (CEH) (Entered: 04/06/2020)
50 DECLARATION signed by Marc Stern, M.D. filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow,

04/07/2020 04/07/2020 04/07/2020
04/07/2020

Marvens Thomas, Croswell Wilson . (Moravec, Joseph) (Entered: 04/07/2020)
51 DECLARATION signed by Robert Greifinger, M.D. filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo QuintanillaMejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Moravec, Joseph) (Entered: 04/07/2020)

52 CONTINUATION OF EXHIBITS re: Additional Exhibits in Support of Petition and Motion for TRO. (Moravec, Joseph) (Entered: 04/07/2020)

53 MEMORANDUM/BRIEF re 47 Declaration re: in Opposition to Respondents' Proposed Plan to Cure Violations of Petitioners' Constitutional Rights by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Moravec, Joseph) (Entered: 04/07/2020)

ORDERED that on or before April 8, 2020, at 5:00 p.m., the

54

petitioners shall file and serve an affidavit from Captain Montalvo

or another qualified individual (1) opining whether individuals

with epilepsy and/or those who are over 50 years of age and

confined to detention facilities similar to BFDF meet the CDC's

criteria for vulnerable individuals and explaining the reasons for

that conclusion, (2) detailing the types and quantities of personal

protective equipment ("PPE") available to the vulnerable

petitioners, and (3) detailing the types of PPE available to staff

who interact with the vulnerable petitioners; and it is further

ORDERED that on or before April 8, 2020, at 5:00 p.m., the petitioners shall either (a) file and serve an affidavit from respondent Searls or another qualified individual confirming that petitioners Concepcion, Falodun, Sow, Adelakun, and Nwankwo have been placed in individual cells and that all vulnerable

04/07/2020 04/08/2020

petitioners have been allowed to practice the "social distancing" measures identified in Captain Montalvo's April 3, 2020 affidavit; or (b) show cause why this Court should not order the petitioners to immediately reduce the detainee population to a level that would facilitate such actions; and it is further
ORDERED that on or before April 8, 2020, at 5:00 p.m., the petitioners also may submit additional affidavits to this Court supporting their claims that BFDF is unable to comply with this Court's orders in this matter; and it is further
ORDERED that the parties shall appear by telephone for argument on April 9, 2020, at 10:00 a.m.
SO ORDERED.
Signed by Hon. Lawrence J. Vilardo on 04/07/2020. (CEH) (Entered: 04/07/2020)
55 Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Oral Argument held on 4/7/2020. Court directed parties to file additional submissions, as specified on the record, by 5:00 p.m. on 4/8/2020. Further oral argument by teleconference scheduled for 4/9/2020 at 10:00 AM in U.S. Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350. Court ordered that this proceeding is not to be recorded, or taped in any way. If someone does record it, they will be found in contempt of court. Appearances by teleconference. For petitioners: Joseph D. Moravec, Nicholas J. Phillips, Robert F. Graziano, Grace E. Zaiman, and Siana McLean. For respondent: AUSA Adam A. Khalil. (Court Reporter Ann M. Sawyer.) (CMD) Modified to change date of hearing on 4/9/2020 (CMD). (Entered: 04/08/2020)
56 MOTION for Extension of Time to File Response/Reply as to 54
Order,,,,,,, Set Hearings,,,,,, re: 5 Hour Extension by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson.(Moravec, Joseph) (Entered: 04/08/2020)

04/08/2020 04/08/2020 04/08/2020 04/08/2020
04/08/2020
04/08/2020

57 DECLARATION signed by CAPTAIN ABELARDO
MONTALVO, M.D. re 54 Order,,,,,,, Set Hearings,,,,,, filed by Thomas E. Feeley, Jeffrey Searls, Chad Wolf . (Khalil, Adam) (Entered: 04/08/2020)
58 TEXT ORDER: The petitioners' motion for an extension of time, Docket Item 56 , is GRANTED. The petitioners and respondents shall file their respective submissions on or before 04/08/2020 at 11:59 PM. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 04/08/2020. (CEH) (Entered: 04/08/2020)
59 DECLARATION signed by Jeffrey Searls re 54 Order,,,,,,, Set Hearings,,,,,, filed by Thomas E. Feeley, Jeffrey Searls, Chad Wolf . (Khalil, Adam) (Entered: 04/08/2020)
60 DECLARATION signed by Joseph Moravec filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Exhibit Confirmation of Nwankwo Release, # 2 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/08/2020)
61 DECLARATION signed by Jennifer Connor filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/08/2020)
62 AFFIDAVIT of Cristian Aneury Diaz Arvelo (confirmed by phone by Siana McLean, Esq.) by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes,

04/08/2020 04/08/2020
04/08/2020
04/08/2020 04/08/2020

Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/08/2020)
63 AFFIDAVIT of Petitioner Jubril Adelakoun re: conditions at BFDF and release by Jubril Adelakoun. (Attachments: # 1 Exhibit Confirmation of Adelakoun Release, # 2 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/08/2020)
64 AFFIRMATION signed by Robert F. Graziano filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/08/2020)
65 AFFIRMATION signed by Brenda A. Cisneros Vilchis filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo QuintanillaMejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/08/2020)
66 DECLARATION signed by Petitioner Croswell Wilson filed by Croswell Wilson (confirmed by phone by Jillian Nowak, Esq.) re:. (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/08/2020)
67 DECLARATION signed by Yared Tedla (confirmed by Blanca Owen, Esq.) filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon

04/08/2020
04/08/2020 04/08/2020 04/09/2020 04/09/2020 04/09/2020

Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/08/2020)
68 AFFIRMATION signed by Margaret R. Lindstrom filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/08/2020)

69 Letter filed re: Epilepsy and COVID-19. (Attachments: # 1 Exhibit CDC Mitigation Recommendation for New Rochelle, New York, # 2 Exhibit CDC Community Mitigation Strategy, # 3 Exhibit New York State Office for People with Developmental Disabilities Guidance on COVID-19)(Moravec, Joseph) (Entered: 04/08/2020)

70 CONTINUATION OF EXHIBITS Additional Supporting Exhibits re 1 Emergency PETITION for Writ of Habeas Corpus and Complaint for Injunctive Relief. (Moravec, Joseph) Modified on 4/9/2020 (TF). (Entered: 04/08/2020)

E-Filing Notification: For future reference link document to entry RE 70 CONTINUATION OF EXHIBITS,Addi tional Supporting Exhibits to 1 Emergency PETITION for Writ of Habeas Corpus and Complaint for Injunctive Relief. Clerks Office to modify entry. No action required. 1 (TF) (Entered: 04/09/2020)

DECISION AND ORDER re: motion for a temporary restraining

71

order, Docket Item 8 . Signed by Hon. Lawrence J. Vilardo on

04/09/2020. (CEH)

-CLERK TO FOLLOW UP- (Entered: 04/09/2020)
72 Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Oral Argument re: 8 Motion for Temporary Restraining Order held on 4/9/2020. Prior to argument, Court ordered that the proceeding is not to be recorded, or taped in any way. If someone does record it, they will be found in contempt of court. Bench

04/10/2020 04/14/2020
04/20/2020 04/24/2020
04/24/2020

statement issued denying TRO for Non-CDC-vulnerable detainees, and granting in part the TRO for CDC-vulnerable detainees, as detailed on the record. A written decision and order will be issued by the Court. Deadline to file motion to convert TRO to a Preliminary Injunction is 4/24/2020. Appearances by teleconference. For petitioners: Joseph D. Moravec, Nicholas J. Phillips, Robert F. Graziano, Grace E. Zaiman, and Siana McLean. For respondent: AUSA Adam A. Khalil. (Court Reporter Ann M. Sawyer.) (CMD) (Entered: 04/09/2020)
Copy of Doc. No. 71 Decision and Order mailed to attorney Siana McLean. (JLV) (Entered: 04/10/2020)
73 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3/31/2020, before Judge Hon. Lawrence J. Vilardo. Court Reporter/Transcriber Ann M. Sawyer, Contact Info Ann_Sawyer@nywd.uscourts.gov. 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 5/5/2020. Redacted Transcript Deadline set for 5/15/2020. Release of Transcript Restriction set for 7/13/2020. (CGJ) (Entered: 04/14/2020)
74 Letter filed re update to conditions at BFDF. (Khalil, Adam) (Entered: 04/20/2020)
75 DECLARATION signed by Aldwin Brathwaite filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/24/2020)
76 DECLARATION signed by Gamdar Narain filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain,

04/24/2020 04/24/2020 04/24/2020 04/24/2020

Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/24/2020)
77 DECLARATION signed by Philip Donga filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/24/2020)
78 DECLARATION signed by Eric C. Commissiong filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/24/2020)
79 AFFIDAVIT of Cristian Aneury Diaz Arvelo by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/24/2020)
80 DECLARATION signed by Joseph Moravec filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan

04/24/2020 04/24/2020 04/24/2020 04/24/2020

Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Declaration Declaration of Daniel E. Jackson Relaying Sefatullah Ahmadzai's Statement, # 2 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/24/2020)
81 AFFIDAVIT of Memphis Delgado Morgan by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/24/2020)
82 DECLARATION signed by Vania C. Mendoza Pimentel filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo QuintanillaMejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/24/2020)
83 NOTICE of Appearance by John H. Peng on behalf of Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson (Peng, John) (Entered: 04/24/2020)
84 MEMORANDUM IN OPPOSITION re 71 Decision and Order as to why an injunction should not issue by Thomas E.

04/24/2020 04/24/2020 04/24/2020 04/24/2020

Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 04/24/2020)
85 AFFIRMATION signed by Blanca A. Owen filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/24/2020)
86 ORDER: In light of the petitioners' substantial submissions and the government's opposition to entering a preliminary injunction, the Court finds good cause to extend the TRO, Docket Item 71
, until 05/01/2020. See Fed. R. Civ. P. 65(b)(2). The Court takes the parties' submissions under advisement and will schedule oral argument at a later time if necessary. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 04/24/2020. (CEH) (Entered: 04/24/2020)
87 AFFIRMATION signed by Margaret Lindstrom filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Exhibit Emails Concerning Petitioner Espinal-Polanco's Medical Treatment, # 2 Exhibit ICE Parole Denial, # 3 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/24/2020)
88 MEMORANDUM/BRIEF re 72 Oral Argument,,, in support of Preliminary Injunction by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick

04/27/2020 04/27/2020 04/29/2020
04/29/2020 04/30/2020

Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Attachments: # 1 Exhibit Combined Exhibits in Support of Preliminary Injunction)(Moravec, Joseph) (Entered: 04/24/2020)

DECISION & ORDER granting in part and denying in part motion

89

for a preliminary injunction; ordering status updates; and ordering

briefing on final habeas relief. Signed by Hon. Lawrence J.

Vilardo on 04/27/2020. (CEH) (Entered: 04/27/2020)

E-Filing Notification: Document missing signature. Action required: re-file document with proper signature re 82 DECLARATION signed by Vania C. Mendoza Pimentel. (TF) (Entered: 04/27/2020)

90 DECLARATION signed by Vania C. Mendoza Pimentel re EFiling Notification No Signature filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson . (Attachments: # 1 Certificate of Service Certificate of Service)(Moravec, Joseph) (Entered: 04/29/2020)

91 STATUS REPORT as to conditions at BFDF with photographic exhibits by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Khalil, Adam) (Entered: 04/29/2020)

92 TEXT ORDER: The respondents have released four of the petitioners to this action--Jubril Adelakun, Juan Carlos Lainez Mejia, Patrick Maduabuchi Nwankwo, and Shantadewie Rahmee. See Docket Item 42 -5 at 1 n.1; Docket Item 59 at 3; Docket Item 91 at 2 n.1. "Under Article III of the Constitution, when a case becomes moot, the federal courts lack subject matter jurisdiction over the action." Leybinsky v. U.S. Immigration and Customs Enforcement, 553 F. App'x 108, 109 (2d Cir. 2014) (summary order) (quoting Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013)). "Under 28 U.S.C. § 2241, the habeas statute under which [the] petitioner[s] challenged [their] detention, [courts] retain jurisdiction so long as the petitioner[s

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

are] 'in custody.'" Pierrilus v. U.S. Immigration & Customs Enforcement, 293 F. App'x 78, 79 (2d Cir. 2008) (summary order). Because Adelakun, Lainez Mejia, Nwankwo, and Rahmee have been released from "ICE custody, the[ir] petition[s] ha[ve] been rendered moot divesting the Court of subject matter jurisdiction." Diop v. Sessions, 2019 WL 1894387, at *2 (S.D.N.Y. Mar. 20, 2019). Accordingly, Adelakun's, Lainez Mejia's, Nwankwo's, and Rahmee's petitions are dismissed as moot and the Clerk of Court shall terminate them as parties to this action. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 04/30/2020.
-CLERK TO FOLLOW UP- (Entered: 04/30/2020)
93 TEXT ORDER. The respondents have provided this Court with a status update in which they assert that they are complying with the terms of the preliminary injunction. See Docket Item 91. But the Court also is in receipt of twenty affidavits and declarations from the petitioners and witnesses on their behalf disputing this assertion. See Docket Items 60-68, 75-82, 85, 87, 90. The Court therefore will hold an evidentiary hearing via videoconference to address the respondents' alleged noncompliance. Both parties shall appear, through counsel, for a status conference on Monday, May 4, 2020, at 2:00 p.m. to discuss the scheduling and logistics of this video hearing. Counsel for the government should be prepared to provide the Court with information about the videoconferencing capabilities at BFDF. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 4/30/2020. (CMD) (Entered: 04/30/2020)
PLEASE NOTE: The proceeding described herein will be held remotely. Public access to the proceeding scheduled for 5/4/2020 at 2:00 PM can be obtained by contacting Judge Vilardo's chambers at (716) 551-1621. (CMD) (Entered: 04/30/2020)
94 TEXT ORDER. The Court will hold an evidentiary hearing via Zoom for Government on May 13, 2020 at 10:00am. The petitioners shall file and serve an abbreviated statement of alleged violations of this Court's prior orders by May 6, 2020. The respondents shall file and serve an abbreviated counterstatement, along with their proposed witness list, by May 8, 2020. The petitioners shall file and serve their proposed witness list by May 11, 2020. The petitioners and respondents thereafter shall meet, confer, and submit a proposed hearing schedule that takes into consideration the witnesses' housing units (so as to limit disease spread) and language-access needs (so as to coordinate interpreters) by May 12, 2020. PLEASE NOTE: The proceeding

05/04/2020
05/05/2020 05/06/2020 05/06/2020

described herein will be held remotely. Public access to the proceeding can be obtained by contacting Judge Vilardo's chambers at (716) 551-1621. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 5/4/2020. (CMD) (Entered: 05/04/2020)
98 Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Status Conference held on 5/4/2020. Court ordered that this proceeding is not to be recorded, or taped in any way. If someone does record it, they will be found in contempt of court. Discussed logistics of holding an evidentiary hearing including video conference capabilities at Buffalo Federal Detention Facility (BFDF), witnesses, interpreters, and proposed hearing plan for witnesset. Petitioner to provide an abbreviated statement of alleged violations by 5/6/2020. Respondent to file witness list and response to alleged violations by 5/8/2020. Petitioners to file witness list by 5/11/2020. Video conference evidentiary hearing scheduled for 5/13/2020 at 10:00 AM by ZOOM for Government at BFDF. Appearances by teleconference: For petitioners: Joseph D. Moravec, Nicholas J. Phillips, Robert F. Graziano, and Grace E. Zaiman. For respondent: AUSA Adam A. Khalil. (Court Reporter Ann M. Sawyer.) (CMD) (Entered: 05/06/2020)
95 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of STATUS CONFERENCE held on 5/4/2020, before Judge Hon. Lawrence J. Vilardo. Court Reporter/Transcriber Ann M. Sawyer, Contact Info Ann_Sawyer@nywd.uscourts.gov. 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 5/26/2020. Redacted Transcript Deadline set for 6/5/2020. Release of Transcript Restriction set for 8/3/2020. (CGJ) (Entered: 05/05/2020)
96 STATEMENT OF FACTS re :Statement of Violations by Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Md. Abu Musa Bhuyan, Gamdur Narain, Ricardo Quintanilla-Mejia, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Moravec, Joseph) (Entered: 05/06/2020)
97 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 05/06/2020)

05/08/2020 05/08/2020 05/11/2020 05/12/2020 05/13/2020
05/13/2020 05/14/2020

99 Witness List by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 05/08/2020)
100 MEMORANDUM IN OPPOSITION re 96 Statement of Facts, by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 05/08/2020)
101 Witness List by Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Md. Abu Musa Bhuyan, Gamdur Narain, Ricardo QuintanillaMejia, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Moravec, Joseph) (Entered: 05/11/2020)
102 NOTICE of Appearance by Siana Jody McLean on behalf of All Plaintiffs (McLean, Siana) (Entered: 05/12/2020)
103 Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Evidentiary Hearing held on 5/13/2020. Court ordered that this proceeding is not to be recorded, or taped in any way. If someone does record it, they will be found in contempt of court. The following witnesses were sworn and testified: Petitioners' witnesses: Aldwin Brathwaite, Cristian Diaz Arvelo, Remy Antonio Espinoza, and Shane Ramsundar. Respondents' witness: Jeffrey Searls. Simultaneous submissions due by end of day on 5/14/2020 not to exceed 15 pages. In addition, submissions/declarations regarding (1) signage; (2) shower schedule, and (3) placing detainees who tested positive with high risk individuals in accordance with CDC criteria. Appearances by ZOOM for Government: For petitioners: Joseph D. Moravec (video conference), Robert F. Graziano (video conference), Nicholas J. Phillips (teleconference), Grace E. Zaiman (teleconference), and John H. Peng (teleconference). For respondent: AUSA Adam A. Khalil (video conference). (Court Reporter Ann M. Sawyer.) (CMD) (Entered: 05/13/2020)
104 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 05/13/2020)
105 MEMORANDUM/BRIEF re 103 Evidentiary Hearing,,,, re the Government's compliance with this Court's Orders by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Attachments: # 1 Declaration of Juan Flores, # 2 Declaration of Adam Vohwinkel)(Khalil, Adam) (Entered: 05/14/2020)

05/14/2020

106 TRIAL BRIEF re: Closing Argument by Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Md. Abu Musa Bhuyan, Gamdur Narain, Ricardo Quintanilla-Mejia, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Moravec, Joseph) (Entered: 05/14/2020)

05/18/2020

107 TEXT ORDER: The respondents have released petitioner Eric C. Commissiong. See Docket Item 104 at 2 n.1. "Under Article III of the Constitution, when a case becomes moot, the federal courts lack subject matter jurisdiction over the action." Leybinsky v. U.S. Immigration and Customs Enforcement, 553 Fed. App'x 108, 109 (2d Cir. 2014) (summary order) (quoting Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013)). "Under 28 U.S.C. § 2241, the habeas statute under which [Commissiong] challenged [his] detention, [courts] retain jurisdiction so long as the petitioner is 'in custody.'" Pierrilus v. U.S. Immigration & Customs Enforcement, 293 Fed. App'x 78, 79 (2d Cir. 2008) (summary order). Because Comissiong has been released from "ICE custody, [his] petition has been rendered moot divesting the Court of subject matter jurisdiction." Diop v. Sessions, 2019 WL 1894387, at *2 (S.D.N.Y. Mar. 20, 2019). Accordingly, Commissiong's petition is dismissed as moot, and the Clerk of Court shall terminate him as a party to this action. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 05/18/2020.(CEH)

-CLERK TO FOLLOW UP- (Entered: 05/18/2020)

05/20/2020

108 STATUS REPORT dated 5-20-20 by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 05/20/2020)

05/20/2020 109

ORDER amending the preliminary injunction, Jones Docket
Item 89 ; Ramsundar, Docket Item 27 . Signed by Hon. Lawrence J. Vilardo on 05/20/2020. Associated Cases: 1:20-cv00361-LJV, 1:20-cv-00402-LJV(CEH) (Entered: 05/20/2020)

05/27/2020

110 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 05/27/2020)

05/27/2020

111 MEMORANDUM/BRIEF re 89 Decision and Order, Preliminary Injunction re: Final Briefing on the Merits of Petitioners' Habeas Petition by Dween Alfarel Blackman, Aldwin

06/03/2020 06/03/2020 06/08/2020
06/09/2020 06/10/2020 06/15/2020
06/17/2020

Brathwaite, Lyxon Chery, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Md. Abu Musa Bhuyan, Gamdur Narain, Ricardo Quintanilla-Mejia, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Moravec, Joseph) (Entered: 05/27/2020)
112 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 06/03/2020)
113 REPLY/RESPONSE to re 111 Memorandum/Brief,, re: final habeas relief filed by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 06/03/2020)
114 REPLY/RESPONSE to re 113 Reply/Response, 111 Memorandum/Brief,, Reply Brief re: Final Habeas Relief filed by Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Md. Abu Musa Bhuyan, Gamdur Narain, Ricardo Quintanilla-Mejia, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Peng, John) (Entered: 06/08/2020)
115 Letter filed re decision of DDC in similar case. (Attachments: # 1 June 2, 2020 decision of DDC in CGB)(Khalil, Adam) (Entered: 06/09/2020)
116 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 06/10/2020)
117 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of EVIDENTIARY HEARING held on 5/13/2020, before Judge Hon. Lawrence J. Vilardo. Court Reporter/Transcriber Ann M. Sawyer, Contact Info Ann_Sawyer@nywd.uscourts.gov. 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 7/6/2020. Redacted Transcript Deadline set for 7/16/2020. Release of Transcript Restriction set for 9/14/2020. (CGJ) (Entered: 06/15/2020)
118 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 06/17/2020)

06/24/2020 07/01/2020 07/08/2020 07/09/2020
07/15/2020 07/15/2020 07/17/2020
07/21/2020

119 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 06/24/2020)
120 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 07/01/2020)

121 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 07/08/2020)

122 TEXT ORDER. Telephonic Status Conference set for 7/20/2020 at 9:30 AM in U.S. Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350 before Hon. Lawrence J. Vilardo. Dial-in instructions will be emailed directly to the parties. PLEASE NOTE: The proceeding described herein will be held remotely. Public access to the proceeding can be obtained by viewing Judge Vilardo's calendar on the public website at www.nywd.uscourts.gov, or by contacting Judge Vilardo's chambers at (716) 551-1621. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 7/9/2020. (CMD) (Entered: 07/09/2020)
123 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 07/15/2020)
124 Letter filed re: Change in Lead Counsel. (Moravec, Joseph) (Entered: 07/15/2020)
TEXT ORDER: The status conference scheduled in these matters for 07/20/2020 is adjourned. The Court will reschedule the conference at a later date. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 07/17/2020. Associated Cases: 1:20-cv00361-LJV, 1:20-cv-00402-LJV(CEH) (Entered: 07/17/2020)

125

Text Order

In lieu of a status conference, the parties shall update the Court on the following:

(1) the current confinement status of each of the 27 original petitioners to these matters--detained (specify whether singleoccupancy cell, double-occupancy cell, or dormitory setting), deported, or released;

(2) whether--and with respect to each petitioner previously determined not to be a vulnerable individual--the CDC's revised guidelines affect any petitioner's eligibility for the socialdistancing and other protective measures ordered in these matters, see People Who Need to Take Extra Precautions, Ctrs. for

07/22/2020 07/27/2020
07/27/2020

Disease Control and Prevention (June 25, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/index.html; Older Adults, Ctrs. for Disease Control and Prevention (June 25, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/older-adults.html; People of Any Age with Underlying Medical Conditions, Ctrs. for Disease Control and Prevention (June 25, 2020), https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/people-with-medicalconditions.html; Evidence used to update the list of underlying medical conditions that increase a persons risk of severe illness from COVID-19, Ctrs. for Disease Control and Prevention (June 25, 2020), https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/evidence-table.html; Ctrs. for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 16 (May 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf; and
(3) whether the parties object to consolidating these two matters under Jones, No. 20-CV-361.
The respondents shall provide these updates, in writing and attested to by a medical professional, no later than 08/04/2020. The petitioners shall respond no later than 08/18/2020. And the respondents shall reply no later than 08/25/2020.
SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 07/21/2020. Associated Cases: 1:20-cv-00361-LJV, 1:20-cv00402-LJV(CEH) (Entered: 07/21/2020)
126 STATUS REPORT for July 22, 2020 by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 07/22/2020)
127 MOTION to Withdraw as Attorney by Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Md. Abu Musa Bhuyan, Gamdur Narain, Ricardo QuintanillaMejia, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Attachments: # 1 Declaration Declaration of Nicholas J. Phillips)(Phillips, Nicholas) (Entered: 07/27/2020)
128 ORDER granting (127) Motion to Withdraw as Attorney. Attorney Nicholas John Phillips terminated in case 1:20-cv-00361-LJV;

granting (42) Motion to Withdraw as Attorney. Attorney Nicholas John Phillips terminated in case 1:20-cv-00584-LJV. Signed by Hon. Lawrence J. Vilardo on 07/27/2020.

Associated Cases: 1:20-cv-00584-LJV, 1:20-cv-00361-LJV(CEH)

07/30/2020
08/05/2020 08/12/2020

-CLERK TO FOLLOW UP- (Entered: 07/27/2020)
129 STATUS REPORT in lieu of conference re: confinement status and revised CDC guidelines by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Attachments: # 1 Declaration of Dr. Charbonneau)(Khalil, Adam) (Entered: 07/30/2020)
130 STATUS REPORT for August 5, 2020 by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Coriell, David) (Entered: 08/05/2020)
131 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 08/12/2020)

08/17/2020

132 REPLY/RESPONSE to re 129 Status Report filed by Jubril Adelakoun, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Eric C Commissiong, Danilo Concepcion, Philip Donga, Jonathan Espinal-Polanco, Bright Idada Falodun, Curry Wendell Forbes, Necati Harsit, Vernon Jones, Marckindal Jules, Juan Carlos Lainez Mejia, Md. Abu Musa Bhuyan, Gamdur Narain, Patrick Maduabuchi Nwankwo, Ricardo Quintanilla-Mejia, Shantadewie Rahmee, Oscar Salcedo, Ibrahima Sory Sow, Marvens Thomas, Croswell Wilson. (Attachments: # 1 Exhibit Evid. in Supp.)(Peng, John) (Entered: 08/17/2020)

08/20/2020

133 STATUS REPORT for August 19, 2020 by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Attachments: # 1 letter re late filing)(Khalil, Adam) (Entered: 08/20/2020)

08/26/2020

134 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 08/26/2020)

08/31/2020 135

ORDER as to final injunctive relief. Signed by Hon. Lawrence J. Vilardo on 08/31/20220. Associated Cases: 1:20-cv-00361-LJV, 1:20-cv-00402-LJV, 1:20-cv-00584-LJV(CEH)

-CLERK TO FOLLOW UP- (Entered: 08/31/2020)

08/31/2020

RE 135 Order - the Clerk of Court shall consolidate Jones, 20-cv-361, and Ramsundar, 20-cv-402, under case number 20-cv361; close the case bearing number 20-cv-402; and docket all

09/29/2020 10/21/2020
10/29/2020 11/25/2020 11/30/2020
11/30/2020
12/14/2020 12/21/2020 12/23/2020 01/08/2021 01/18/2021 01/22/2021 02/11/2021 02/16/2021

future submissions in these matters under case number 20-cv-361 Associated Cases: 1:20-cv-00361-LJV, 1:20-cv-00402-LJV(TF) (Entered: 09/01/2020)
136 STATUS REPORT by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 09/29/2020)
137 STATUS REPORT re: 1st positive COVID case in 183 days at BFDF by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 10/21/2020)
138 STATUS REPORT dated Oct 29 2020 by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 10/29/2020)
139 STATUS REPORT for November 2020 by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 11/25/2020)
140 STATUS REPORT re positive COVID test on 11-25-20 with no other exposure by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 11/30/2020)
141 STATUS REPORT re 2 additional positive tests by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 11/30/2020)
142 Letter filed re positive test of BFDF employee. (Khalil, Adam) (Entered: 12/14/2020)
143 Letter filed re 12-21 positive detainee. (Khalil, Adam) (Entered: 12/21/2020)
144 STATUS REPORT re conditions & COVID by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 12/23/2020)
145 Letter filed re positive test on 1-7-21. (Khalil, Adam) (Entered: 01/08/2021)
146 Letter filed re 2 positive cases at BFDF. (Khalil, Adam) (Entered: 01/18/2021)
147 STATUS REPORT for January 2021 by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 01/22/2021)
148 Letter filed re 2-11 positive case. (Khalil, Adam) (Entered: 02/11/2021)
149 Letter filed re additional positive COVID cases in B3 unit. (Khalil, Adam) (Entered: 02/16/2021)

02/16/2021 02/17/2021
02/17/2021
02/19/2021 02/22/2021 02/22/2021 02/22/2021

150 MOTION to Schedule Status Conference re 149 Letter, 148 Letter by Shane Ramsundar, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Danilo Concepcion, Curry Wendell Forbes, Marckindal Jules, Md. Abu Musa Bhuyan, Ricardo Quintanilla-Mejia, Ibrahima Sory Sow.(Peng, John) (Entered: 02/16/2021)
151 TEXT ORDER. Status Conference set for 2/17/2021 at 3:00 PM in U.S. Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350 before Hon. Lawrence J. Vilardo. PLEASE NOTE: The proceeding described herein will be held remotely. Dial-in instructions will be emailed directly to the parties. Public access to the proceeding can be obtained by viewing Judge Vilardo's calendar on the public website at www.nywd.uscourts.gov, or by contacting Judge Vilardo's chambers at (716) 551-1621. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 2/17/2021. (CMD) (Entered: 02/17/2021)
152 Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Status Conference held on 2/17/2021. Court ordered that this proceeding is not to be recorded, or taped in any way. If someone does record it, they will be found in contempt of court. AUSA Khalil provided update as to number of positive COVID19 cases at Buffalo Federal Detention Center, and requested time to provide additional status update by 2/19/2021. Petitioners may respond by letter, or formal motion with the Court setting an expedited briefing schedule. Appearances by AT&T Teleconference: For petitioners: John H. Peng, Joseph D. Moravec, Robert F. Graziano, Grace E. Zaiman, and Shianna McLean. For respondent: AUSA Adam A. Khalil. (Court Reporter Ann M. Sawyer.) (CMD) (Entered: 02/19/2021)
153 STATUS REPORT following 2-17-21 Conf. by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 02/19/2021)
154 STATUS REPORT re additional 1 case in B-1 housing unit by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 02/22/2021)
155 STATUS REPORT for February 2021 by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Khalil, Adam) (Entered: 02/22/2021)
156 MOTION to Modify Permanent Injunction re 135 Order by Shane Ramsundar, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Danilo Concepcion, Curry Wendell Forbes, Marckindal Jules, Md. Abu Musa Bhuyan, Ricardo Quintanilla-

02/22/2021 02/23/2021
02/24/2021 02/25/2021

Mejia, Ibrahima Sory Sow. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support, # 3 Exhibit 1. Decl. of Dr. Ada Rivera, Fraihat v. U.S. ICE)(Peng, John) (Entered: 02/22/2021)
157 MOTION to Expedite Petitioners' Motion to Modify Permanent Injunction by Shane Ramsundar, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Danilo Concepcion, Curry Wendell Forbes, Marckindal Jules, Md. Abu Musa Bhuyan, Ricardo Quintanilla-Mejia, Ibrahima Sory Sow. (Attachments: # 1 Text of Proposed Order, # 2 Memorandum in Support)(Peng, John) (Entered: 02/22/2021)
158 TEXT ORDER re 156 MOTION to Modify Permanent Injunction
re 135 Order, and 157 MOTION to Expedite Petitioners' Motion to Modify Permanent Injunction filed by Shane Ramsundar, Curry Wendell Forbes, Danilo Concepcion, Ricardo Quintanilla-Mejia, Ibrahima Sory Sow, Dween Alfarel Blackman, Aldwin Brathwaite, Md. Abu Musa Bhuyan, Lyxon Chery, Marckindal Jules. Government's Response due by 5:00PM on 2/24/2021. Petitioners' Reply due by 9:00 AM on 2/25/2021. Oral Argument set for 2/25/2021 at 10:00 AM in U.S. Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350 before Hon. Lawrence J. Vilardo. PLEASE NOTE: The proceeding described herein will be held remotely. Dial-in instructions will be emailed directly to the parties. Public access to the proceeding can be obtained by viewing Judge Vilardo's calendar on the public website at www.nywd.uscourts.gov, or by contacting Judge Vilardo's chambers at (716) 551-1621. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 2/23/2021. (CMD) (Entered: 02/23/2021)
159 MEMORANDUM in Opposition re 156 MOTION to Modify
Permanent Injunction re 135 Order filed by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Attachments: # 1 Declaration of Jeffrey Searls, # 2 Declaration of Kyle A. Hobart, # 3 Exhibit A - Holden Petition)(Khalil, Adam) (Entered: 02/24/2021)
160 REPLY/RESPONSE to re 159 Memorandum in Opposition to Motion, to Modify Permanent Injunction filed by Shane Ramsundar, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Danilo Concepcion, Curry Wendell Forbes, Marckindal Jules, Md. Abu Musa Bhuyan, Ricardo Quintanilla-Mejia, Ibrahima Sory Sow. (Peng, John) (Entered: 02/25/2021)

02/25/2021
02/25/2021
02/26/2021 03/01/2021 03/02/2021 03/02/2021 03/03/2021

161 TEXT ORDER re: additional briefing. During today's oral argument, this Court directed the respondents to develop a plan for making the vaccine available to detainees who would otherwise qualify for vaccination. The petitioners were directed to submit further briefing on the issue of testing for employees--specifically, whether this Court has the authority to order testing, the logistics around the proposed plan, and why such a plan would meaningfully address the petitioners' concerns. Both parties shall file their submissions by 5:00pm on 03/03/2021. Further argument in scheduled for 03/04/2021 at 11:00AM. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 02/25/2021. (SAV) (Entered: 02/25/2021)
162 Minute Entry for proceedings held before Hon. Lawrence J. Vilardo: Oral Argument held on 2/25/2021. Court ordered that this proceeding is not to be recorded, or taped in any way. If someone does record it, they will be found in contempt of court. Respondents shall provide the Court with a plan for making the vaccine available to detainees who would otherwise qualify for vaccination. The petitioners shall submit additional briefing on the issue of testing for employees-specifically, whether this Court has the authority to order testing, the logistics around the proposed plan, and why such a plan would meaningfully address the petitioners' concerns. Both parties shall file their submissions by 5:00pm on 3/3/2021. In addition, AUSA Khalil will file updates as number of positive cases at facility. Further argument in scheduled for 3/4/2021 at 11:00AM in U.S. Courthouse, 2 Niagara Square, Buffalo, NY 14202-3350. Appearances by AT&T Teleconference: For petitioners: John H. Peng, Joseph D. Moravec, Grace E. Zaiman, and Shianna McLean. For respondent: AUSA Adam A. Khalil. (Court Reporter Ann M. Sawyer.) (CMD) (Entered: 02/25/2021)
163 Letter filed re 2 positive cases upon re-test of SHU cohort. (Khalil, Adam) (Entered: 02/26/2021)
164 Letter filed re 5 additional COVID cases. (Khalil, Adam) (Entered: 03/01/2021)
165 Letter filed re identification of infected petitioner (no new COVID cases since Sunday). (Khalil, Adam) (Entered: 03/02/2021)
166 Letter filed re 1 positive case on 3-2-21. (Khalil, Adam) (Entered: 03/02/2021)
167 MEMORANDUM/BRIEF re 161 Text Order,, re: the Testing of Employees at the Buffalo Federal Detention Facility by Shane

03/03/2021 03/03/2021

Ramsundar, Dween Alfarel Blackman, Aldwin Brathwaite, Lyxon Chery, Danilo Concepcion, Curry Wendell Forbes, Marckindal Jules, Md. Abu Musa Bhuyan, Ricardo Quintanilla-Mejia, Ibrahima Sory Sow. (Attachments: # 1 Exhibit A. DHS, Drug-Free Workplace Program)(Peng, John) (Entered: 03/03/2021)
168 MEMORANDUM/BRIEF re 161 Text Order,, re plan to vaccinate BFDF detainees by Thomas E. Feeley, Jeffrey Searls, Chad Wolf. (Attachments: # 1 Exhibit A - NYSDOH Guidance, # 2 Exhibit B - NYSDOH Appointment Availability, # 3 Exhibit C - Savino Brief)(Khalil, Adam) (Entered: 03/03/2021)
169 Letter filed no new cases; testing continues. (Khalil, Adam) (Entered: 03/03/2021)

PACER Service Center
Transaction Receipt

PACER Login:
Description:
Billable Pages:

03/04/2021 01:10:19

CRClearinghouse:2563377:0

Client Code:

Docket Report

Search Criteria:

30

Cost:

Peach
1:20-cv00361-LJV
3.00

 
 Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 1 of 27
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

VERNON JONES, MARCKINDAL JULES, LYXON CHERY, ALDWIN JUNIOR BRATHWAITE, PATRICK MADUABUCHI NWANKWO, DWEEN ALFAREL BLACKMAN, RICARDO QUINTANILLAMEJIA, BRIGHT IDADA FALODUN, PHILIP DONGA, GAMDUR NARAIN, ERIC C. COMMISSIONG, MD. ABU MUSA BHUYAN, IBRAHIMA SORY SOW, JUBRIL ADELAKOUN, JUAN CARLOS LAINEZ MEJIA, CROSWELL WILSON, JONATHAN ESPINAL-POLANCO, MARVENS THOMAS, SHANTADEWIE RAHMEE, DANILO CONCEPCION, OSCAR SALCEDO, CURRY WENDELL FORBES, and NECATI HARSIT;
Petitioners, v.
CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security;
THOMAS E. FEELEY, in his official capacity as Field Office Director, Buffalo Field Office, U.S. Immigration & Customs Enforcement; and
JEFFREY SEARLS in his official capacity as Administrator, Buffalo Federal Detention Facility.
Respondents.

Civil Action No. 1:20-0361
EMERGENCY PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO
28 U.S.C. § 2241 AND COMPLAINT FOR INJUNCTIVE RELIEF
Oral Argument Requested

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 2 of 27
INTRODUCTION The novel coronavirus, COVID-19, has created a pandemic and disrupted daily functioning around the world. In only a few months, 458,927 people worldwide have been diagnosed with COVID-19 and 20,806 people have died from the virus. In New York State, the epicenter of the virus in the United States, 30,811 people have been diagnosed with and 285 people have died from COVID-19. The Centers for Disease Control and Prevention (“CDC”) warns that older adults and people of any age who have serious underlying medical conditions may be at a higher risk for more serious complications from COVID-19. Underlying medical conditions that influence higher risks of severe illness or death from COVID-19 include lung disease, including moderate to severe asthma; heart disease; immunodeficiency, including cancer; diabetes; and severe obesity. Complications, meanwhile, include pneumonia in both lungs, organ failure in several organs, and death. A viable vaccine for COVID-19 remains up to eighteen months away. New York has taken drastic measures to combat the virus. Governor Andrew M. Cuomo directed that all non-essential businesses statewide to close in-office personnel functions; ordered all essential businesses and entities to implement rules that help facilitate social distancing of at least six feet and to reduce staff by 75%; and directed all individuals to practice social distancing of at least six feet from others when out in the public. New York hospitals are already experiencing critical shortages of supplies and dwindling treatment capacity. The New York State government has coordinated with the Army Corps of Engineers to set up temporary hospitals at four large-scale event spaces throughout New York, while the federal government has authorized the deployment of a U.S. Navy hospital ship to New York Harbor. Congregate settings – environments where people live, eat, and sleep in close proximity with one another – produce heightened risks for the spread of COVID-19. People who are confined
1

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 3 of 27
in jails and detention facilities cannot achieve the social distancing needed to prevent the spread of COVID-19 because they live in close quarters with one another; share toilets, sinks, and showers; and eat in communal areas. In a letter to Congress, Dr. Scott A. Allen and Dr. Josiah Rich, medical subject matter experts for the Department of Homeland Security’s (“DHS”) Office of Civil Rights and Civil Liberties, explained that “social distancing is an oxymoron in congregate settings . . . because of the concentration of people in a close area with limited options for creating distance . . . .” An outbreak within an immigration detention facility not only affects those detained inside the facility but also poses an enormous public health risk because detainees 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 treatment facilities. Dr. Robert B. Greifinger, an independent consultant on health care within prisons and detained settings, stresses that many detention facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention. The prevailing opinion among public health experts is that the release of high-risk individuals from detention facilities is a key part of the public risk mitigation strategy.
COVID-19 has prompted the release of a growing number of detainees from a variety of detention facilities. New York City officials have released seventy-eight detainees from the Rikers Island jail complex in Queens, New York. On March 23, 2020, the Ninth Circuit sua sponte ordered the release of an individual held at a California immigration detention facility. See Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020). The Court cited the “rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers” as the reason for its order. The United Kingdom Home Office, meanwhile, has ordered the release of almost three hundred immigrants from detention centers,
2

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 4 of 27
recognizing that the government could not properly protect immigrants in detention from contracting COVID-19.
Petitioners are individuals held in civil immigration detention at the Buffalo Federal Detention Facility (“BFDF” or “Batavia”) who face higher risks of serious complications if they contract COVID-19. Petitioners are either over the age of fifty and/or have a serious underlying medical condition, making them more vulnerable to complications arising from COVID-19. The Buffalo Federal Detention Facility is located in Batavia, New York, in Genesee County, where at least one positive diagnosis of COVID-19 has already been made and a state of emergency has been declared. There are also at least two cases confirmed at the Wende Correctional Facility in Alden, New York, through which all transfers of inmates from New York State prison to the Buffalo Federal Detention Facility are processed.
The dangers posed to Petitioners continued detention at Batavia amidst the current COVID19 outbreak are “so grave that it violates contemporary standards of decency” to expose them to such a risk. Helling v. McKinney, 509 U.S. 25, 36 (1993). Moreover, the severity of the outbreak and potential harm to Petitioners dictate that continued civil detention no longer comports with the narrow and nonpunitive circumstances that ordinarily authorize civil detention. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
PARTIES 1. Petitioner Vernon Jones is a 39-year-old native and citizen of Jamaica. Mr. Jones has been detained by ICE at Batavia since September 2019 and is diagnosed with epilepsy and suffers from regular seizures. As a consequence of his chronic epilepsy, Mr. Jones is at a high risk of developing serious complications or death if he contracts COVID-19.
3

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 5 of 27
2. Petitioner Marckindal Jules is a 46-year-old native and citizen of Haiti. Mr. Jules has been detained by ICE at the BFDF since March 2019, is pre-diabetic and tests of his liver function have returned abnormal results. Mr. Jules also lives with an unspecified mental illness for which he takes medication. Mr. Jules is critically vulnerable to COVID-19 because of his prediabetic condition.
3. Petitioner Lyxon Chery is a 60-year-old native and citizen of Haiti. He has been detained by ICE at the BFDF since December 2017. Mr. Chery has been diagnosed with moderate to severe Post-Traumatic Stress Disorder and Major Depressive Disorder stemming from past trauma he suffered in Haiti. Mr. Chery also struggles with high blood pressure. He takes daily medication for both his mental and physical health. Mr. Chery is critically vulnerable to COVID19 because of his age and medical conditions.
4. Petitioner Aldwin Brathwaite is a 58-year-old native and citizen of Trinidad and Tobago. Mr. Brathwaite has been detained by ICE at the BFDF since January 2019. Mr. Brathwaite has recently been diagnosed with prostate cancer and was in the process of obtaining a treatment plan. Mr. Brathwaite is critically vulnerable to COVID-19 because of his age and his significant health issues.
5. Petitioner Patrick Maduabuchi Nwanwko is a 53-year old native and citizen of Nigeria. Mr. Nwankwo has been detained by ICE since June 2018. Mr. Nwankwo is pre-diabetic and takes medication for high blood pressure. Mr. Nwankwo is critically vulnerable to COVID19 because of his age and his medical conditions.
6. Petitioner Dween Afarel Blackman is a 26-year old native of Suriname and citizen of Guyana. Mr. Blackman has been detained by ICE since December 2019. Mr. Blackman suffers from asthma, ulcerative colitis, and an undiagnosed gastrointestinal illness, and because of his
4

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 6 of 27
respiratory illness and gastrointestinal complications, he has a weakened immune system. Mr. Blackman is critically vulnerable to COVID-19 because of his medical conditions.
7. Petitioner Ricardo Quintanilla-Mejia is a 42-year old native and citizen of El Salvador. Mr. Quintanilla-Mejia has been detained by ICE since October 2016. Mr. QuintanillaMejia is diabetic, and also suffers from post-traumatic stress disorder, chronic pancreatitis, metabolic syndrome, blood abnormalities, chronic abdominal pain an musculoskeletal pain resulting from injuries sustained while in custody. Mr. Quintanilla-Mejia takes medications to treat some of these conditions in addition to medication for insomnia and PTSD. Mr. QuintanillaMejia is critically vulnerable to COVID-19 because of his medical conditions.
8. Petitioner Bright Falodun is a 38-year old native and citizen of Nigeria. Mr. Falodun has been detained by ICE at Batavia since August 2015. Mr. Falodun has a history of schizophrenia, depression, rhabdomyolysis, acute kidney injury/acute tubular necrosis, hyperkalemia, metabolic acidosis, and transaminitis. Because of his medical conditions, Mr. Falodun is at a high risk of developing serious complications or death if he contracts COVID-19.
9. Petitioner Bright Idada Falodun is a 38-year old native of Nigeria.1 Mr. Falodun has been detained by ICE at Batavia since August 2015. Mr. Falodun has a history of schizophrenia, depression, rhabdomyolysis, acute kidney injury/acute tubular necrosis, hyperkalemia, metabolic acidosis, and transaminitis. Mr. Falodun is critically vulnerable to COVID-19 because of his medical conditions.
10. Petitioner Philip Donga is a 31-year old native and citizen of Sudan. Mr. Donga has been detained at Batavia since December 2018. Mr. Donga has a history of traumatic subdural
1 Mr. Falodun has been ordered removed to Nigeria, but is challenging his order of removal before the Second Circuit Court of Appeals, arguing that he is a citizen of the United States. See Falodun v. Barr, 17-18-13 (2d Cir.) (pending).
5

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 7 of 27
hematoma as well as seizure disorder, vertigo, and dizziness. He has a long history of tobacco use. He was also identified as at increased risk for cardiovascular disease and is monitored for hyperlipidemia. Mr. Donga has a history of surgery related to his traumatic brain injury and separately for gun-shot wounds sustained in his home country. Mr. Donga is critically vulnerable to COVID-19 because of his medical conditions, history of smoking, and heightened risk of cardiovascular disease.
11. Petitioner Gamdur Narain is a 59-year old native and citizen of India. Mr. Narain has been detained by ICE in excess of two years. Mr. Narain is critically vulnerable to COVID19 because of his age.
12. Petitioner Eric C. Commissiong is a 58-year old native and citizen of Trinidad and Tobago. Mr. Commissiong suffers from high blood pressure. Mr. Commissiong is critically vulnerable to COVID-19 because of his age and high blood pressure.
13. Petitioner Md. Abu Musa Bhuyan is a 56-year old native and citizen of Bangladesh. He suffers from a tumor on his head. Mr. Musa Bhuyan is critically vulnerable to COVID-19 because of his age and medical conditions.
14. Petitioner Ibrahima Sory Sow is a 53-year old native and citizen of Guinea. Mr. Sow suffers from an immune deficiency that makes him especially vulnerable to COVID-19. Therefore, Mr. Sow is critically vulnerable to COVID-19 because of his age and medical conditions.
15. Petitioner Jubril Adelakoun is a 43-year old native and citizen of Nigeria. Mr. Adelakoun has been detained by ICE since March 2018. He is pre-diabetic and suffers from hypertension. Mr. Adelakoun is critically vulnerable to COVID-19 because of his medical conditions.
6

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 8 of 27
16. Petitioner Juan Carlos Lainez Mejia is a 38-year-old native and citizen of Honduras. He has been detained by ICE since December 2017, but was recently moved to the Buffalo FDF from Bergen County Detention Center. Mr. Lainez Meija is HIV-positive. As of December 2019, his HIV status was only partially controlled by anti-retroviral medication, leaving his immune system compromised. Mr. Lainez Mejia is critically vulnerable to COVID-19 because of his medical conditions.
17. Petitioner Croswell Wilson is a 51-year old native and citizen of Jamaica. Mr. Wilson has been detained at BFDF since March 2019. Mr. Wilson has a history of smoking. Mr. Wilson is critically vulnerable to COVID-19 because of his medical history and history of smoking.
18. Petitioner Jonathan Espinal-Polanco is a 37-year-old native and citizen of the Domincan Republic. Mr. Espinal-Polanco has been detained by ICE at Batavia since November 2019. Mr. Espinal-Polanco struggles with asthma, schizophrenia, morbid obesity, and hyperlipidemia. As a consequence of his asthma and other conditions, Mr. Espinal-Polanco is critically vulnerable to COVID-19 because of his medical conditions.
19. Petitioner Marvens Thomas is a 27-year old native and citizen of Haiti. Mr. Thomas has been detained by ICE at Batavia since July 2019. Mr. Thomas has a history of schizophrenia, high blood pressure, and seizures. Mr. Thomas is critically vulnerable to COVID-19 because of his medical conditions.
20. Petitioner Shantadewie Rahmee is a 48-year-old native and citizen of Surimame. Ms. Rahmee has been detained by ICE at Batavia since October 2019. Ms. Rahmee struggles with asthma and has her whole adult life. Ms. Rahmee is critically vulnerable to COVID19 because of her respiratory condition.
7

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 9 of 27
21. Petitioner Danilo Concepcion is a 42- year-old native and citizen of the Dominican Republic. Mr. Concepcion has been detained by ICE at Batavia since approximately April 2019. Mr. Concepcion is a Type I diabetic. Mr. Concepcion is critically vulnerable to COVID19 because of his diabetes.
22. Petitioner Oscar Salcedo is a 57-year old native and citizen of the Dominican Republic. He has lived in the United States for 52 years since he was 5 years old. Mr. Salcedo is critically vulnerable to COVID-19 because of his age.
23. Petitioner Curry Wendell Forbes is a 42-year old native and citizen of Turks and Caicos and has lived in the United States since he was less than a year old. Mr. Forbes suffers from schizophrenia, diabetes, hypertension, and hypothyroidism. Mr. Forbes is critically vulnerable to COVID-19 because of his medical conditions.
24. Petitioner Necati Harsit is a 58-year-old native and citizen of Turkey. Mr. Harsit has been detained by ICE at Batavia since November 2019. He struggles with schizophrenia, diabetes, and had a heart attack and an asthma attack in 2016. Mr. Harsit is critically vulnerable to COVID-19 because of his age and medical conditions.
25. Respondent Chad Wolf is sued on his official capacity as the Acting Secretary of the Department of Homeland Security, which is the federal agency responsible for all immigration enforcement and, ultimately, Petitioners’ continued detention.
26. Respondent Thomas E. Feeley is sued in his official capacity as the Office Director of the Buffalo Field Office of the U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations, which exercises authority over the Buffalo Federal Detention Facility and controls Petitioners’ detention or release from that facility.
8

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 10 of 27
27. Respondent Jeffrey Searls is sued in his official capacity as the Administrator of the Buffalo Federal Detention Facility at which Petitioners are all currently detained.
JURISIDICTION AND VENUE 28. This Court has jurisdiction under the United States Constitution. U.S. Const. art. I § 9, cl. 2 (“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require.”). 29. This Court also has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 2241 (habeas jurisdiction), and 28 U.S.C. § 1651 (All Writs Act). 30. Additionally, this Court has jurisdiction to grant injunctive relief in this case pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. 31. Venue is proper in the U.S. District Court for the Western District of New York because Petitioners are detained at the Buffalo Federal Detention Facility in Batavia, New York, which is within the Western District of New York. 28 U.S.C. § 1391.
FACTS COVID-19 Poses Grave Risks of Harm, Including Serious Illness or Death, to Older People and Those with Underlying Medical Conditions.
32. COVID-19 is a respiratory illness that has reached pandemic status. As of March 25, 2020, 458,927 people worldwide have been diagnosed with COVID-19 and 20,806 have died from COVID-19 related complications. Public health experts predict COVID-19 cases to rise exponentially in the coming months and conditions to worsen as healthcare infrastructure and medical resources are strained by growing needs for treatment.
9

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 11 of 27
33. People over the age of fifty and people of any age who are diagnosed with or have a history of certain underlying medical conditions face greater chances of developing serious complication or dying from a COVID-19 infection. These conditions include: lung disease; heart disease; chronic liver or kidney diseases, including hepatitis and dialysis patients; diabetes; epilepsy; hypertension; compromised immune systems, such as from cancer, HIV, or autoimmune disease; blood disorders, including sickle cell disease; inherited metabolic disorders; stroke; developmental delay; and pregnancy.
34. In many people, COVID-19 causes fever, cough, and shortness of breath. For people who develop serious complications, however, COVID-19 can cause: life-threatening pneumonia, marked with a filling of the lungs with inflammatory material; severe damage to the lung tissue; inflammation of the heart muscle, leading to rapid or abnormal heart rhythms; or an overreaction of the autoimmune system, which can cause widespread and permanent damage to the patient’s other organs.
35. Serious complications from COVID-19 can manifest at a rapid pace. Patients can show the first symptoms of infection in as little as two days after exposure and their condition can rapidly deteriorate in as little as five days or sooner.
36. The spread of COVID-19 is also occurring at an alarming pace. The virus can stay on certain surfaces for up to 72 hours and can remain in air particles. People who have been exposed to the coronavirus may remain asymptomatic for weeks, possibly never showing symptoms, but could still be carriers for the virus.
37. Even some younger and healthier people who contract COVID-19 may require intensive supportive care, including supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. People in higher risk categories who
10

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 12 of 27
develop serious complications, however, will require advanced support. This level of supportive care requires highly specialized equipment that is in limited supply and entire teams of care providers, including nurses, respiratory therapists, and intensive care physicians. The level of support required to adequately treat people with COVID-19 infections can quickly exceed local health care resources.
38. People in the higher risk populations – such as Petitioners – face a fatality rate of approximately 15 percent from a COVID-19 infection. Even in high-risk patients who do not die from COVID-19 must expect a prolonged recovery, including the need for extensive rehabilitation for profound reconditioning, neurologic damage, or the loss of respiratory capacity.
39. Due to the trajectory of COVID-19’s spread and the limitations of the existing medical care infrastructure, public health experts have emphasized that social distancing is the only viable option for mitigating the virus’s damage in the absence of mass testing. Even so, projections published by researchers from the Imperial College London show that even with the implementation of stringent mitigation strategies, such as orders for nationwide social distancing, home isolation, and continued school and university closures, the death toll in the United States could still reach as high as 1.1 million people. And without such actions, the death toll could reach upwards of 2.2 million people.
New York State is the Most Highly Impacted State in the Country and Has Begun to Take Extraordinary Measures to Curtail the Spread of COVID-19.
40. As of March 25, 2020, New York State has reported 30,811 confirmed cases of COVID-19 and 285 deaths, representing the nation’s most-impacted state. New York’s hospitals
11

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 13 of 27
are beginning to experience critical shortages of supplies and are running low on treatment space. Governor Andrew M. Cuomo announced plans to outfit several large convention sites into makeshift hospitals and the imminent arrival of two U.S. Navy hospital ships into New York Harbor.
41. The continuing and rapid spread of COVID-19 throughout the state led Governor Cuomo to impose a ten-part plan heavily restricting residents’ movements and curtailing social activity. Measures include the statewide closure of all non-essential businesses, a directive to entities providing essential services to adopt rules that facilitate social distancing of at least six feet and a 75% reduction in in-person staff, and a requirement for all individuals to practice social distancing of at least six feet from others when in public.
42. The spread of COVID-19 throughout New York has also begun to impact the Rikers Island jail complex in Queens, New York, with confirmed cases rising to thirty-eight as of March 22, 2020 and continuing to rise to 52 confirmed cases at the time of filing. On March 20, the New York City Department of Correction released fifty-six detainees from Rikers Island due to COVID19. On March 22, Mayor de Blasio announced that twenty-three more detainees were set to be released and the city is reviewing two hundred additional inmates for possible release. Officials’ decision to release vulnerable detainees from Rikers Island came at the heels of calls from the N.Y.C. Board of Correction to “immediately remove from jail all people at higher risk of COVID19 infection” and “rapidly decrease the jail population.”
43. Positive cases of COVID-19 have similarly begun to emerge within the New York State Corrections system. On March 17, 2020, an employee at the Sing Sing Correctional Facility in Ossining, New York tested positive for COVID-19; while on March 22, 2020, two inmates
12

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 14 of 27
tested positive for COVID-19 at the Wende Correctional Facility2 in Alden, New York. At least one inmate is confirmed positive for COVID-19 at the Clinton Correctional Facility in Dannemora, New York. Moreover, news outlets report that as of today, as many as seventeen DOCCS staff at several facilities have tested positive for the virus.
44. The potential outbreak of COVID-19 within the state’s correctional facilities and at ICE facilities in New Jersey (from which Petitioner Juan Carlos Lainez Mejia was recently transferred to the BFDF), as well as the disproportionate impact the virus might have within a prison setting, has prompted State Senator Luis Sepúlveda and Assemblyman David Weprin to issue a joint letter to Governor Cuomo calling for the immediate creation and convening of an emergency COVID-19 release committee. The two legislators opined that “[a]nyone who can be safely sent out to the community and who has a family or a stable living situation to go to should be immediately considered for release regardless of the length of his or her remaining sentence.” See Letter from Sen. Luis R. Sepúlveda and Assemblyman David Weprin to Governor Andrew M. Cuomo, dated March 19, 2020 [annexed as Exh. D]. People Detained at the Buffalo Federal Detention Center in Batavia, New York Face an Elevated Risk of COVID-19 Transmission.
45. People who live in “congregate environments” – places where people live, sleep, and eat in close proximity with one another – face particularly acute risks of contracting COVID19. Immigration detention facilities have greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources.
2 Wende Correctional Facility is the state prison through which all inmates being transferred to ICE custody at Batavia are out-processed from state custody and handed over to ICE. 13

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 15 of 27
46. Absent a vaccine or mass testing, neither of which is presently available, public health officials identify social distancing as the only viable option to mitigate the spread of the virus and reduce the risk of contracting COVID-19. Social distancing, however, is an oxymoron in congregate settings like the Buffalo Federal Detention Facility because detainees have severely limited options when trying to create distance between each other. Specifically, detained noncitizens are forced to share toilets, sinks, and showers, often without disinfection between uses. Food preparation and food service is similarly communal with few opportunities for surface disinfection.
47. In detained settings, the risk is not only limited to occupants of the detention facility, but also the surrounding community because detainees who contract COVID-19 with symptoms that require medical intervention will need to be treated at local hospitals and increase the risk of infection to the public at large. There is also a risk to security officers who necessarily interact daily with detainees, but who then leave the facility each day to the public.
48. Public health experts warn that an outbreak at a prison or detention facility could quickly overwhelm the medical resources of the facility’s surrounding community. Local hospitals, which already have limited access to ventilators or other vital equipment, will face extreme difficulty trying to treat multiple COVID-19 patients at a time. This is particularly true of Batavia, which does not have large-capacity healthcare infrastructure.3
49. Dr. Robert Greifinger, a correctional health expert who has extensive experience working with New York detention facilities, concludes that “even with the best-laid plans to
3 For example, the hospital in Batavia – United Memorial Medical Center – has a total of 133 beds relative to a town of approximately 14,500 residents, in addition to the approximately 650 detainees at the Buffalo Federal Detention Facility. 14

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 16 of 27
address the spread of COVID-19 in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy.” Drs. Scott A. Allen and Dr. Josiah Rich, medical subject matter experts for the DHS Office of Civil Rights and Civil Liberties, wrote in a letter to Congress that in order “to implement immediate social distancing to reduce the likelihood of exposure to . . . the general public, it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.”
50. Beyond the inherent characteristics of detention facilities that make them highly susceptible to infection outbreaks, the BFDF possesses several additional dangers of a COVID-19 outbreak. The facility has not been fully closed to the public, as it houses the Batavia Immigration Court, which continues to operate on a regular basis. Immigration judges, court personnel, facility personnel, attorneys, noncitizens’ family members4, and others continue to enter and exit BFDF daily.
51. The BFDF also continues to receive incoming detainees from the New York State Department of Corrections and Community Supervision (“DOCCS”) and other detention facilities. The Wende Correctional Facility in Alden, New York serves as the regular transfer facility for a person leaving DOCCS custody and into ICE custody. The facility reported two confirmed COVID-19 cases among the inmate population on March 22, 2020. Petitioners are Vulnerable to Serious Complications if Infected by COVID-19
52. Petitioners in this case comprise people who are particularly vulnerable of developing serious complications from a COVID-19 infection because of their age or underlying medical conditions. Collectively, in addition to several at risk due to their age, Petitioners suffer
4 Routine family visitation has been suspended, but family members may testify in person in the Batavia Immigration Court. 15

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 17 of 27
from a broad range of serious medical conditions that make them susceptible to both serious complications or death if any one of them were to contract COVID-19.
53. For example, Petitioner Vernon Jones suffers from epilepsy and Petitioners Marvens Thomas and Philip Donga suffer from seizures. The Epilepsy Foundation reports that “people with epilepsy and other medical conditions may be at greater risk of developing more severe illness if they are exposed to COVID-19” and the American Epilepsy Society reports that “viral illnesses [such as COVID-19] may be a trigger for seizures.”
54. Petitioners Dween Blackman, Jonathan Espinal-Planco, and Shantadewie Rahmee have asthma and Petitioners Croswell Wilson and Philip Donga have a history of smoking. The CDC reports that “People with asthma may be at higher risk of getting very sick from COVID-19 [because] COVID-19 can affect [the] respiratory tract (nose, throat, lungs), cause an asthma attack, and possibly lead to pneumonia and acute respiratory disease.” The American Lung Association reports that those with chronic lung disease or other respiratory conditions “are more likely to develop severe symptoms.” The CDC reports that those with any history of heart-related or respiratory illness, including asthma or a history of smoking, are at a heightened risk from COVID19. Petitioners all fall into one or several of these high risk categories.
55. Petitioners Marckindal Jules, Patrick Nwankwo, Ricardo Quintanilla-Mejia, Bright Falodun, Jubril Adelakoun, Danilo Concepcion, Curry Wendell Forbes, and Necati Harsit suffer from diabetes, prediabetes, or other renal complications. The National Kidney Foundation reports that “[o]lder adults and people with kidney disease or other severe chronic medical conditions seem to be at higher risk for more serious Coronavirus illness.”5
5 NATIONAL KIDNEY FOUNDATION, Be Prepared: Kidney Patient Prep for Coronavirus (accessed March 19, 2020), https://www.kidney.org/contents/be-prepared-kidney-patient-prep-coronavirus.
16

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 18 of 27
56. Petitioner Juan Carlos Lainez Mejia is HIV-positive and Ibrahima Sory Sow suffers from an immune deficiency. While the CDC reports that it is so far unknown whether people with HIV are at greater risk from COVID-19, the CDC does report that “[p]eople with HIV can also be at increased risk of getting very sick with COVID-19 based on their age and other medical conditions.” Mr. Lainez Mejia and Ms. Sow both have diminished immune systems and are make them particularly vulnerable to COVID-19.
57. Petitioners Lyxon Chery, Eric Commissiong, and Marvens Thomas, suffer from high blood pressure. Petitioners Aldwin Brathwaite and Md. Abu Musa Bhuyan have cancer. The American Heart Association reports that “older adults with heart disease appear to be at a higher risk of getting COVID-19” and “people of any age with serious underlying medical condictions – such as diabetes, cancer, or kidney failure – may face a higher risk of complications if they do get infected.”
LEGAL FRAMEWORK A. Petitioners Have a Constitutional Right to Reasonable Safety in Custody.
58. Whenever the government detains or incarcerates someone, it has an affirmative duty to provide conditions of reasonable health or safety. In DeShaney v. Winnebago County Dept. of Soc. Servs., the Supreme Court explained that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” 489 U.S. 189, 199-200 (1989). When the government fails to provide the detained individual with his basic human needs, such as “food, clothing, shelter, and medical care . . . it transgresses the substantive limits on state action set by the Eighth Amendment.” Id.
17

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 19 of 27
59. Conditions that pose an unreasonable risk of future harm violate the Eighth Amendment’s prohibition against cruel and unusual punishment even if that harm has not yet come to pass. The Eighth Amendment requires that “inmates be furnished with the basic human needs, one of which is ‘reasonable safety.’” Helling, 509 U.S. at 33. Exposure to “toxic or similar substances” constitutes one such circumstance where “the Amendment’s protection would be available even if the effects of exposure might not be manifested for some time.” Id. at 34.
60. Furthermore, an injunction may be appropriate even in the absence of a COVID-19 outbreak at Batavia. Id. at 33 (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition . . . on the ground that nothing yet has happened to them.”). Medical experts are reasonably certain an outbreak is likely imminent, and Petitioners need not wait until they have the virus to bring this action.
61. These principles requiring the government to assure detainees’ reasonable safety applies equally – if not under an even heightened standard – in the context of immigration detention. Immigrant detainees, even those with prior criminal convictions, are civil detainees held pursuant to civil immigration laws. Zadvydas, 533 U.S. at 690.
62. Because detained immigrants are civil detainees, their constitutional protections while in custody are derived from the Due Process Clause of the Fifth Amendment, which afford protections even greater than the Eighth Amendment. The Eighth Amendment, which applies to persons convicted of criminal offenses, allows punishment as long as it is not cruel and unusual. The Fifth Amendment, by contrast, does not permit punishment at all. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (stating that civil detainees “may not be punished in any manner – neither cruel and unusually nor otherwise.”) (internal quotation marks and citations omitted).
18

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 20 of 27
63. In Charles v. Orange County, the Second Circuit affirmed that individuals in civil detention are “afforded a right to be free from deliberate indifference to their serious medical needs.” 925 F.3d 73, 85 (2d Cir. 2019). Deliberate indifference “can be shown by something akin to recklessness, and does not require proof of a malicious or callous state of mind.” Id. at 86. It is established either when “the defendants knew that failing to provide . . . medical treatment would pose a substantial risk to [the detainee]. . . 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.” Id. at 87.
B. COVID-19’s Threat Imposes a Potential Harm to Petitioners that Exceeds Respondents’ interests in Detaining Them.
64. The risk of serious illness or death confronting Petitioners should they contract COVID-19 significantly exceeds Respondents’ interests in to continue detaining them. In Zadvydas, the Supreme Court emphasized that the government’s two interests in detaining noncitizens within immigration detention facilities are to “ensure[] the appearance of aliens at future immigration proceedings” and “prevent[] danger to the community.” 533 U.S. at 690 (internal quotation marks and citation omitted). The government’s twin interests must always be weighed against an individual’s compelling liberty interest to be free of physical restraint. Id.
65. The Zadvydas Court clarified that the distinction is not between imprisonment and noncitizens “living at large” but rather between imprisonment and “supervision under release conditions . . . .” Id. at 696. The Court concluded that “an alien’s liberty interest is, at the least, strong enough to raise a serious question as to whether . . . the Constitution permits detention that is indefinite and potentially permanent.” Id. If the government’s interest in effectuating removal
19

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 21 of 27
and protecting the community cannot justify indefinite detention, it also cannot justify the similarly medical harm that Petitioners are likely to suffer.
66. This is not the first instance in which this Court has been tasked with considering a habeas action from a Batavia detainee based at least in part on the health consequences in detention. In D’Alessandro v. Mukasey, this Court considered the case of a fifty-year-old petitioner suffering from a “constellation of serious, debilitating, and progressive health problems” that were not likely to improve within ICE custody. 628 F.Supp.2d 368 (W.D.N.Y. 2009). The Court concluded that petitioner’s health problems weighed in his favor in establishing that he was “not likely to violate [any] conditions of release” imposed upon him and subsequently ordered his release. Id. at 400.
C. ICE Has the Authority to Release Detained People in Its Custody. 67. It is well within ICE’s authority to comply with these constitutional requirements
by releasing detainees like Petitioners who are especially vulnerable to severe illness or death if they contract COVID-19. Regulations governing ICE’s release authority state that serious medical conditions are one reason to parole an individual, as “continued detention would not be appropriate” in such cases. 8 C.F.R. § 212.5(b)(1).
68. Respondents have routinely exercised their discretion to release particularly vulnerable detainees from the BFDF based on serious medical conditions. They also regularly exercise their humanitarian parole authority on behalf of detainees for medical reasons.
69. ICE officers may exercise favorable discretion in cases involving severe medical concerns and limit the detention of noncitizens with special vulnerabilities. This group includes individuals who are known to be suffering from serious physical or mental illness, who have
20

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 22 of 27
disabilities, who are elderly, pregnant, or nursing, or whose detention as otherwise not in the public interest.
70. Importantly, these release policies apply regardless of the statutory authorization for an individual non-citizen’s detention. Even individuals mandatorily detained pursuant to 8 U.S.C. § 1226(c) are eligible for release by ICE when risks associated with medical conditions is sufficiently severe. Release is warranted particularly where the nature of the illness – or potential illness – could impose substantial health care costs on the detention facility, or where the humanitarian equities that mitigate against detention are particularly compelling.
D. This Court Has Authority to Order Petitioners Released to Vindicate Their Fifth Amendment Rights, and Such Relief is Appropriate Here.
71. “Federal courts have broad discretion in fashioning equitable remedies for . . . constitutional violations.” Ass’n of Surrogates & Supreme Court Reporters Within City of New York v. State of N.Y., 966 F.2d 75, 79 (2d Cir. 1992), opinion modified on reh’g, 969 F.2d 1416 (2d Cir. 1992). The Supreme Court has even held that “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S. 493, 511 (2011).
72. In cases involving prisons and jails, federal courts have repeatedly ordered the release of detained persons when necessary to remedy constitutional violations caused by overcrowding. See, e.g., Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of lowbond pretrial detainees as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-25 (S.D. Ala. 1984) (concluding that district court properly exercised remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions);
21

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 23 of 27
Brenneman v. Madigan, 343 F. Supp. 128, 139 (N.D. Cal. 1972) (“If the state cannot obtain the resources to detain persons . . . in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons.”). Such examples are in the context of criminal incarceration; as noted above, civil immigration detention is subject to even more liberal protections under the Fifth Amendment.
73. In ICE’s directive on COVID-19, the agency acknowledges that it “only has the authority to detain individuals for immigration purposes . . . [and] cannot hold any detainee ordered released by a judge.” Thus, Respondents themselves must acknowledge this Court’s authority to order Petitioners released.
74. As the constitutional principles and public health experts make clear, releasing Petitioners is the only viable remedy to ensure both their safety and the safety of the public-atlarge. Petitioners are all older adults and /or persons with pre-existing medical conditions that magnify their particularly grave risk of developing serious complications or death if they contract COVID-19.
CLAIM FOR RELIEF COUNT ONE:
PETITIONERS’ DETENTION IN THE FACE OF COVID-19 VIOLATES THEIR FIFTH AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS
(Unlawful Punishment; Freedom from Cruel Treatment and Conditions of Confinement) 75. The Fifth Amendment of the Constitution guarantees that civil detainees, including
all noncitizen detainees, may not be subjected to punishment of any kind. The federal government violates this substantive due process right when it subjects civil detainees to cruel treatment or
22

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 24 of 27
when it imposes conditions of confinement that amount to punishment because it does not ensure detainees’ safety and health.
76. The conditions maintained at the Buffalo Federal Detention Facility subject Petitioners to a heightened risk of contracting COVID-19, a deadly virus for which there is no vaccine or treatment, and which is likely to so overwhelm all regional healthcare facilities. These circumstances, in addition to their individual circumstances, make Petitioners particularly vulnerable, at risk of serious illness and death if any one of them are infected with COVID-19.
77. As public health experts in correctional medical care and infectious diseases agree, Petitioners, purely by virtue of their detention at the Buffalo Federal Detention Facility, “are at grave risk of severe illness and death.” Thus, Petitioners continued detention, tantamount to material punishment, and no action short of release from detention could cure the violation of their right to reasonable safety under the Fifth Amendment.
78. As a result of this ongoing violation, Petitioners suffer prejudice, actual and substantial hardship, and irreparable injury.
79. Petitioners have no adequate remedy at law.
PRAYER FOR RELIEF WHEREFORE Petitioners request that the Court grants the following relief:
i. Assume jurisdiction over this matter; ii. Issue an unconditional writ of habeas corpus ordering that Respondents must immediately
release Petitioners under appropriate precautionary public health measures and conditions of supervision;
23

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 25 of 27

iii. Issue an injunction ordering Respondents to immediately release Petitioners under appropriate precautionary public health measures and conditions of supervision;
iv. Order that Petitioners’ continued detention at the Buffalo Federal Detention Facility violates the Due Process Clause of the Fifth Amendment;
v. Award Petitioners their costs and reasonable attorneys’ fees in this action as provided for by the Equal Access to Justice Act, 28 U.S.C. § 2412; and
vi. Grant any order and further relief that this Court deems just and proper.

Respectfully submitted,

/s/ Joseph Moravec JOSEPH MORAVEC, Esq. Prisoners’ Legal Services of New York 41 State Street, Suite M112 Albany, NY 10027 (518) 694-8699 jmoravec@plsny.org
JOHN PENG, Esq.* Prisoners’ Legal Services of New York 41 State Street, Suite M112 Albany, NY 10027 (518) 694-8699 jpeng@plsny.org
* Admission application submitted; petition for admission scheduled for 04/06/2020
/s/ Nicholas J. Phillips NICHOLAS J. PHILLIPS, Esq. Prisoners’ Legal Services of New York 14 Lafayette Square, Suite 510 Buffalo, NY 14203 (716) 844-8266 Email: nphillips@plsny.org

24

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 26 of 27
/s/ Robert F. Graziano ROBERT F. GRAZIANO, Esq. Law Office of Robert F. Graziano, Esq. 50 Fountain Place, Suite 1455 Buffalo, NY 14202 (716) 961-3262 bob@bobgraziano.com /s/ Grace Zaiman GRACE ZAIMAN, Esq. Journey’s End Refugee Services Satellite Office at Catholic Family Center 87 N. Clinton Ave. Rochester, NY 14604 (716) 480-7889 gzaiman@jersbuffalo.org /s/ Siana McLean SIANA MCLEAN, Esq. Of Counsel to Muscato & Shatkin, LLP 1520 Pine Avenue Niagara Falls, NY 14301 (716) 842-0550 sianajmlaw@gmail.com
25

Case 1:20-cv-00361 Document 1 Filed 03/25/20 Page 27 of 27

CERTIFICATE OF SERVICE I hereby certify that on March 25, 2020, I filed this Emergency Petition for a Writ of Habeas Corpus with all supporting papers to the Clerk of the U.S. District Court for the Western District of New York using its CM/ECF system. The Clerk of the Court electronically served the CM/ECF participants on this case:  Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security;  Thomas E. Feeley, Field Office Director, Buffalo Field Office Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; and  Jeffrey Searls, Acting Assistant Field Office Director and Administrator, Buffalo Federal Detention Facility And, I hereby certify that I have sent copies of this filing by electronic mail to the following participants on this case:  Daniel Moar, Assistant United States Attorney  Adam Khalil, Assistant United States Attorney  David Coriell, Assistant United States Attorney

Respectfully submitted, DATED: March 25, 2020

/s/ Joseph Moravec JOSEPH MORAVEC, Esq. Prisoners’ Legal Services of New York 41 State Street, Suite M112 Albany, NY 10027 (518) 694-8699 jmoravec@plsny.org
Attorney for Petitioners

26

JS 44 (Rev. 08/18)

Case 1:20-cv-0036C1IVDILocCumOeVntE1R-1SHFiEleEdT03/25/20 Page 1 of 3

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Vernon Jones et al. See attached.
(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)

Chad Wolf, Thomas E. Feeley, and Jeffrey Searls, all in their official capacities
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Joseph Moravec, Prisoners Legal Services of New York, 41 State Street, United States Attorney for the Western District of New York Ste M112, Albany, NY 12207 (518) 694-8699; see attached for others.

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

u 1 U.S. Government Plaintiff

u 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

u 1 u 1 Incorporated or Principal Place

u 4 u4

of Business In This State

u 2 U.S. Government Defendant

u 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

u 2 u 2 Incorporated and Principal Place of Business In Another State

u 5 u5

Citizen or Subject of a Foreign Country

u 3 u 3 Foreign Nation

u 6 u6

IV. NATURE OF SUIT (Place an “X” in One Box Only)

Click here for: Nature of Suit Code Descriptions.

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u 110 Insurance

PERSONAL INJURY

PERSONAL INJURY u 625 Drug Related Seizure

u 422 Appeal 28 USC 158

u 120 Marine

u 310 Airplane

u 130 Miller Act

u 315 Airplane Product

u 140 Negotiable Instrument

Liability

u 150 Recovery of Overpayment u 320 Assault, Libel &

& Enforcement of Judgment

Slander

u 151 Medicare Act

u 330 Federal Employers’

u 152 Recovery of Defaulted

Liability

Student Loans

u 340 Marine

(Excludes Veterans)

u 345 Marine Product

u 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

u 350 Motor Vehicle

u 160 Stockholders’ Suits

u 355 Motor Vehicle

u 190 Other Contract

Product Liability

u 195 Contract Product Liability u 360 Other Personal

u 196 Franchise

Injury

u 362 Personal Injury -

u 365 Personal Injury -

of Property 21 USC 881

Product Liability

u 690 Other

u 367 Health Care/

Pharmaceutical

Personal Injury

Product Liability

u 368 Asbestos Personal

Injury Product

Liability

PERSONAL PROPERTY

LABOR

u 370 Other Fraud

u 710 Fair Labor Standards

u 371 Truth in Lending

Act

u 380 Other Personal

u 720 Labor/Management

Property Damage

Relations

u 385 Property Damage

u 740 Railway Labor Act

Product Liability

u 751 Family and Medical

u 423 Withdrawal 28 USC 157
PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 835 Patent - Abbreviated
New Drug Application u 840 Trademark
SOCIAL SECURITY u 861 HIA (1395ff) u 862 Black Lung (923) u 863 DIWC/DIWW (405(g)) u 864 SSID Title XVI u 865 RSI (405(g))

Medical Malpractice

Leave Act

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS u 790 Other Labor Litigation

FEDERAL TAX SUITS

u 210 Land Condemnation

u 440 Other Civil Rights

Habeas Corpus:

u 791 Employee Retirement

u 870 Taxes (U.S. Plaintiff

u 220 Foreclosure

u 441 Voting

u 463 Alien Detainee

Income Security Act

or Defendant)

u 230 Rent Lease & Ejectment u 240 Torts to Land u 245 Tort Product Liability u 290 All Other Real Property

u 442 Employment

u 510 Motions to Vacate

u 443 Housing/

Sentence

Accommodations

u 530 General

u 445 Amer. w/Disabilities - u 535 Death Penalty

IMMIGRATION

u 871 IRS—Third Party 26 USC 7609

Employment

Other:

u 446 Amer. w/Disabilities - u 540 Mandamus & Other

Other

u 550 Civil Rights

u 448 Education

u 555 Prison Condition

u 560 Civil Detainee -

u 462 Naturalization Application u 465 Other Immigration
Actions

Conditions of

Confinement

u 375 False Claims Act u 376 Qui Tam (31 USC
3729(a)) u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and
Corrupt Organizations u 480 Consumer Credit u 485 Telephone Consumer
Protection Act u 490 Cable/Sat TV u 850 Securities/Commodities/
Exchange u 890 Other Statutory Actions u 891 Agricultural Acts u 893 Environmental Matters
u 895 Freedom of Information
Act u 896 Arbitration u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision u 950 Constitutionality of
State Statutes

V. ORIGIN (Place an “X” in One Box Only)

u 1 Original

u 2 Removed from

Proceeding

State Court

u 3 Remanded from Appellate Court

u 4 Reinstated or u 5 Transferred from

Reopened

Another District

(specify)

u 6 Multidistrict Litigation Transfer

u 8 Multidistrict Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
28 U.S.C. 2241 VI. CAUSE OF ACTION Brief description of cause:
Petitioners continued detention in face of COVID-19 pandemic violates 5th Amendment right to reasonable safety

VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only if demanded in complaint:

COMPLAINT:

UNDER RULE 23, F.R.Cv.P.

JURY DEMAND: u Yes u No

VIII. RELATED CASE(S)

IF ANY

(See instructions):
JUDGE

DOCKET NUMBER

DATE
03/25/2020
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
/s/ Joseph Moravec

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 1:20-cv-00361 Document 1-1 Filed 03/25/20 Page 2 of 3
PETITIONERS Vernon Jones Marckindal Jules Lyxon Chery Aldwin Junior Brathwaite Patrick Maduabuchi Nwankwo Dween Alfarel Blackman Ricardo Quintanilla-Mejia Bright Idada Falodun Philip Donga Gamdur Narain Eric C. Commissiong Md. Abu Musa Bhuyan Ibrahima Sory Sow Jubril Adelakoun Juan Carlos Lainez Mejia Croswell Wilson Jonathan Espinal-Polanco Marvens Thomas Shantadewie Rahmee Danilo Concepcion Oscar Salcedo Curry Wendell Forbes Necati Harsit

Case 1:20-cv-00361 Document 1-1 Filed 03/25/20 Page 3 of 3
Attorneys of Record:
JOSEPH MORAVEC, Esq. Prisoners’ Legal Services of New York 41 State Street, Suite M112 Albany, NY 10027 (518) 694-8699 jmoravec@plsny.org
JOHN PENG, Esq.* Prisoners’ Legal Services of New York 41 State Street, Suite M112 Albany, NY 10027 (518) 694-8699 jpeng@plsny.org
* Admission application submitted; petition for admission scheduled for 04/06/2020
NICHOLAS J. PHILLIPS, Esq. Prisoners’ Legal Services of New York 14 Lafayette Square, Suite 510 Buffalo, NY 14203 (716) 844-8266 Email: nphillips@plsny.org
ROBERT F. GRAZIANO, Esq. Law Office of Robert F. Graziano, Esq. 50 Fountain Place, Suite 1455 Buffalo, NY 14202 (716) 961-3262 bob@bobgraziano.com
GRACE ZAIMAN, Esq. Journey’s End Refugee Services Satellite Office at Catholic Family Center 87 N. Clinton Ave. Rochester, NY 14604 (716) 480-7889 gzaiman@jersbuffalo.org
SIANA MCLEAN, Esq. Of Counsel to Muscato & Shatkin, LLP 1520 Pine Avenue Niagara Falls, NY 14301 (716) 842-0550 sianajmlaw@gmail.com

 
 Case 1:20-cv-00361 Document 8 Filed 03/26/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

VERNON JONES, MARCKINDAL JULES, LYXON CHERY, ALDWIN JUNIOR BRATHWAITE, PATRICK MADUABUCHI NWANKWO, DWEEN ALFAREL BLACKMAN, RICARDO QUINTANILLA-MEJIA, BRIGHT IDADA FALODUN, PHILIP DONGA, GAMDUR NARAIN, ERIC C. COMMISSIONG, MD. ABU MUSA BHUYAN, IBRAHIMA SORY SOW, JUBRIL ADELAKOUN, JUAN CARLOS LAINEZ MEJIA, CROSWELL WILSON, JONATHAN ESPINALPOLANCO, MARVENS THOMAS, SHANTADEWIE RAHMEE, DANILO CONCEPCION, OSCAR SALCEDO, CURRY WENDELL FORBES, and NECATI HARSIT;
Petitioners, v.
CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security;
THOMAS E. FEELEY, in his official capacity as Field Office Director, Buffalo Field Office, U.S. Immigration & Customs Enforcement; and
JEFFREY SEARLS in his official capacity as Administrator, Buffalo Federal Detention Facility.
Respondents.

Civil Action No. 1:20-CV-0361
MOTION FOR TEMPORARY RESTRAINING ORDER

NOTICE OF MOTION FOR TEMPORARY RESTRAINING ORDER Petitioner, by and through undersigned counsel, hereby move the Court, pursuant to Fed. R. Civ. Proc. 65 and Local Rule 65(b)(2), for a Temporary Restraining Order that they be
1

Case 1:20-cv-00361 Document 8 Filed 03/26/20 Page 2 of 2

immediately released from Respondents’ custody. In support of this motion, the petitioner submits:
(1) A Memorandum of Law in Support of the Motion, with supporting exhibits, (2) A Proposed Order granting the Motion for a Temporary Restraining Order. Undersigned counsel has given notice of the Motion to Assistant United States Attorneys Daniel Moar, Adam Khalil, and David Coriell as required by Local Rule 65(b)(2).

Respectfully submitted, DATED: March 26, 2020

/s/ Joseph Moravec JOSEPH MORAVEC, Esq. Prisoners’ Legal Services of New York 41 State Street, Suite M112 Albany, NY 12207 (518) 694-8699 jmoravec@plsny.org
Attorney for Petitioners

2

Case 1:20-cv-00361 Document 8-1 Filed 03/26/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

VERNON JONES, MARCKINDAL JULES, LYXON CHERY, ALDWIN JUNIOR BRATHWAITE, PATRICK MADUABUCHI NWANKWO, DWEEN ALFAREL BLACKMAN, RICARDO QUINTANILLA-MEJIA, BRIGHT IDADA FALODUN, PHILIP DONGA, GAMDUR NARAIN, ERIC C. COMMISSIONG, MD. ABU MUSA BHUYAN, IBRAHIMA SORY SOW, JUBRIL ADELAKOUN, JUAN CARLOS LAINEZ MEJIA, CROSWELL WILSON, JONATHAN ESPINALPOLANCO, MARVENS THOMAS, SHANTADEWIE RAHMEE, DANILO CONCEPCION, OSCAR SALCEDO, CURRY WENDELL FORBES, and NECATI HARSIT;
Petitioners, v.
CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security;
THOMAS E. FEELEY, in his official capacity as Field Office Director, Buffalo Field Office, U.S. Immigration & Customs Enforcement; and
JEFFREY SEARLS in his official capacity as Administrator, Buffalo Federal Detention Facility.
Respondents.

Civil Action No. 1:20-CV-0361 PROPOSED ORDER

PROPOSED ORDER Pending before the Court is Petitioner’s Motion for an Temporary Restraining Order. IT IS HEREBY ORDERED that Petitioner’s motion for Temporary Restraining Order is GRANTED; and it is further
1

Case 1:20-cv-00361 Document 8-1 Filed 03/26/20 Page 2 of 2

ORDERED that on or by Tuesday, March 31, 2020 Respondents must establish appropriate public health measures for the immediate release of Petitioners from their custody; and it is further
ORDERED that on or by Wednesday, April 1, 2020, Respondents shall release Petitioners from their custody on appropriate conditions of supervision.

DATED:

____________________________________
United States District Judge
__________________, 2020 Buffalo, NY

2

 
 Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK

VERNON JONES, MARCKINDAL JULES, LYXON CHERY, ALDWIN JUNIOR BRATHWAITE, PATRICK MADUABUCHI NWANKWO, DWEEN ALFAREL BLACKMAN, RICARDO QUINTANILLAMEJIA, BRIGHT IDADA FALODUN, PHILIP DONGA, GAMDUR NARAIN, ERIC C. COMMISSIONG, MD. ABU MUSA BHUYAN, IBRAHIMA SORY SOW, JUBRIL ADELAKOUN, JUAN CARLOS LAINEZ MEJIA, CROSWELL WILSON, JONATHAN ESPINAL-POLANCO, MARVENS THOMAS, SHANTADEWIE RAHMEE, DANILO CONCEPCION, OSCAR SALCEDO, CURRY WENDELL FORBES, and NECATI HARSIT;
Petitioners, v.
CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security;
THOMAS E. FEELEY, in his official capacity as Field Office Director, Buffalo Field Office, U.S. Immigration & Customs Enforcement; and
JEFFREY SEARLS in his official capacity as Administrator, Buffalo Federal Detention Facility.
Respondents.

Civil Action No. 1:20-CV-0361
MEMORANDUM OF LAW Oral Argument Requested

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

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 2 of 40
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................................... iv
INTRODUCTION......................................................................................................................... 1
NOTICE TO RESPONDENTS ................................................................................................... 5
FACTUAL BACKGROUND ....................................................................................................... 5
I. COVID-19 POSES GRAVE RISKS OF HARM, INCLUDING SERIOUS ILLNESS OR DEATH, TO OLDER PEOPLE AND THOSE WITH UNDERLYING MEDICAL CONDITIONS. ..................................... 5
II. NEW YORK STATE IS THE MOST HIGHLY IMPACTED STATE IN THE COUNTRY AND HAS BEGUN TO TAKE EXTRAORDINARY MEASURES TO CURTAIL COVID-19’S SPREAD............................................................................................................................ 8
III. PETITIONERS FACE AN ELEVATED RISK OF CONTRACTING COVID-19 AND DEVELOPING SEVERE MEDICAL COMPLICATIONS AT THE BFDF. .......................................................................... 10
IV. PETITIONERS ARE VULNERABLE TO SERIOUS COMPLICATIONS OR DEATH IF INFECTED BY COVID-19 AND SHOULD BE RELEASED FROM CUSTODY. ......................................................... 13
LEGAL STANDARD ................................................................................................................ 19
ARGUMENT.............................................................................................................................. 20
I. PETITIONERS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR WRITS OF HABEAS CORPUS ..................................................................... 20
A. PETITIONERS’ CONTINUED DETENTION VIOLATES THEIR FIFTH AMENDMENT RIGHTS TO REASONABLE SAFETY WHILE IN CIVIL IMMIGRATION DETENTION. ................................................................................... 20
B. AS CIVIL DETAINEES, PETITIONERS ARE ENTITLED TO CONDITIONS SUPERIOR TO THOSE OF CRIMINAL DETAINEES AND NEED ONLY SHOW THAT OFFICIALS KNEW OR SHOULD HAVE KNOWN THAT OMITTED MEDICAL TREATMENTS WOULD POSE A SUBSTANTIAL RISK TO THE DETAINEES’ HEALTH........................................................................ 22
C. COVID-19’S THREAT IMPOSES A POTENTIAL HARM THAT EXCEEDS RESPONDENTS’ INTEREST IN DETAINING PETITIONERS. ........................................ 24
ii

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 3 of 40
II. PETITIONERS ARE LIKELY TO SUFFER IRREPARABLE HARM ABSENT THE TEMPORARY RESTRAINING ORDER. ........................................ 26
III. THE PUBLIC INTEREST AND BALANCE OF EQUITIES WEIGH HEAVILY IN PETITIONERS’ FAVOR..................................................................... 28
IV. RESPONDENTS HAVE THE AUTHORITY TO RELEASE DETAINED PEOPLE IN ITS CUSTODY AND REGULARLY EXERCISES THIS AUTHORITY DUE TO MEDICAL REASONS. ..................... 29
V. THE COURT HAS AUTHORITY TO ORDER PETITIONERS’ RELEASE AS THE SOLE EFFECTIVE REMEDY FOR THE CONSTITUTIONAL VIOLATION............................................................................. 31
VI. THE COURT SHOULD NOT REQUIRE PETITIONERS TO PROVIDE SECURITY PRIOR TO ISSUING A TEMPORARY RESTRAINING ORDER. ............................................................................................. 32
CONCLUSION .......................................................................................................................... 33 CERTIFICATE OF SERVICE ................................................................................................ 35
iii

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 4 of 40
TABLE OF AUTHORITIES CASES ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015) .......................................................................... 20 Ass’n of Surrogates & Supreme Court Reporters Within City of New York v. State
of N.Y., 966 F.2d 75 (2d Cir. 1992).......................................................................................... 31 Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal. 1972) ...................................................... 31 Brown v. Plata, 563 U.S. 493 (2011)........................................................................................... 31 Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972).......................................................................... 26 Charles v. Orange County, 925 F.3d 73 (2d Cir. 2019) .............................................................. 23 Clarkson Co. v. Shaheen, 544 F.2d 624 (2d Cir. 1976) ............................................................... 32 Connecticut Dep't of Envtl. Prot. v. O.S.H.A., 356 F.3d 226 (2d Cir. 2004) ......................... 20, 27 D’Alessandro v. Mukasey, 628 F.Supp.2d 368 (W.D.N.Y. 2009)............................................... 25 Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) ........................................................................... 22 Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189
(1989) ....................................................................................................................................... 21 Duran v. Elrod, 713 F.2d 292 (7th Cir. 1983) ............................................................................. 31 Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009)..................... 20, 26 Fay v. Noia, 372 U.S. 391 (1963) ................................................................................................ 31 Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005) ..................... 29 Hechavarria v. Whitaker, 358 F.Supp.3d 227 (W.D.N.Y. Jan. 16, 2019)................................... 31 Helling v. McKinney, 509 U.S. 25 (1993).............................................................................passim Hutto v. Finney, 437 U.S. 678 (1978).......................................................................................... 22 In re Request to Commute or Suspend County Jail Sentences, No. 084230 (N.J.
March 22, 2020)......................................................................................................................... 3 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) ............................................................................. 20 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012)..................................................................... 28
iv

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 5 of 40
Mitchell v. Cuomo, 748 F.2d 804 (2d Cir. 1984) ......................................................................... 28 Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222 (S.D. Ala. 1984)...................................... 31 Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980).......................................................................... 27 Rush v. Hillside Buffalo, LLC, 314 F. Supp. 3d 477 (W.D.N.Y. 2018)....................................... 19 Sajous v. Decker, No. 18-CV-2447 (AJN) (S.D.N.Y. May 23, 2018)......................................... 28 Smith v. Carpenter, 316 F.3d 178 (2d Cir. 2003) ........................................................................ 27 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ........................................................... 19 Woodhous v. Commonwealth of Virginia, 487 F.2d 889 (4th Cir. 1973) .................................... 27 Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020)................................................ 2 Youngberg v. Romeo, 457 U.S. 307 (1982). ................................................................................ 23 Zadvydas v. Davis, 533 U.S. 678 (2001) .............................................................................. passim STATUTES 8 U.S.C. § 1226...................................................................................................................... 29, 30 8 U.S.C. § 1231(a)(3);.................................................................................................................. 29 8 U.S.C. § 1182(d)(5) .................................................................................................................. 29 REGULATIONS 8 C.F.R. § 236.1(c)(8). ................................................................................................................. 29 8 C.F.R. § 212.5(b)(1)............................................................................................................ 29, 30
v

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 6 of 40
INTRODUCTION
The novel coronavirus, COVID-19, has created a pandemic and disrupted daily functioning
around the world. In only a few months, 458,927 people worldwide have been diagnosed with
COVID-19 and 20,806 people have died from the virus.1 In New York State, the epicenter of the
virus in the United States,2 30,811 people have been diagnosed with and 285 people have died
from, COVID-19.3 The Centers for Disease Control and Prevention (“CDC”) warns that “[o]lder
adults and people of any age who have serious underlying medical conditions may be at a higher
risk for more serious complications from COVID-19.”4 Underlying medical conditions giving rise
to higher risks of severe illness or death from COVID-19 include lung disease, moderate to severe
asthma; heart disease; immunodeficiency, including cancer; diabetes; and severe obesity.5
Complications, meanwhile, include pneumonia in both lungs, organ failure, and death.6 The CDC
reports that approximately 20-30% of hospitalized patients of COVID-19 require intensive care
1 Numbers current as of March 25, 2020 at 3:26 p.m. EST. See Johns Hopkins U. of Med., Coronavirus Resource Center, https://coronavirus.jhu.edu/ (last accessed Mar. 25, 2020).
2 See Jesse McKinley, Coronavirus in N.Y.C.: Region is Now an Epicenter of the Pandemic, N.Y. TIMES, https://www.nytimes.com/2020/03/22/nyregion/Coronavirus-new-Yorkepicenter.html.
3 Numbers current as of March 25, 2020 at 3:38 p.m. EST. COVID Tracking Proj., Most Recent Data, https://covidtracking.com/data/ (last accessed Mar. 25, 2020).
4 CTRS. FOR DISEASE CONTROL AND PREVENTION (“CDC”), People Who Are At Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/people-athigher-risk.html (last accessed Mar. 23, 2020); see also CDC, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) – United States, February 12-March 16, 2020 (Mar. 18, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm (indicating an exponential increase in fatality rates for older patients of COVID-19).
5 See Id. 6 MAYO CLINIC, Coronavirus Disease 2019 (COVID-19),
https://www.mayoclinic.org/diseases-conditions/coronavirus/symptoms-causes/syc20479963 (last accessed Mar. 22, 2020).
1

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 7 of 40
for respiratory support.7 Critically ill patients have required high-flow oxygen therapy, mechanical ventilation, and advanced organ support, among other intensive medical care procedures.8 A viable vaccine for COVID-19 remains up to eighteen months away and the pandemic “will probably have peaked and declined before a vaccine is available.”9
Congregate settings – like the Buffalo Federal Detention Facility (“the BFDF” or “Batavia”) – are environments where people live, eat, and sleep in close proximity with one another. Such environments produce heightened risks for the spread of COVID-19 because inmates and detainees cannot achieve the social distancing needed to prevent the spread of COVID-19. See Declaration of Dr. Marc Stern, M.D. [hereinafter, “Stern Decl.”]. Dr. Robert B. Greifinger, an independent consultant on health care within prisons and detention centers, stresses that “[m]any . . . detention facilities lack adequate medical care infrastructure to address the spread of infectious disease and treatment of high-risk people in detention” and that “[t]he release of highrisk individuals is a key part of a [public] risk mitigation strategy.” Declaration of Robert B. Greifinger, MD ¶¶ 19, 22 [hereinafter, “Greifinger Decl.”].
It is only a matter of time before this global pandemic reaches inside the walls of the BFDF. Fearing the implications if COVID-19 were to infect a civil detention facility, some Courts have already begun ordering the release of noncitizens in civil detention, see e.g., Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020), in which the Ninth Circuit took an extraordinary step
7 CDC, Clinical Care, https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html#foot09 (last accessed Mar. 22, 2020).
8 See Id. 9 Laura Spinney, When Will a Coronavirus Vaccine be Ready, THE GUARDIAN (Mar. 20,
2020), https://www.theguardian.com/world/2020/mar/20/when-will-a-coronavirus-vaccinebe-ready (quoting professor of infectious diseases, Annelies Wilder-Smith).
2

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 8 of 40
of sua sponte ordering the release of a detainee. The Court cited as its justification the “rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers.” Id. Similarly, the United Kingdom recently released nearly three hundred immigration detainees10 while New Jersey has faced fears of similarly grave consequences in its jails and adopted the recommendation of public health officials to release nearly 1,000 inmates in county jails. See In re Request to Commute or Suspend County Jail Sentences, No. 084230 (N.J. March 22, 2020) [annexed as Exh. B to Motion]; see Tracey Tully, 1000 Inmates Will Be Released From N.J. Jails to Curb Coronavirus Risk, N.Y. TIMES (March 23, 2020).11
Against the backdrop of so monumental a crisis stand Petitioners, whose age and underlying health conditions make them particularly susceptible to both contract and develop complications from COVID-19. In the case before the Court, Petitioners are all individuals held in civil immigration detention at Batavia who face extraordinary risk of serious health complications or death if they contract COVID-19, which they are likely to do if they remain detained. Like the populations identified by the N.Y.C. Board of Correction for immediate release from Rikers Island jail, Petitioners are either over the age of fifty or have an underlying medical condition(s) making them more susceptible to the risks of contracting and succumbing to COVID19.
10 See Diane Taylor, Home Office Releases 300 From Detention Centres Amid Covid-19 Pandemic, THE GUARDIAN (Mar. 21, 2020), https://www.theguardian.com/uknews/2020/mar/21/home-office-releases-300-from-detention-centres-amid-covid-19pandemic.
11 https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html.
3

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 9 of 40
Petitioners seek the extraordinary remedy of a temporary restraining order demanding their immediate release because time is absolutely of the essence. Genesee County already has two positive diagnoses of COVID-19 and has declared a state of emergency,12 while the Wende Correctional Facility in Alden, New York – through which the New York Department of Corrections (“DOCCS”) regularly transfers inmates moving between DOCCS and ICE custody – has confirmed at least two positive cases.13 The virus is rapidly getting closer to the BFDF by the minute, and once it reaches the facility, Petitioners will be in grave danger.
Medical experts agree it is not a case of if, but rather when Batavia will be hit by this pandemic. They also agree that traditional measures to protect Petitioners from this contagion are likely to fail in a detention setting. Consequently, the dangers posed to Petitioners if they remain in detention at the BFDF amidst the outbreak are “so grave that it violates contemporary standards of decency” to expose them to such a risk. Helling v. McKinney, 509 U.S. 25, 36 (1993). The severity of the outbreak and potential harm to Petitioners dictate that continued civil detention no longer comports with the narrow and non-punitive circumstances that permit civil immigration detention, and rise to the level of a substantive due process violation that this Court must remedy. See e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Accordingly, for the reasons discussed below, Petitioners move for a temporary restraining order demanding their immediate release from detention under appropriate public health measures and conditions of release.
12 Harold McNeil, First COVID-19 Case Confirmed in Genesee County, BUFFALO NEWS (Mar. 17, 2020), https://buffalonews.com/2020/03/17/first-covid-19-case-confirmed-in-geneseecounty/.
13 See Joe Mahoney, At New York Prison, Harvey Weinstein Put in Isolation After Contracting Virus, NIAGARA GAZETTE (Mar. 22, 2020), https://www.niagara-gazette.com/covid-19/atnew-york-prison-harvey-weinstein-put-in-isolation-after/article_26e38374-6c7d-11ea-9f8a3b2c09e7817d.html.
4

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 10 of 40
NOTICE TO RESPONDENTS Undersigned counsel Joseph Moravec first contacted the U.S. Attorney’s Office for the Western District of New York by email on March 22, 2020 and by phone on March 23, 2020 to advise that office of the present conditions being observed at the Buffalo Federal Detention Facility, the dangers posed by the COVID-19 virus, and the need for immediate action to protect particularly vulnerable detainees. On March 25, 2020, Mr. Moravec spoke with Assistant United States Attorneys Daniel Moar, Adam Khalil, and David Coriell to explain the emergency reasons requiring Petitioners to seek a temporary restraining order and to give notice that it would be filed later in the day or overnight. In addition, on the morning of March 26, 2020, Mr. Moravec emailed a copy of the Petition seeking a Writ of Habeas Corpus and Complaint for Injunctive Relief and this Motion for a Temporary Restraining Order, along with all supporting papers, exhibits, and declarations, to Assistant United States Attorneys Daniel Moar, Adam Khalil, and David Coriell. Thus, Respondents’ counsel have been notified under Local Rule 65(b)(2).
FACTUAL BACKGROUND I. COVID-19 POSES GRAVE RISKS OF HARM, INCLUDING SERIOUS ILLNESS
OR DEATH, TO OLDER PEOPLE AND THOSE WITH UNDERLYING MEDICAL CONDITIONS. COVID-19 is a respiratory illness that mainly spreads through person-to-person contact and contact with surfaces or objects that have the virus on it.14 As of March 25, 2020, 458,927 people worldwide have been diagnosed with COVID-19 and 20,806 have died from COVID-19
14 See CDC, What You Need to Know About Coronavirus Disease 2019 (COVID-19 1 (2020), available at, https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncovfactsheet.pdf.
5

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 11 of 40
related complications.15 Public health experts predict COVID-19 cases to rise exponentially in the coming months and conditions to worsen as healthcare infrastructure and medical resources are strained by growing needs for treatment.16
The risks of developing serious complications from a COVID-19 infection are heightened for people older than the age of fifty and people of any age who have underlying medical conditions, including lung disease; heart disease; chronic liver or kidney diseases, including hepatitis and dialysis patients; diabetes; epilepsy; hypertension; compromised immune systems, such as from cancer, HIV, or autoimmune disease; blood disorders, including sickle cell disease; inherited metabolic disorders; stroke; developmental delay; and pregnancy. See Declaration of Dr. Jonathan Louis Golob [hereinafter, “Golob Decl.”]. Signs and symptoms of COVID-19 may appear from two to fourteen days after exposure. See Declaration of Joe Goldenson, MD at ¶ 8 [hereinafter, “Goldenson Decl.”]. Common symptoms include fever, cough, and shortness of breath or difficulty of breathing. Id. In more serious cases, however, COVID-19 attacks an infected person’s respiratory system and can result in life-threatening pneumonia, marked by a filling of the lungs with inflammatory material and an inability to circulate enough oxygen into the bloodstream.17 Following development of viral pneumonia, a patient is exposed to the risks of
15 Coronavirus Resource Center, supra note 1. 16 See James Glanz et al., Coronavirus Could Overwhelm U.S. Without Urgent Action,
Estimates Say, N.Y. TIMES (Mar. 20, 2020), https://www.nytimes.com/interactive/2020/03/20/us/coronavirus-model-us-outbreak.html. 17 See Graham Readfearn, Coronavirus: What Happens to People’s Lungs if They Get Covid19?, THE GUARDIAN (Mar. 22, 2020), https://www.theguardian.com/world/2020/mar/22/coronavirus-what-happens-to-peopleslungs-when-they-get-covid-19.
6

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 12 of 40
secondary infections.18 The virus can further cause severe damage to lung tissue, which requires an extensive period of rehabilitation and, in some cases, can cause a permanent loss of respiratory capacity. See Golob Decl. at ¶ 7.
COVID-19 may also target a patient’s heart muscle and cause myocarditis, an inflammation of the heart. Id. Myocarditis can reduce a heart’s ability to pump, leading to rapid or abnormal heart rhythms in the short term, and heart failure that limits exercise tolerance and regular functioning in the long term. Id. Emerging research on the virus suggests that COVID-19 may also trigger an over-response by an infected person’s immune system, known as cytokine release syndrome, which can cause widespread and permanent damage to the patient’s other organs or cause neurologic injury. Id.
Most people who fall into the higher risk categories for COVID-19 are likely to require advanced support, including positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. Id. at ¶ 6. These procedures require highly specialized equipment that are in limited supply and sizable teams of nurses, respiratory therapists, and intensive care physicians. Id. Local and rural hospital systems are susceptible to being overwhelmed by a cluster of incoming patients who all require ventilation resources at the same time.19 Due to the trajectory of COVID-19’s spread and the limitations of the existing medical care infrastructure, public health experts have emphasized that social distancing is the only viable option for mitigating the virus’s damage.20 Projections published by researchers from the Imperial College London show that even
18 See What Happens to People’s Lungs, supra note 17. 19 See Katelyn Newman, Flattening the Coronavirus Curve and the Importance of Social
Distancing, U.S. NEWS (Mar. 18, 2020), https://www.usnews.com/news/healthiestcommunities/articles/2020-03-18/coronavirus-how-social-distancing-can-flatten-the-curve. 20 See Id.
7

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 13 of 40
with the implementation of stringent mitigation strategies, such as orders for nationwide social
distancing, home isolation, and continued school and university closures, the death toll in the
United States could reach 1.1 million people.21 Without such actions, the death toll could reach
upwards of 2.2 million people.22
II. NEW YORK STATE IS THE MOST HIGHLY IMPACTED STATE IN THE COUNTRY AND HAS BEGUN TO TAKE EXTRAORDINARY MEASURES TO CURTAIL COVID-19’S SPREAD.
As of March 25, 2020, New York State has reported 30,811 confirmed cases of COVID-
19 and 285 deaths, representing the nation’s most-impacted state.23 The continuing and rapid
spread of COVID-19 throughout New York led Governor Cuomo to impose a ten-part plan heavily
restricting residents’ movements and curtailing social activities.24 In response, sweeping measures
are being taken to fifty-six detainees from Rikers Island due to COVID-19.25 On March 22, Mayor
de Blasio announced that twenty-three more detainees were set to be released and the city is
reviewing two hundred additional inmates for possible release.26 Officials’ decision to release
vulnerable detainees from Rikers Island jail and, possibly, the New York State prisons. In looking
21 William Wan et al., Coronavirus Will Radically Alter the U.S., WASHINGTON POST (Mar. 19, 2020), https://www.washingtonpost.com/health/2020/03/19/coronavirus-projections-us/.
22 Id. 23 Most Recent Data, supra note 3. 24 N.Y. OFF. OF THE GOVERNOR, Governor Cuomo Signs the ‘New York State on PAUSE’
Executive Order, (Mar. 20, 2020), https://www.governor.ny.gov/news/governor-cuomosigns-new-york-state-pause-executive-order. 25 See Priscilla DeGregory & Vincent Barone, Officials Approve Release of More Than 50 Rikers Inmates Over Coronavirus Fears, N.Y. POST (Mar. 21, 2020), https://nypost.com/2020/03/21/officials-approve-release-of-more-than-50-rikers-inmatesover-coronavirus-fears/. 26 Michael Rezendes & Robin McDowell, 38 Positive for Coronavirus in NYC Jails, Including Rikers, ASSOCIATED PRESS (Mar. 22, 2020), https://apnews.com/54dbc9d47f62cf0c0240314310cfe909.
8

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 14 of 40
closely at Rikers Island, Dr. Rachael Bedard, a geriatrician who works at the Rikers Island jail,
concludes that social distancing efforts within the facility would not stem the spreading of the virus
and that “[t]he only meaningful public health intervention here is to depopulate the jails
dramatically.”27 In assessing a jail setting, she notes:
It has just been incredibly clear to us—as it always is—that the jails are not a closed system. They are vulnerable to whatever is happening in the city. . . . When [detainees] are moved from one location to another, a person has to take them there. That person has to open the door for them, and they have to be let through and be walked down the hallway. When they are moved from one facility to another, somebody has to touch them and put cuffs on them. When we bring them their food, workers go from housing area to housing area with trays that have to be distributed. When we give them their medication, that has to be done for them. They can’t do it for themselves. And so, if you think about how many excess human contacts that is, even compared to something like a shelter setting, you can imagine why viral spread in this environment is extra dangerous.28 Dr. Bedard concluded that “a jail is a perfect setup for an outbreak”29 and the BFDF is in
essentially the same posture as Rikers. It houses more than 600 civil immigration detainees every
day while security officers, medical and administrative staff, attorneys, family, and all the
personnel from the Batavia Immigration Court come in and out of the facility. Thus, as the number
of infected in the surrounding community grows, it is only a matter of time before the BFDF faces
the same reality as Rikers. But in the case of Batavia, there is even less optimism that the crisis
will be averted. See Sepúlveda & Weprin Letter, Dkt. No. 2 at Exh. D (Opining that “[a]nyone
27 Jan Ransom & Alan Feuer, ‘A Storm is Coming’: Fears of an Inmate Epidemic as the Virus Spreads in the Jails, N.Y. TIMES (Mar. 20, 2020), https://www.nytimes.com/2020/03/20/nyregion/nyc-coronavirus-rikers-island.html.
28 Id. 29 Id.
9

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 15 of 40
who can be safely sent out to the community and who has a family or a stable living situation to go to should be immediately considered for release regardless of the length of his or her remaining sentence” [but] the Governor should not to release “those individuals who will be sent to ICE detention” because “ICE has yet to issue guidance on what safety measures, if any, have been implemented in its detention facilities in response to the COVID-19 outbreak.”). Specifically Senator Sepúlveda and Assemblyman Weprin voiced their concerns that the BFDF “has so far implemented minimal safety precautions to safeguard the health of ICE detainees, staff, and visitors there[,]” id., necessitating the release of state inmates rather than risk transferring them to ICE custody in Batavia.30 III. PETITIONERS FACE AN ELEVATED RISK OF CONTRACTING COVID-19
AND DEVELOPING SEVERE MEDICAL COMPLICATIONS AT THE BFDF. Immigration detention facilities generally “have . . . greater risk of infectious spread because of conditions of crowding, the proportion of vulnerable people detained, and often scant medical care resources.” Greifinger Decl. at ¶ 11. Absent a vaccine, which will not be available for a significant time,31 public health officials identify social distancing as the only viable option to mitigate the spread of the virus and reduce the risk of contracting COVID-19.32 Here, Petitioners live in a congregate environment – living, sleeping, and eating in close proximity with one another 100% of the time. They share toilets, sinks, and showers, usually without disinfection between use. Greifinger Decl. at ¶ 11. Food preparation and food service is similarly communal with little opportunities for surface disinfection. Id. As a result, Petitioners
30 See also Ransom & Feuer, supra note 27 (quoting chief physician of the Rikers Island jail complex, Ross MacDonald).
31 See Spinney, supra note 9. 32 See Newman, supra note 19.
10

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 16 of 40
face particularly acute risks of contracting COVID-19 because it is impossible for them to adopt the safety and containment recommendations of public health officials. Stern Decl. at ¶ 7. Some experts even retort that social distancing “is an oxymoron in congregate settings” because Petitioners have so severely limited options when trying to create distance between each other. Exh. B, Allen & Rich Letter at 4.
In their letter to congressional leaders, Drs. Allen and Rich further explained that the extensive transfer of individuals throughout the immigration detention network could cause COVID-19 to disseminate rapidly throughout the entire system and cause devastating consequences to public health. Id. at 3; see e.g., Petition, Dkt. No. 1 at ¶ 44 (noting that Petitioner Juan Carlos Lainez Mejia was recently transferred from a different immigration detention facility that now has positive cases). In these settings, the risk is not only limited to occupants of the detention facility but also to the surrounding communities because “[detainees] 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 . . . .” Exh. B, Allen & Rich Letter at 3. The potential result of a cluster of COVID-19 cases can quickly overwhelm the capacity and resources of a local hospital:
[A] detention center with a rapid outbreak could result in multiple detainees—five, ten or more—being sent to the local community hospital where there may only be six or eight ventilators over a very short period. As they fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc.). Id. Social distancing through the release of detainees who face higher risks of developing serious complications from COVID-19 contractions is a necessary step towards negating the
11

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 17 of 40
potentiality of these individuals needing scarce local medical care resources. “Reassessing the security and public health risks [of detainees] . . . will save lives of not only those detained, but also detention staff and their families, and the community-at-large.” Exh. B, Allen & Rich Letter at 6.
In addition to the overwhelming risk they face just by occupying congregant spaces, Petitioners detained at the BFDF are subjected to additional and specific risks due to the continued flow of people into and out of the facility. The Batavia Immigration Court, which is housed within the BFDF, continues to operate on a regular basis, leading to the daily entry and exit of immigration judges, court personnel, facility personnel, attorneys, and other required visitors.33 While Immigration and Customs Enforcement (“ICE”) has issued new screening procedures for visitors, see ICE Guidance on COVID-19, Dkt. No. 2, Exh. J, the continued operation of the Batavia Immigration Court necessarily compromises the prevailing recommendations from public health officials and Governor Cuomo’s executive order to reduce travel and practice social distancing. ICE’s directive, as Dr. Goldenson attests, critically fails to “address important public health issues such as social distancing, hand washing, testing, or precautions for high risk individuals.” Goldenson Decl. at ¶ 12.
Petitioners at BFDF further face the risk of transmission from an incoming detainee to the facility. The BFDF regularly receives immigrant transfers from the Wende Correctional Facility – for transfers between DOCCS and ICE custody – and the Clinton County Jail, as well as from facilities throughout the United States. As of the time of filing, Clinton County has confirmed ten
33 See Dara Lind, Immigration Courts are Telling Employees to Come to Work – Ignoring Health Risks and Local Shelter-in-Place Orders, PROPUBLICA (Mar. 20, 2020), https://www.propublica.org/article/immigration-courts-are-telling-employees-to-come-towork-ignoring-health-risks-and-local-shelter-in-place-orders.
12

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 18 of 40
positive diagnoses for COVID-19.34 The confirmation of positive COVID-19 cases at Wende Correctional Facility further elevates the chances of a COVID-19 transmission to a detained individual at the BFDF and a subsequent outbreak. So long as transfers of custody continue between DOCCS and ICE, Petitioners will continue to be subjected new exposure risks from people outside of the current detained population at Batavia. IV. PETITIONERS ARE VULNERABLE TO SERIOUS COMPLICATIONS OR
DEATH IF INFECTED BY COVID-19 AND SHOULD BE RELEASED FROM CUSTODY. All Petitioners face significantly higher risks of developing serious medical complications or dying from a COVID-19 infection than the general population. They are either older than fifty years old and/or have underlying medical conditions or a history of illness that would exacerbate the impact of a COVID-19 infection. They are all detained at the BFDF as they await adjudications of their civil immigration cases.35 Vernon Jones is a 39-year-old native and citizen of Jamaica. Mr. Jones has been detained at the BFDF since September 2019. Mr. Jones has struggled with epilepsy and seizures since 2006. Mr. Jones is critically vulnerable to COVID-19 because of his chronic epilepsy. Marckindal Jules is a 46-year-old native and citizen of Haiti. Mr. Jules has been detained by ICE at the BFDF since March 2019. Mr. Jules is pre-diabetic and tests of his liver function have returned abnormal results. Mr. Jules also lives with an unspecified mental illness for which
34 Numbers current as of March 25, 2020 at 1:46 p.m. EST. See N.Y. DEP’T OF HEALTH, County by County Breakdown of Positive Cases, https://coronavirus.health.ny.gov/countycounty-breakdown-positive-cases (last accessed Mar. 25, 2020).
35 Petitioner Dween Blackman has been ordered removed from the United States and is no longer challenging his removal. However, Respondents have so far been unable to secure travel documents to remove him to his native country. Petitioner Marvens Thomas won termination of his removal case on March 25, 2020, but the Department of Homeland Security reserved appeal and he remains in custody. 13

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 19 of 40
he takes medication. Mr. Jules is critically vulnerable to COVID-19 because of his pre-diabetic condition.
Lyxon Chery is a 60-year-old native and citizen of Haiti. He has been detained by ICE at the BFDF since December 2017. Mr. Chery has been diagnosed with moderate to severe PostTraumatic Stress Disorder and Major Depressive Disorder stemming from past trauma he suffered in Haiti. Mr. Chery also struggles with high blood pressure. He takes daily medication for both his mental and physical health. Mr. Chery is critically vulnerable to COVID-19 because of his age and medical conditions.
Aldwin Brathwaite is a 58-year-old native and citizen of Trinidad and Tobago. Mr. Brathwaite has been detained by ICE at the BFDF since January 2019. Mr. Brathwaite has recently been diagnosed with prostate cancer and was in the process of obtaining a treatment plan. Mr. Brathwaite is critically vulnerable to COVID-19 because of his age and his significant health issues.
Patrick Maduabuchi Nwanwko is a 53-year old native and citizen of Nigeria. Mr. Nwankwo has been detained by ICE since June 2018. Mr. Nwankwo is pre-diabetic and takes medication for high blood pressure. Mr. Nwankwo is critically vulnerable to COVID-19 because of his age and his medical conditions.
Dween Afarel Blackman is a 26-year old native of Suriname and citizen of Guyana. Mr. Blackman has been detained by ICE since December 2019. Mr. Blackman suffers from asthma, ulcerative colitis, and an undiagnosed gastrointestinal illness, and because of his respiratory illness and gastrointestinal complications, he has a weakened immune system. Mr. Blackman is critically vulnerable to COVID-19 because of his medical conditions.
14

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 20 of 40
Ricardo Quintanilla-Mejia is a 42-year old native and citizen of El Salvador. Mr. Quintanilla-Mejia has been detained by ICE since October 2016. Mr. Quintanilla-Mejia is diabetic, and also suffers from post-traumatic stress disorder, chronic pancreatitis, metabolic syndrome, blood abnormalities, chronic abdominal pain an musculoskeletal pain resulting from injuries sustained while in custody. Mr. Quintanilla-Mejia takes medications to treat some of these conditions in addition to medication for insomnia and PTSD. Mr. Quintanilla-Mejia is critically vulnerable to COVID-19 because of his medical conditions.
Bright Idada Falodun is a 38-year old native of Nigeria.36 Mr. Falodun has been detained by ICE at Batavia since August 2015. Mr. Falodun has a history of schizophrenia, depression, rhabdomyolysis, acute kidney injury/acute tubular necrosis, hyperkalemia, metabolic acidosis, and transaminitis. Mr. Falodun is critically vulnerable to COVID-19 because of his medical conditions.
Philip Donga is a 31-year old native and citizen of Sudan. Mr. Donga has been detained at Batavia since December 2018. Mr. Donga has a history of traumatic subdural hematoma as well as seizure disorder, vertigo, and dizziness. He has a long history of tobacco use. He was also identified as at increased risk for cardiovascular disease and is monitored for hyperlipidemia. Mr. Donga has a history of surgery related to his traumatic brain injury and separately for gun-shot wounds sustained in his home country. Mr. Donga is critically vulnerable to COVID-19 because of his medical conditions, history of smoking, and heightened risk of cardiovascular disease.
36 Mr. Falodun has been ordered removed to Nigeria, but is challenging his order of removal before the Second Circuit Court of Appeals, arguing that he is a citizen of the United States. See Falodun v. Barr, 17-1813 (2d Cir.) (pending). 15

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 21 of 40
Gamdur Narain is a 59-year old native and citizen of India. Mr. Narain has been detained by ICE in excess of two years. Mr. Narain is critically vulnerable to COVID-19 because of his age.
Eric C. Commissiong is a 58-year old native and citizen of Trinidad and Tobago. Mr. Commissiong suffers from high blood pressure. Mr. Commissiong is critically vulnerable to COVID-19 because of his age and high blood pressure.
Md. Abu Musa Bhuyan is a 56-year old native and citizen of Bangladesh. He suffers from a tumor on his head. Mr. Musa Bhuyan is critically vulnerable to COVID-19 because of his age and medical conditions.
Ibrahima Sory Sow is a 53-year old native and citizen of Guinea. Mr. Sow suffers from an immune deficiency that makes him especially vulnerable to COVID-19. Therefore, Mr. Sow is critically vulnerable to COVID-19 because of his age and medical conditions.
Jubril Adelakoun is a 43-year old native and citizen of Nigeria. Mr. Adelakoun has been detained by ICE since March 2018. He is pre-diabetic and suffers from hypertension. Mr. Adelakoun is critically vulnerable to COVID-19 because of his medical conditions.
Juan Carlos Lainez Mejia is a 38-year-old native and citizen of Honduras. He has been detained by ICE since December 2017, but was recently moved to Batavia from Bergen County Detention Center in New Jersey. Mr. Lainez Meija is HIV-positive. As of December 2019, his HIV status was only partially controlled by anti-retroviral medication, leaving his immune system compromised. Mr. Lainez Mejia is critically vulnerable to COVID-19 because of his medical conditions.
16

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 22 of 40
Croswell Wilson is a 51-year old native and citizen of Jamaica. Mr. Wilson has been detained at BFDF since March 2019. Mr. Wilson has a history of smoking. Mr. Wilson is critically vulnerable to COVID-19 because of his medical history and history of smoking.
Jonathan Espinal-Polanco is a 37-year-old native and citizen of the Domincan Republic. Mr. Espinal-Polanco has been detained by ICE at Batavia since November 2019. Mr. EspinalPolanco struggles with asthma, schizophrenia, morbid obesity, and hyperlipidemia. As a consequence of his asthma and other conditions, Mr. Espinal-Polanco is critically vulnerable to COVID-19 because of his medical conditions.
Marvens Thomas is a 27-year old native and citizen of Haiti. Mr. Thomas has been detained by ICE at Batavia since July 2019. Mr. Thomas has a history of schizophrenia, high blood pressure, and seizures. Mr. Thomas is critically vulnerable to COVID-19 because of his medical conditions.
Shantadewie Rahmee is a 48-year-old native and citizen of Surimame. Ms. Rahmee has been detained by ICE at Batavia since October 2019. Ms. Rahmee struggles with asthma and has her whole adult life. Ms. Rahmee is critically vulnerable to COVID-19 because of her respiratory condition.
Danilo Concepcion is a 42- year-old native and citizen of the Dominican Republic. Mr. Concepcion has been detained by ICE at Batavia since approximately April 2019. Mr. Concepcion is a Type I diabetic. Mr. Concepcion is critically vulnerable to COVID-19 because of his diabetes.
Oscar Salcedo is a 57-year old native and citizen of the Dominican Republic. He has lived in the United States for 52 years since he was 5 years old. Mr. Salcedo is critically vulnerable to COVID-19 because of his age.
17

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 23 of 40
Curry Wendell Forbes is a 42-year old native and citizen of Turks and Caicos and has lived in the United States since he was less than a year old. Mr. Forbes suffers from schizophrenia, diabetes, hypertension, and hypothyroidism. Mr. Forbes is critically vulnerable to COVID-19 because of his medical conditions.
Necati Harsit is a 58-year-old native and citizen of Turkey. Mr. Harsit has been detained by ICE at Batavia since November 2019. He struggles with schizophrenia, diabetes, and had a heart attack and an asthma attack in 2016. Mr. Harsit is critically vulnerable to COVID-19 because of his age and medical conditions.
Collectively, in addition to several at risk due to their age, Petitioners suffer from a broad range of serious medical conditions that make them susceptible to both serious complications or death if any one of them were to contract COVID-19. For example, Petitioners Vernon Jones, Marvens Thomas, and Philip Donga suffer from epilepsy or seizures, which places them at greater “risk of developing more severe illness if they are exposed to COVID-19” according to the Epilepsy Foundation.37 Petitioners Dween Blackman, Jonathan Espinal-Planco, and Shantadewie Rahmee have asthma and Petitioners Croswell Wilson and Philip Donga have a history of smoking, which the the CDC reports places them at “higher risk of getting very sick from COVID-19 [because] COVID-19 can affect [the] respiratory tract (nose, throat, lungs), cause an asthma attack, and possibly lead to pneumonia and acute respiratory disease.”38 Eight petitioners suffer from diabetes, prediabetes, or other renal complications, and the National Kidney Foundation reports
37 EPILEPSY FOUNDATION, Concerns About COVID-19 (Coronavirus) and Epilepsy (March 23, 2020), https://www.epilepsy.com/article/2020/3/concerns-about-covid-19-coronavirus-andepilepsy.
38 CDC, People with Asthma and COVID-19, (last accessed March 25, 2020) https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/asthma.html.
18

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 24 of 40
that “[o]lder adults and people with kidney disease or other severe chronic medical conditions seem to be at higher risk for more serious Coronavirus illness.”39 Petitioners Lyxon Chery, Eric Commissiong, and Marvens Thomas all suffer from high blood pressure and Petitioners Aldwin Brathwaite and Md. Abu Musa Bhuyan have cancer. The American Heart Association reports that “older adults with heart disease appear to be at a higher risk of getting COVID-19” and “people of any age with serious underlying medical condictions – such as diabetes, cancer, or kidney failure – may face a higher risk of complications if they do get infected.”40 Together, Petitioners all fall into one or several high risk categories, and if forced to remain detained at the Buffalo Federal Detention Facility, are likely to face grave consequences when exposed to the COVID-19 virus.
LEGAL STANDARD A party seeking a temporary restraining order may do so in two separate ways. See Rush v. Hillside Buffalo, LLC, 314 F. Supp. 3d 477, 484 (W.D.N.Y. 2018) (“[I]n the Second Circuit, the standard for a temporary restraining order is the same for a preliminary injunction.”) (internal quotation marks and citations omitted). First, the party may “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of the preliminary relief, that the balance of equities tip in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Second, the party may “show irreparable harm and either a likelihood of success on the merits or ‘sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward
39 NATIONAL KIDNEY FOUNDATION, Be Prepared: Kidney Patient Prep for Coronavirus (accessed March 19, 2020), https://www.kidney.org/contents/be-prepared-kidney-patientprep-coronavirus.
40 AMERICAN HEART ASSOCIATION, Coronavirus Questions (last accessed March 25, 2020), https://www.heart.org/en/coronavirus/coronavirus-questions.
19

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 25 of 40
the party requesting the preliminary relief.” ACLU v. Clapper, 785 F.3d 787, 825 (2d Cir. 2015)
(internal quotation marks and citation omitted).
Under the four-factor test, “[a] showing of irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction.” Faiveley Transport Malmo AB v.
Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citation omitted).
An alleged constitutional violation constitutes per se irreparable harm. See e.g., Connecticut Dep't
of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged
violation of a constitutional right triggers a finding of irreparable injury.”) (internal quotation
marks and citations omitted); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“[An] alleged
violation of a constitutional right . . . triggers a finding of irreparable harm.”) (emphasis in
original).
ARGUMENT
I. PETITIONERS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR WRITS OF HABEAS CORPUS a. PETITIONERS’ CONTINUED DETENTION VIOLATES THEIR FIFTH AMENDMENT RIGHTS TO REASONABLE SAFETY WHILE IN CIVIL IMMIGRATION DETENTION. The government has an affirmative duty to provide conditions of reasonable health and
safety to the people it holds in its custody. In Deshaney v. Winnebago County Department of
Social Services, the Supreme Court articulated:
[W]hen the State takes a person into its custody and holds them there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing . . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs— e.g., food, clothing, shelter, and medical care—it transgresses the substantive limits on state action set by the Eighth Amendment . . . .
20

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 26 of 40
Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989) (emphasis added).
The Eighth Amendment’s prohibition against cruel and unusual punishment applies to both existing and impending conditions of harm. See Helling, 509 U.S. at 33. “The [Eighth] Amendment . . . requires that inmates be furnished with the basic human needs, one of which is ‘reasonable safety.’” Id. Exposure to “toxic or similar substances” constitutes one such circumstance where “the Amendment’s protection would be available even if the effects of exposure might not be manifested for some time.” Id. at 34.
The Court also recognized that an injunction to correct a violation of Petitioners’ rights to reasonable safety might be appropriate even when no injury has yet occurred. Helling, 509 U.S. at 33 (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition . . . on the ground that nothing yet has happened to them.”). As medical experts are reasonably certain an outbreak at Batavia is imminent, Petitioners should not be required to wait until they have the virus to bring this action.
Specifically in Helling, the Supreme Court provided an Eighth Amendment remedy to prisoners who faced a risk of contracting a communicable disease. The Court stated that the risk of infectious maladies and venereal disease within a crowded detained setting were enough to substantiate a claim for Eighth Amendment protection even if it is not proven or alleged that “the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.” Id. at 33. The Court further emphasized:
[T]here may be situations in which exposure to toxic or similar substances would present a risk of sufficient likelihood or magnitude—and in which there is a sufficiently broad consensus that exposure of anyone to the substance should therefore be prevented—that the Amendment’s protection would be available
21

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 27 of 40
even if the effects of exposure might not be manifested for some time. Helling, 509 U.S. at 34 (internal quotation and citation omitted) (citing Hutto v. Finney, 437 U.S. 678 (1978). In this case, Petitioners are at a serious risk of severe illness or death from COVID-19 because of their age or their underlying medical conditions. As the Court recognized in Helling, the Eighth Amendment requires that Petitioners be provided the guarantee of “reasonable safety” while they are held in government custody. If the government cannot adequately provide Petitioners with assurances of “reasonable safety” under detention, then the appropriate remedy would be to release Petitioners from detention where they could obtain such assurances. b. AS CIVIL DETAINEES, PETITIONERS ARE ENTITLED TO CONDITIONS SUPERIOR TO THOSE OF CRIMINAL DETAINEES AND NEED ONLY SHOW THAT OFFICIALS KNEW OR SHOULD HAVE KNOWN THAT OMITTED MEDICAL TREATMENTS WOULD POSE A SUBSTANTIAL RISK TO THE DETAINEES’ HEALTH. Noncitizen detainees like Petitioners, even those with prior criminal convictions, are civil detainees held pursuant to the country’s civil immigration laws. See Zadvydas, 533 U.S. at 690. Civil detention, as opposed to criminal incarceration, invokes constitutional protections derived from the Due Process Clause of the Fifth Amendment rather than the Eighth Amendment. Thus, civil detention prohibits the use of punitive measures in any form (apart from the detention itself). See id. (“[G]overnment detention violates [the Due Process] Clause unless the detention is ordered in criminal proceeding[s] with adequate procedural protections . . . or, in certain special and ‘narrow’ nonpunitive ‘circumstances’ . . . .”) (emphasis in original); see also Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (stating that civil detainees “may not be punished in any manner – neither cruelly and unusually nor otherwise.”) (internal quotation marks and citations omitted). In
22

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 28 of 40
Youngberg v. Romeo, the Supreme Court clarified that civil detainees are entitled to “more considerate treatment” than criminal detainees. 457 U.S. 307, 321-22 (1982).
Likewise in Charles v. Orange County, the Second Circuit affirmed that individuals in civil detention are “afforded a right to be free from deliberate indifference to their serious medical needs.” 925 F.3d 73, 85 (2d Cir. 2019). Deliberate indifference “can be shown by something akin to recklessness, and does not require proof of a malicious or callous state of mind.” Id. at 86. It is established either when “the defendants knew that failing to provide . . . medical treatment would pose a substantial risk to [the detainee]. . . 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.” Id. at 87.
Here, Petitioners’ due process rights require that they be afforded adequate medical care during their detention. Respondents have or should be expected to have knowledge over the acute risks that COVID-19 poses for older individuals and individuals with underlying medical conditions. Respondents also have knowledge over Petitioners’ ages and underlying medical conditions, as ICE routinely keeps medical records and maintains a small medical staff at Batavia.
However, in light of present circumstances, Respondents’ decision to continue detaining Petitioners evidences deliberate indifference. Since nearly all medical experts agree that social distancing is the only viable option to reduce the spread of COVID-19, and because social distancing is effectively impossible within a crowded detention facility or dorm, Respondents violate Petitioners’ due process rights by continuing to hold them in detention knowing that they cannot do anything to prevent an outbreak.
Furthermore, as noted above, if Petitioners do contract this virus, they are most certainly going to receive substandard care, as the Buffalo Federal Detention Facility is likely to be rapidly
23

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 29 of 40
overrun with cases and far beyond the capacity to treat Petitioners adequately. Likewise, reliance on the surrounding regional healthcare infrastructure is insufficient to protect Petitioners. The hospital in Batavia – United Memorial Medical Center – has a total of 133 beds relative to a town of approximately 14,500 residents, in addition to the approximately 650 detainees at the Buffalo Federal Detention Facility. Should the virus hit the area in anything close to an outbreak, the hospital is likely to be quickly overwhelmed and priority on assistance given to citizen residents rather than detainees.
c. COVID-19’S THREAT IMPOSES A POTENTIAL HARM THAT EXCEEDS RESPONDENTS’ INTEREST IN DETAINING PETITIONERS.
The risk of serious illness or death confronting Petitioners should they contract COVID-19 significantly exceeds Respondents’ interest in continuing their detention. In Zadvydas, the Supreme Court emphasized that the government’s two interests in detaining noncitizens within immigration detention facilities are to “ensure[] the appearance of aliens at future immigration proceedings” and “prevent[] danger to the community.” 533 U.S. at 690 (internal quotation marks and citation omitted). The government’s twin interests must always be weighed against an individual’s compelling liberty interest to be free of physical restraint. The Zadvydas Court clarified that the distinction is not between imprisonment and noncitizens “living at large” but rather between imprisonment and “supervision under release conditions . . . .” Id. at 696. The Supreme Court concluded that “an alien’s liberty interest is, at the least, strong enough to raise a serious question as to whether . . . the Constitution permits detention that is indefinite and potentially permanent.” Id. Here, the government’s interest in continuing to hold Petitioners cannot justify the serious medical harm or death – tantamount to indefinite detention or even torture – that is likely to be faced by Petitioners if they remain.
24

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 30 of 40
This is also not the first instance in which this Court has been tasked with considering a habeas action from a Batavia detainee based at least in part on the health consequences in detention. While not directly on point, the case can serve as a guide. In D’Alessandro v. Mukasey, this Court granted habeas relief to a petitioner in poor physical health being detained at the BFDF and ordered ICE to immediately release him. 628 F.Supp.2d 368 (W.D.N.Y. 2009). The Court noted that petitioner, a fifty-year-old man, suffered from a “constellation of serious, debilitating, and progressive health problems” that were not likely to improve while detained in ICE custody. Id. at 399. Among several factors, the Court evaluated D’Alessandro’s poor health in determining that detention was no longer justified. D’Alessandro, 628 F.Supp.2d. at 399. The Court ultimately concluded, in addition to his disciplinary record, rehabilitation, and community support, that D’Alessandro’s health conditions weighed in favor of establishing that he was “not likely to violate [any] conditions of release” imposed on him, thus justifying his immediate release. Id. at 400.
Like the petitioner in D’Alessandro, the Petitioners’ liberty interests here are elevated because of their heightened susceptibility to contracting COVID-19 and the inevitability of developing serious health complications in the event they contract the virus. Petitioners are all either over the age of fifty or have underlying medical conditions that make their continued detention at the BFDF physically unsafe. See supra. Furthermore, Respondents’ interest in “preventing danger to the community” in the current case is diminished by the exceptional circumstances produced by the COVID-19 outbreak. See Zadyvdas, 533 U.S. at 690. As numerous public health experts have warned, it is more dangerous to the community for Respondents to continue detaining Petitioners because of the significant amount of medical resources that local hospitals might be required to treat Petitioners when they develop serious complications from COVID-19.
25

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 31 of 40
To address this new reality, extraordinary measures are necessary to protect Petitioners’ lives. See Exh. B, Allen & Rich Letter at 5 (“to implement immediate social distancing to reduce the likelihood of exposure to . . . the general public, it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.”). Sobering as it is, as outlined below, the only reasonable way – i.e. the consensus of expert medical opinion – to protect Petitioners lives is to order they be released immediately before the virus hits. II. PETITIONERS ARE LIKELY TO SUFFER IRREPARABLE HARM ABSENT THE
TEMPORARY RESTRAINING ORDER. The rapid spread of COVID-19 and the severe harm that it may bring to Petitioners constitute irreparable harm that justifies granting the temporary restraining order. See Faiveley Transp. Malmo AB, 559 F.3d at 118 (“A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.”) (internal quotation marks and citation omitted). Temporary restraining orders are warranted when Petitioners demonstrate that “they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” See id. (internal citation omitted). Relevant here, in considering a case that only looked at the “risk of harm to [] future health”, the Supreme Court stated precisely in Helling that:
It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition . . . on the ground that nothing yet has happened to them. The Courts of Appeals have plainly recognized that a remedy for unsafe conditions need not await a tragic event. . . We thus reject petitioners’ central thesis that only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment. Helling, 509 U.S. at 33; see also Campbell v. Beto, 460 F.2d 765, 768 (5th Cir. 1972) (“[I]t is apparent that the courts cannot close their judicial eyes to prison conditions which present a grave
26

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 32 of 40
and immediate threat to health or physical well being.”); Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980) (“[An inmate] does not need to wait until he is actually assaulted before obtaining relief.”); Woodhous v. Commonwealth of Virginia, 487 F.2d 889, 890 (4th Cir. 1973) (same). On point to the present case, the Second Circuit has also recognized that “prison officials may not ignore medical conditions that are very likely to cause serious illness and needless suffering in the future even if the prisoner has no serious current symptoms.” Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003) (internal quotation omitted).
The fast-changing nature of the COVID-19 outbreak dictates that Petitioners should be released from detention while they await adjudication of their underlying habeas petition. First, constitutional violations are per se irreparable harms that justify swift and impactful redress. See Connecticut Dep't of Envtl. Prot., 356 F.3d at 231 (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.”) (internal quotation marks and citations omitted). Here, Petitioners have asserted credible violations of their Fifth Amendment right to reasonable safety while being detained by the government, inherently an irreparable injury.
Second, as discussed at length above, Petitioners are individuals who are highly vulnerable to serious harm, potentially leading to their deaths, should they contract COVID-19 while detained at Batavia. See supra, Factual Background, §§ I, III, IV; Petition and Complaint, Dkt. No. 1 at . Moreover, the injury that they would suffer is neither remote nor speculative given COVID-19’s high rates of transmission and severe impact on vulnerable populations. The imminent risk that Petitioners face is exacerbated by confirmed cases of COVID-19 in Genesee County, the county in which the BFDF sits, as well confirmed cases at the Wende Correctional Facility, through which
27

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 33 of 40
DOCCS regularly transfers inmates moving between DOCCS and ICE custody.41 ¶ 52-57 (noting the specific harm to each petitioner based on individual medical conditions). Finally, the continued operation of the Batavia Immigration Court, which necessitates the daily in and outflow of a large number of people, further elevates Petitioners’ risks. As the overwhelming consensus of public health experts indicates, transmission of COVID-19 into an immigration detention facilities likethe BFDF appears to be imminent. See Allen & Rich Letter, Dkt. No. 2, Exh. D at 5 (“In the current scenario, with widespread reporting about the lack of available tests for COVID-19 and challenges for screening given the late-onset display of symptoms for what is now a community-spread illness, detention facilities, like the rest of [the] country, are already behind the curve for this stage of mitigation.”); Helling, 509 U.S. at 34 (“the Eighth Amendment protects against sufficiently imminent dangers.”). III. THE PUBLIC INTEREST AND BALANCE OF EQUITIES WEIGH HEAVILY IN
PETITIONERS’ FAVOR. Both the public interest and balance of equities heavily favor the Petitioners. The Second Circuit has articulated that “where a Petitioner alleges constitutional violations, the balance of hardships tips decidedly in the Petitioner’s favor despite arguments that granting a preliminary injunction would cause financial or administrative burdens on the Government.” Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *13 (S.D.N.Y. May 23, 2018), appeal withdrawn, No. 18-2591, 2019 WL 4137822 (2d Cir. May 7, 2019) (citing Mitchell v. Cuomo, 748 F.2d 804, 808 (2d Cir. 1984)); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is always in the public interest to prevent the violation of a party’s constitutional rights.”).
41 See Mahoney, supra note 13. 28

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 34 of 40
Here, Respondents face minimal financial or administrative burdens to release Petitioners from custody. Instead, releasing Petitioners from custody would alleviate the costs required for Respondents to keep Petitioners in custody, as well as the potentially high cost to Respondents should they be required to treat Petitioners when a COVID-19 outbreak occurs. This would include not only the high cost of Petitioners’ significant medical treatment, but also possibly the cost of their deaths. Respondents’ capacity to release Petitioners under appropriate conditions of supervision also assures Petitioners return for any future immigration proceedings. See Zadvydas, 533 U.S. at 690 (noting that one of the Government’s two goals is to “ensure[] the appearance of aliens at future immigration proceedings.”).
Immediately releasing Petitioners from detention serves both Respondents’ specific interests and the more generalized public interest because it benefits the public health. See e.g., Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (identifying “public health” as a “significant public interest.”). The release of people most vulnerable to COVID-19 reduces the overall health risk for detainees, facility staff, and regular visitors alike at the BFDF, and protects the surrounding public community. Stern Decl. at ¶ 9. Reducing the spread of an infection in detention centers “slows, if not reduces, the number of people who will become ill enough to require hospitalization, which in turn reduces the health and economic burden to the local community at large.” Id. at ¶ 10. IV. RESPONDENTS HAVE THE AUTHORITY TO RELEASE DETAINED PEOPLE
IN ITS CUSTODY AND REGULARLY EXERCISES THIS AUTHORITY DUE TO MEDICAL REASONS. ICE both has the authority to release individuals from custody and routinely exercises this discretion to release particularly vulnerable detainees like Petitioners. See 8 U.S.C. §§ 1182(d)(5), 1226(a), 1231(a)(3); 8 C.F.R. §§ 212.5(b)(1), 236.1(c)(8). Regulations governing ICE’s release
29

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 35 of 40
authority explicitly state that serious medical conditions are a reason to parole an individual, as “continued detention would not be appropriate.” 8 C.F.R. § 212.5(b)(1). As former Deputy Assistant Director for Custody Programs in ICE Enforcement and Removal Operations LorenzenStrait states, “ICE has exercised and still exercises discretion for purposes of releasing individuals with serious medical conditions from detention” and “exercises humanitarian parole authority all the time for serious medical reasons.” Declaration of Andrew Lorenzen-Strait at ¶ 3.
ICE’s release policy comes from a long line of agency directives explicitly instructing officers to exercise favorable discretion in cases involving severe medical concerns and to limit the detention of noncitizens with special vulnerabilities. Id. at ¶¶ 4 n. 1, 12. This group traditionally includes “individuals who are known to be suffering from serious physical or mental illness, who have disabilities, who are elderly, pregnant, or nursing, . . . or whose detention as otherwise not in the public interest.” Id. at ¶ 4.
Importantly, this release policy applies regardless of the statutory basis for the noncitizen’s detention. Id. at ¶ 10. Even individuals held under mandatory detention pursuant to 8 U.S.C. § 1226(c) are eligible for release, “particularly where the nature of their illness could impose substantial health care costs or the humanitarian equities mitigating against detention are particularly compelling.” Id.
Petitioners, who are all at a high risk from suffering serious complications and/or death from COVID-19, all fit squarely within ICE’s definition of vulnerable populations. See supra, Factual Background §§ III-IV; Petition, Dkt. No. 1 at ¶ 52-57. Considering ICE’s well-established authority and practice of exercising discretion in these circumstances, along with the substantial medical and health care costs that ICE would otherwise bear from a COVID-19 outbreak within the BFDF, Petitioners’ immediate release serves the interests of all detainees and the agency.
30

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 36 of 40
V. THE COURT HAS AUTHORITY TO ORDER PETITIONERS’ RELEASE AS THE SOLE EFFECTIVE REMEDY FOR THE CONSTITUTIONAL VIOLATION. This Court has “broad discretion in fashioning equitable remedies for . . . constitutional
violations.” Ass’n of Surrogates & Supreme Court Reporters Within City of New York v. State of N.Y., 966 F.2d 75, 79 (2d Cir. 1992), opinion modified on reh’g, 969 F.2d 1416 (2d Cir. 1992). In Brown v. Plata, the Supreme Court held that “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” 563 U.S. 493, 511 (2011). In cases involving prisons and jails, federal courts have repeatedly ordered the release of detained persons when necessary to remedy constitutional violations caused by overcrowding. See, e.g., Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983), cert. denied, 465 U.S. 1108 (1984) (concluding that court did not exceed its authority in directing release of lowbond pretrial detainees as necessary to reach a population cap); Mobile Cty. Jail Inmates v. Purvis, 581 F. Supp. 222, 224-25 (S.D. Ala. 1984) (concluding that district court properly exercised remedial powers to order a prison’s population reduced to alleviate unconstitutional conditions); Brenneman v. Madigan, 343 F. Supp. 128, 139 (N.D. Cal. 1972) (“If the state cannot obtain the resources to detain persons . . . in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons.”); Hechavarria v. Whitaker, 358 F.Supp.3d 227, 234 (W.D.N.Y. Jan. 16, 2019) (“Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him.” (quoting Fay v. Noia, 372 U.S. 391, 430-31 (1963)).
In this case, the release of Petitioners from detention is the only effective remedy for the constitutional violation they face – namely that they are likely suffer severe harm and possibly die if they remain in detention. Preventive measures that may be effective in the community, such as
31

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 37 of 40
maintaining a distance of six feet from other persons and frequent disinfection, are downright impossible for Petitioners while at Batavia. See supra, Factual Background §§ I-III. As Dr. Greifinger explains, “[t]he only viable public health strategy available is risk mitigation. Even with the best-laid plans to address the spread of COVID-19 in detention facilities, the release of high-risk individuals is a key part of a risk mitigation strategy.” Greifinger Decl. at ¶ 13. And because those measures are not possible to protect Petitioners, regardless of Respondents’ best efforts, Petitioners’ right to reasonable safety is to be imminently violated by their continued detention. VI. THE COURT SHOULD NOT REQUIRE PETITIONERS TO PROVIDE
SECURITY PRIOR TO ISSUING A TEMPORARY RESTRAINING ORDER. Federal Rule of Civil Procedure 65(c) provides that, “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” However, under Rule 65, “the amount of any bond to be given upon the issuance of a preliminary injunction rests within the sound discretion of the trial court” and “the district court may dispense with the filing of a bond.” Clarkson Co. v. Shaheen, 544 F.2d 624, 632 (2d Cir. 1976) (internal citations omitted). Since the case here involves the violation of Petitioners’ constitutional rights, because Petitioners comprise indigent individuals, and because Respondents – collectively the federal government – would not be financially harmed by a grant of the temporary restraining order, the Court should exercise its discretion and waive the requirement of a security.
32

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 38 of 40

CONCLUSION For the foregoing reasons, Petitioners respectfully move this Court to issue a temporary restraining order against Respondents over their continued detention and order Petitioners’ immediate release under appropriate public health measures and conditions of supervision.

Respectfully submitted,

/s/ Joseph Moravec JOSEPH MORAVEC, Esq. Prisoners’ Legal Services of New York 41 State Street, Suite M112 Albany, NY 12207 (518) 694-8699 jmoravec@plsny.org Attorney for Petitioners
JOHN PENG, Esq.* Prisoners’ Legal Services of New York 41 State Street, Suite M112 Albany, NY 12207 (518) 694-8699 jpeng@plsny.org
* Admission application submitted; petition for admission scheduled for 04/06/2020
NICHOLAS J. PHILLIPS, Esq. Prisoners’ Legal Services of New York 14 Lafayette Square, Suite 510 Buffalo, NY 14203 (716) 844-8266 nphillips@plsny.org
ROBERT F. GRAZIANO, Esq. Law Office of Robert F. Graziano, Esq. 50 Fountain Place, Suite 1455 Buffalo, NY 14202 (716) 961-3262 bob@bobgraziano.com

33

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 39 of 40
GRACE ZAIMAN, Esq. Journey’s End Refugee Services Satellite Office at Catholic Family Center 87 N. Clinton Ave. Rochester, NY 14604 (716) 480-7889 gzaiman@jersbuffalo.org SIANA MCLEAN, Esq. Muscato & Shatkin, LLP 1520 Pine Avenue Niagara Falls, NY 14301 (716) 842-0550 sianajmlaw@gmail.com
34

Case 1:20-cv-00361 Document 9 Filed 03/26/20 Page 40 of 40
CERTIFICATE OF SERVICE I hereby certify that on March 26, 2020, I filed this Motion for Temporary Restraining Order with all supporting papers to the Clerk of the U.S. District Court for the Western District of New York using its CM/ECF system. The Clerk of the Court electronically served the CM/ECF participants on this case:  Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security;  Thomas E. Feeley, Field Office Director, Buffalo Field Office Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; and  Jeffrey Searls, Acting Assistant Field Office Director and Administrator, Buffalo Federal Detention Facility And, I hereby certify that I have sent copies of this filing by electronic mail to the following participants on this case: Daniel Moar, Assistant United States Attorney Adam Khalil, Assistant United States Attorney David Coriell, Assistant United States Attorney

Respectfully submitted, DATED: March 26, 2020

/s/ Joseph Moravec JOSEPH MORAVEC, Esq. Prisoners’ Legal Services of New York 41 State Street, Suite M112 Albany, NY 12207 (518) 694-8699 jmoravec@plsny.org
Attorney for Petitioners

35

Case 1:20-cv-00361 Document 9-1 Filed 03/26/20 Page 1 of 8

Case 1:20-cv-00361 Document 9-1 Filed 03/26/20 Page 2 of 8

Scott A. Allen, MD, FACP Professor Emeritus, Clinical Medicine University of California Riverside School of Medicine Medical Education Building 900 University Avenue Riverside, CA 92521

Josiah “Jody” Rich, MD, MPH Professor of Medicine and Epidemiology, Brown University Director of the Center for Prisoner Health and Human Rights Attending Physician, The Miriam Hospital, 164 Summit Ave. Providence, RI 02906

March 19, 2020

The Honorable Bennie Thompson Chairman House Committee on Homeland Security 310 Cannon House Office Building Washington, D.C. 20515

The Honorable Ron Johnson Chairman Senate Committee on Homeland Security and Governmental Affairs 340 Dirksen Senate Office Building Washington, D.C. 20510

The Honorable Mike Rogers Ranking Member House Committee on Homeland Security 310 Cannon House Office Building Washington, D.C. 20515

The Honorable Gary Peters Ranking Member Senate Committee on Homeland Security and Governmental Affairs 340 Dirksen Senate Office Building Washington, D.C. 20510

The Honorable Carolyn Maloney Chairwoman House Committee on Oversight and Reform 2157 Rayburn House Office Building Washington, D.C. 20515

The Honorable Jim Jordan Ranking Member House Committee on Oversight and Reform 2157 Rayburn House Office Building Washington, D.C. 20515

Dear Committee Chairpersons and Ranking Members:
We are physicians—an internist and an infectious disease specialist—with unique expertise in medical care in detention settings.1 We currently serve as medical subject matter experts for the

1 I, Dr. Scott Allen, MD, FACP, am a Professor Emeritus of Medicine, a former Associate Dean of Academic Affairs and former Chair of the Department of Internal Medicine at the University of California Riverside School of Medicine. From 1997 to 2004, I was a full-time correctional physician for the Rhode Island Department of Corrections; for the final three years, I served as the State Medical Program. I have published over 25 peer-reviewed papers in academic journals related to prison health care and am a former Associate Editor of the International Journal of Prisoner Health Care. I am the court appointed monitor for the consent decree in litigation involving
Page 1 of 7

Case 1:20-cv-00361 Document 9-1 Filed 03/26/20 Page 3 of 8
Department of Homeland Security’s Office of Civil Rights and Civil Liberties (CRCL). One of us (Dr. Allen) has conducted numerous investigations of immigration detention facilities on CRCL’s behalf over the past five years. We both are clinicians and continue to see patients, with one of us (Dr. Rich) currently providing care to coronavirus infected patients in an ICU setting.
As experts in the field of detention health, infectious disease, and public health, we are gravely concerned about the need to implement immediate and effective mitigation strategies to slow the spread of the coronavirus and resulting infections of COVID-19. In recent weeks, attention has rightly turned to the public health response in congregate settings such as nursing homes, college campuses, jails, prisons and immigration detention facilities (clusters have already been identified in Chinese and Iranian prisons according to news reports2 and an inmate and an officer have reportedly just tested positive at New York’s Rikers Island).3 Reporting in recent days reveals that immigrant detainees at ICE’s Aurora facility are in isolation for possible exposure to coronavirus.4 And a member of ICE’s medical staff at a private detention center in New Jersey has now been reported to have tested positive for coronavirus.5
We have shared our concerns about the serious medical risks from specific public health and safety threats associated with immigration detention with CRCL’s Officer Cameron Quinn in an initial letter dated February 25, 2020, and a subsequent letter of March 13, 2020. We offered to
medical care at Riverside County Jails. I have consulted on detention health issues both domestically and internationally for the Open Society Institute and the International Committee of the Red Cross, among others. I have worked with the Institute of Medicine on several workshops related to detainee healthcare and serve as a medical advisor to Physicians for Human Rights. I am the co-founder and co-director of the Center for Prisoner Health and Human Rights at Brown University (www.prisonerhealth.org), and a former Co-Investigator of the University of California Criminal Justice and Health Consortium. I am also the founder and medical director of the Access Clinic, a primary care medical home to adults with developmental disabilities.
I, Dr. Josiah (Jody) Rich, MD, MPH, am a Professor of Medicine and Epidemiology at The Warren Alpert Medical School of Brown University, and a practicing Infectious Disease Specialist since 1994 at The Miriam Hospital Immunology Center providing clinical care for over 22 years, and at the Rhode Island Department of Corrections caring for prisoners with HIV infection and working in the correctional setting doing research. I have published close to 190 peer-reviewed publications, predominantly in the overlap between infectious diseases, addictions and incarceration. I am the Director and Co-founder of The Center for Prisoner Health and Human Rights at The Miriam Hospital (www.prisonerhealth.org), and a Co-Founder of the nationwide Centers for AIDS Research (CFAR) collaboration in HIV in corrections (CFAR/CHIC) initiative. I am Principal Investigator of three R01 grants and a K24 grant all focused on incarcerated populations. My primary field and area of specialization and expertise is in the overlap between infectious diseases and illicit substance use, the treatment and prevention of HIV infection, and the care and prevention of disease in addicted and incarcerated individuals. I have served as an expert for the National Academy of Sciences, the Institute of Medicine and others. 2 Erin Mendel, “Coronavirus Outbreaks at China Prisons Spark Worries About Unknown Clusters,” Wall Street Journal, February 21, 2020, available at: https://www.wsj.com/articles/coronavirus-outbreaks-at-china-prisonsspark-worries-about-unknown-clusters-11582286150; Center for Human Rights in Iran, “Grave Concerns for Prisoners in Iran Amid Coronavirus Outbreak,” February 28, 2020, available at https://iranhumanrights.org/2020/02/grave-concerns-for-prisoners-in-iran-amid-coronavirus-outbreak/. 3 Joseph Konig and Ben Feuerherd, “First Rikers Inmate Tests Positive for Coronavirus” New York Post. March 18, 2020, available at: https://nypost.com/2020/03/18/first-rikers-island-inmate-tests-positive-for-coronavirus/ 4 Sam Tabachnik, “Ten detainees at Aurora’s ICE detention facility isolated for possible exposure to coronavirus,” The Denver Post, March 17, 2020, available at https://www.denverpost.com/2020/03/17/coronavirus-ice-detentiongeo-group-aurora-colorado/. 5 Emily Kassie, “First ICE Employees Test Positive for Coronavirus,” The Marshall Project, March 19, 2020, available at https://www.themarshallproject.org/2020/03/19/first-ice-employees-test-positive-for-coronavirus
Page 2 of 7

Case 1:20-cv-00361 Document 9-1 Filed 03/26/20 Page 4 of 8
work with DHS in light of our shared obligation to protect the health, safety, and civil rights of detainees under DHS’s care. Additionally, on March 17, 2020 we published an opinion piece in the Washington Post warning of the need to act immediately to stem the spread of the coronavirus in jails and prisons in order to protect not only the health of prisoners and corrections workers, but the public at large.6
In the piece we noted the parallel risks in immigration detention. We are writing now to formally share our concerns about the imminent risk to the health and safety of immigrant detainees, as well as to the public at large, that is a direct consequence of detaining populations in congregate settings. We also offer to Congress, as we have to CRCL, our support and assistance in addressing the public health challenges that must be confronted as proactively as possible to mitigate the spread of the coronavirus both in, and through, immigration detention and congregate settings.
Nature of the Risk in Immigration Detention and Congregate Settings
One of the risks of detention of immigrants in congregant settings is the rapid spread of infectious diseases. Although much is still unknown, the case-fatality rate (number of infected patients who will die from the disease) and rate of spread for COVID-19 appears to be as high or higher than that for influenza or varicella (chicken pox).
In addition to spread within detention facilities, the extensive transfer of individuals (who are often without symptoms) throughout the detention system, which occurs with great frequency in the immigration context, could rapidly disseminate the virus throughout the entire system with devastating consequences to public health.7
Anyone can get a coronavirus infection. While healthy children appear to suffer mildly if they contract COVID-19, they still pose risk as carriers of infection, particularly so because they may not display symptoms of illness.8 Family detention continues to struggle with managing outbreaks of influenza and varicella.9 Notably, seven children who have died in and around
6 Josiah Rich, Scott Allen, and Mavis Nimoh, “We must release prisoners to lessen the spread of coronavirus,” Washington Post, March 17, 2020, available at https://www.washingtonpost.com/opinions/2020/03/17/we-mustrelease-prisoners-lessen-spread-coronavirus/. 7 See Hamed Aleaziz, “A Local Sheriff Said No To More Immigrant Detainees Because of Coronavirus Fears. So ICE Transferred Them All To New Facilities,” BuzzFeed News, March 18, 2020 (ICE recently transferred170 immigrant detainees from Wisconsin to facilities in Texas and Illinois. “’In order to accommodate various operational demands, ICE routinely transfers detainees within its detention network based on available resources and the needs of the agency…’ an ICE official said in a statement.”), available at https://www.buzzfeednews.com/article/hamedaleaziz/wisconsin-sheriff-ice-detainees-coronavirus 8 Interview with Jay C. Butler, MD, Deputy Director for Infectious Diseases, Centers for Disease Control and Prevention, “Coronovirus (COVID-19) Testing,” JAMA Network, March 16, 2020, available at https://youtu.be/oGiOi7eV05g (min 19:00). 9 Indeed, I (Dr. Allen) raised concerns to CRCL, the DHS Office of Inspector General, and to Congress in July 2018, along with my colleague Dr. Pamela McPherson, about the risks if harm to immigrant children in family detention centers because of specific systemic weaknesses at those facilities in their ability to provide for the medical and mental health needs of children in detention. See, e.g., July 17, 2018 Letter to Senate Whistleblower Caucus Chairs from Drs. Scott Allen and Pamela McPherson, available at https://www.wyden.senate.gov/imo/media/doc/Doctors%20Congressional%20Disclosure%20SWC.pdf. Those concerns, including but not limited to inadequate medical staffing, a lack of translation services, and the risk of
Page 3 of 7

Case 1:20-cv-00361 Document 9-1 Filed 03/26/20 Page 5 of 8
immigration detention, according to press reports, six died of infectious disease, including three deaths from influenza.10 Containing the spread of an infection in a congregate facility housing families creates the conditions where many of those infected children who do not manifest symptoms will unavoidably spread the virus to older family members who may be a higher risk of serious illness.
Finally, as you well know, social distancing is essential to slow the spread of the coronavirus to minimize the risk of infection and to try to reduce the number of those needing medical treatment from the already-overwhelmed and inadequately prepared health care providers and facilities. However, social distancing is an oxymoron in congregate settings, which because of the concentration of people in a close area with limited options for creating distance between detainees, are at very high risk for an outbreak of infectious disease. This then 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 treatment facilities.
As local hospital systems become overwhelmed by the patient flow from detention center outbreaks, precious health resources will be less available for people in the community.To be more explicit, a detention center with a rapid outbreak could result in multiple detainees—five, ten or more—being sent to the local community hospital where there may only be six or eight ventilators over a very short period. As they fill up and overwhelm the ventilator resources, those ventilators are unavailable when the infection inevitably is carried by staff to the community and are also unavailable for all the usual critical illnesses (heart attacks, trauma, etc). In the alternate scenario 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. In the first scenario, many people from the detention center and the community die unnecessarily for want of a ventilator. In the latter, survival is maximized as the local mass outbreak scenario is averted.
It is additionally concerning that dozens of immigration detention centers are in remote areas with limited access to health care facilities. Many facilities, because of the rural locations, have only one on-site medical provider. If that provider gets sick and requires being quarantined for at least fourteen days, the entire facility could be without any medical providers at all during a foreseeable outbreak of a rapidly infectious disease. We simply can’t afford a drain on resources/medical personnel from any preventable cases.
communication breakdowns and confusion that results from different lines of authority needing to coordinate between various agencies and partners from different government programs and departments responsible for detention programs with rapid turnover, all continue to contribute to heightened risks to meeting the medical challenges posed by the spread of the coronavirus. 10 Nicole Acevedo, “Why are children dying in U.S. custody?,” NBC News, May 29, 2019, available at https://www.nbcnews.com/news/latino/why-are-migrant-children-dying-u-s-custody-n1010316
Page 4 of 7

Case 1:20-cv-00361 Document 9-1 Filed 03/26/20 Page 6 of 8
Proactive Approaches Required
Before coronavirus spreads through immigration detention, proactivity is required in three primary areas: 1) Processes for screening, testing, isolation and quarantine; 2) Limiting transport and transfer of immigrant detainees; and 3) Implementing alternatives to detention to facilitate as much social distancing as possible.
Protocols for early screening, testing, isolation and quarantine exist in detention settings to address infectious diseases such as influenza, chicken pox and measles. However, the track record of ICE facilities implementing these protocols historically has been inconsistent. In the current scenario, with widespread reporting about the lack of available tests for COVID-19 and challenges for screening given the late-onset display of symptoms for what is now a communityspread illness, detention facilities, like the rest of country, are already behind the curve for this stage of mitigation.
Detention facilities will need to rapidly identify cases and develop plans to isolate exposed cohorts to limit the spread, as well as transfer ill patients to appropriate facilities. Screening should occur as early as possible after apprehension (including at border holding facilities) to prevent introduction of the virus into detention centers. We strongly recommend ongoing consultation with CDC and public health officials to forge optimal infection prevention and control strategies to mitigate the health risks to detained patient populations and correctional workers. Any outbreak in a facility could rapidly overwhelm the capacity of healthcare programs. Partnerships with local public health agencies, hospitals and clinics, including joint planning exercises and preparedness drills, will be necessary.
Transferring detainees between facilities should be kept to an absolute minimum. The transfer process puts the immigrants being transferred, populations in the new facilities, and personnel all at increased risk of exposure. The nationwide network of detention centers, where frequent and routine inter-facility transfers occur, represents a frighteningly efficient mechanism for rapid spread of the virus to otherwise remote areas of the country where many detention centers are housed.
Finally, regarding the need to implement immediate social distancing to reduce the likelihood of exposure to detainees, facility personnel, and the general public, it is essential to consider releasing all detainees who do not pose an immediate risk to public safety.
Congregant settings have a high risk of rapid spread of infectious diseases, and wherever possible, public health mitigation efforts involve moving people out of congregate settings (as we are seeing with colleges and universities and K-12 schools).11 Minimally, DHS should consider releasing all detainees in high risk medical groups such as older people and those with
11 Madeline Holcombe, “Some schools closed for coronavirus in US are not going back for the rest of the academic year,” CNN, March 18, 2020, available at https://www.cnn.com/2020/03/18/us/coronavirus-schools-not-going-backyear/index.html; Eric Levenson, Chris Boyette and Janine Mack, “Colleges and universities across the US are canceling in-person classes due to coronavirus,” CNN, March 12, 2020, available at https://www.cnn.com/2020/03/09/us/coronavirus-university-college-classes/index.html.
Page 5 of 7

Case 1:20-cv-00361 Document 9-1 Filed 03/26/20 Page 7 of 8
chronic diseases. COVID-19 infection among these groups will require many to be transferred to local hospitals for intensive medical and ventilator care—highly expensive interventions that may soon be in short supply.
Given the already established risks of adverse health consequences associated with the detention of children and their families,12 the policy of detention of children and their families in should be reconsidered in light of these new infectious disease threats so that children would only be placed in congregate detention settings when lower risk community settings are not available and then for as brief a time as possible.
In addition, given the low risk of releasing detainees who do not pose a threat to public safety— i.e., those only charged with immigration violations—releasing all immigration detainees who do not pose a security risk should be seriously considered in the national effort to stop the spread of the coronavirus.
Similarly, the practice of forcing asylum seekers to remain in Mexico has created a de facto congregate setting for immigrants, since large groups of people are concentrated on the US southern border as a result of the MPP program in the worst of hygienic conditions without any basic public health infrastructure or access to medical facilities or the ability to engage in social distancing as they await asylum hearings, which are currently on hold as a consequence of the government’s response to stop the spread of the coronavirus.13 This is a tinderbox that cannot be ignored in the national strategy to slow the spread of infection.
ICE recently announced that in response to the coronavirus pandemic, it will delay arresting immigrants who do not pose public safety threats, and will also stop detaining immigrants who fall outside of mandatory detention guidelines.14 But with reporting that immigrant detainees at ICE facilities are already being isolated for possible exposure to coronavirus, it is not enough to simply stop adding to the existing population of immigrant detainees. Social distancing through release is necessary to slow transmission of infection.15
Reassessing the security and public health risks, and acting immediately, will save lives of not only those detained, but also detention staff and their families, and the community-at-large.
12 Report of the DHS Advisory Committee on Family Residential Centers, September 30, 2016, available at https://www.ice.gov/sites/default/files/documents/Report/2016/ACFRC-sc16093.pdf 13 See Rick Jervis, “Migrants waiting at US-Mexico border at risk of coronavirus, health experts warn,” USA Today, March 17, 2020, available at https://www.usatoday.com/story/news/nation/2020/03/17/us-border-could-hit-hardcoronavirus-migrants-wait-mexico/5062446002/. 14 ICE website, Guidance on COVID-19, Immigration and Enforcement Check-Ins, Updated March 18, 2020, 7:45 pm, available at https://www.ice.gov/covid19. 15 Release of immigrants from detention to control the coronavirus outbreak has been recommended by John Sandweg, former acting head of ICE during the Obama administration, who further noted, "’The overwhelming majority of people in ICE detention don't pose a threat to public safety and are not an unmanageable flight risk.’…’Unlike the Federal Bureau of Prisons, ICE has complete control over the release of individuals. ICE is not carrying out the sentence imposed by a federal judge….It has 100% discretion.’" See Camilo Montoya-Galvez, “’Powder kegs’: Calls grow for ICE to release immigrants to avoid coronavirus outbreak, CBS News, March 19, 2020, available at https://www.cbsnews.com/news/coronavirus-ice-release-immigrants-detention-outbreak/.
Page 6 of 7

Case 1:20-cv-00361 Document 9-1 Filed 03/26/20 Page 8 of 8
Our legal counsel, Dana Gold of the Government Accountability Project, is supporting and coordinating our efforts to share our concerns with Congress and other oversight entities about the substantial and specific threats to public health and safety the coronavirus poses by congregate settings for immigrants. As we similarly offered to DHS, we stand ready to aid you in any way to mitigate this crisis and prevent its escalation in light of our unique expertise in detention health and experience with ICE detention specifically. Please contact our attorney, Dana Gold, at danag@whistleblower.org, or her colleague, Irvin McCullough, at irvinm@whistleblower.org, with any questions. Sincerely, /s/ Scott A. Allen, MD, FACP Professor Emeritus, University of California, School of Medicine Medical Subject Matter Expert, CRCL, DHS /s/ Josiah D. Rich, MD, MPH Professor of Medicine and Epidemiology The Warren Alpert Medical School of Brown University Medical Subject Matter Expert, CRCL, DHS
Cc: Dana Gold, Esq. and Irvin McCullough, Government Accountability Project Senate Committee on the Judiciary House Committee on the Judiciary White House Coronavirus Task Force
Page 7 of 7

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 1 of 15

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 2 of 15

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 3 of 15
The Office of the Attorney General, the County Prosecutors Association, the Office of the Public Defender, the American Civil Liberties Union of New Jersey having engaged in mediation before the Honorable Philip S. Carchman, P.J.A.D. (ret.); and
The parties having reviewed certifications from healthcare professionals regarding the profound risk posed to people in correctional facilities arising from the spread of COVID-19; and
The parties agreeing that the reduction of county jail populations, under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19; and
It being agreed to by all parties as evidenced by the attached duly executed consent form;
IT IS HEREBY ORDERED, that A. No later than 6:00 a.m. on Tuesday, March 24, 2020, except as provided
in paragraph C, any inmate currently serving a county jail sentence (1) as a condition of probation, or (2) as a result of a municipal court conviction, shall be ordered released. The Court’s order of release shall include, at a minimum, the name of each inmate to be released, the inmate’s State Bureau of Identification (SBI) number, and the county jail where the inmate is being detained, as well as any standard or
2

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 4 of 15
specific conditions of release. Jails shall process the release of inmates as efficiently as possible, understanding that neither immediate nor simultaneous release is feasible.
1. For inmates serving a county jail sentence as a condition of probation, the custodial portion of the sentence shall either be served at the conclusion of the probationary portion of the sentence or converted into a “time served” condition, at the discretion of the sentencing judge, after input from counsel.
2. For inmates serving a county jail sentence as a result of a municipal court conviction, the custodial portion of the sentence shall be suspended until further order of this Court upon the rescission of the Public Health Emergency declared Executive Order No. 103, or deemed satisfied, at the discretion of the sentencing judge, after input from counsel.
B. No later than noon on Thursday, March 26, 2020, except as provided in paragraph C, any inmate serving a county jail sentence for any reason other than those described in paragraph A shall be ordered released. These sentences include, but are not limited to (1) a resentencing following a finding of a violation of probation in any Superior Court or municipal court, and (2) a county jail sentence not tethered to a
3

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 5 of 15
probationary sentence for a fourth-degree crime, disorderly persons offense, or petty disorderly persons offense in Superior Court. The custodial portion of the sentence shall be suspended until further order of this Court upon the rescission of the Public Health Emergency declared Executive Order No. 103, or deemed satisfied, at the discretion of the sentencing judge, after input from counsel. Jails shall process the release of inmates as efficiently as possible, understanding that neither immediate nor simultaneous release is feasible. C. Where the County Prosecutor or Attorney General objects to the release of an inmate described in Paragraph A, they shall file a written objection no later than 5:00 p.m. on Monday, March 23, 2020. Where the County Prosecutor or Attorney General objects to the release of an inmate described in Paragraph B, they shall file a written objection no later than 8:00 a.m. on Thursday, March 26, 2020.
1. The objection shall delay the order of release of the inmate and shall explain why the release of the inmate would pose a significant risk to the safety of the inmate or the public.
2. Written objections shall be filed by email to the Supreme Court Emergent Matter inbox with a copy to the Office of the Public Defender.
4

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 6 of 15
3. The Office of the Public Defender shall provide provisional representation to all inmates against whom an objection has been lodged under this Paragraph.
4. The Office of the Public Defender shall, no later than 5:00 p.m. on Tuesday, March 24, 2020, provide responses to any objections to release associated with inmates described in Paragraph A, as it deems appropriate. The Office of the Public Defender shall, no later than 5:00 p.m. on Thursday, March 26, 2020, provide responses to any objections to release associated with inmates described in Paragraph B, as it deems appropriate.
5. The Court shall appoint judge(s) or Special Master(s) to address the cases in which an objection to release has been raised. a. On or before Wednesday, March 25, 2020, the judge(s) or Special Master(s) will begin considering disputed cases arising from Paragraph A; on or before Friday, March 27, 2020, the judge(s) or Special Master(s) will consider disputed cases arising from Paragraph B. i. The judge(s) or Special Master(s) shall conduct summary proceedings, which shall be determined on the papers. In the event the judge(s) or Special
5

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 7 of 15
Master(s) conduct a hearing of any sort, inmates’ presence shall be waived. ii. Release shall be presumed, unless the presumption is overcome by a finding by a preponderance of the evidence that the release of the inmate would pose a significant risk to the safety of the inmate or the public. iii. At any point, the Prosecutor may withdraw its objection by providing notice to the judge(s) or Special Master(s) with a copy to the Office of the Public Defender. In that case, inmates shall be released subjected to the provisions of Paragraphs D-I. iv. If the judge(s) or Special Master(s) determine by a preponderance of the evidence that the risk to the safety of the inmate or the public can be effectively managed, the judge(s) or Special Master(s) shall order the inmate’s immediate release, subject to the provisions of paragraphs DI.
6

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 8 of 15
1. The Order of the judge(s) or Special Master(s) may be appealed on an emergent basis, in a summary manner to the Appellate Division.
2. Should a release Order be appealed, the release Order shall be stayed pending expedited review by the Appellate Division.
3. The record on appeal shall consist of the objection and response filed pursuant to this Paragraph.
v. If the judge(s) or Special Master(s) determine by a preponderance of the evidence that risks to the safety of the inmate or the public cannot be effectively managed, the judge(s) or Special Master(s) shall order the inmate to serve the balance of the original sentence. 1. The Order of the judge(s) or Special Master(s) may be appealed on an emergent basis, in a summary manner to the Appellate Division.
7

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 9 of 15
2. Should an Order requiring an inmate to serve the balance of his sentence be appealed, the Appellate Division shall conduct expedited review.
3. The record on appeal shall consist of the objection and response filed pursuant to this Paragraph.
b. The judge(s) or Special Master(s) should endeavor to address all objections no later than Friday, March 27, 2020.
D. Any warrants associated with an inmate subject to release under this order, other than those associated with first-degree or second-degree crimes, shall be suspended. Warrants suspended under this Order shall remain suspended until ten days after the rescission of the Public Health Emergency associated with COVID-19. See Executive Order No. 103 (2020) (Mar. 9, 2020).
E. In the following circumstances, the county jail shall not release an inmate subject to release pursuant to Paragraphs A, B, or C(5)(a)(iii) or (iv), absent additional instructions from the judge(s) or Special Master(s):
8

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 10 of 15
1. For any inmate who has tested positive for COVID-19 or has been identified by the county jail as presumptively positive for COVID-19, the county jail shall immediately notify the parties and the County Health Department of the inmate’s medical condition, and shall not release the inmate without further instructions from the judge(s) or Special Master(s). In such cases, the parties shall immediately confer with the judge(s) or Special Master(s) to determine a plan for isolating the inmate and ensuring the inmate’s medical treatment and/or mandatory self-quarantine.
2. For any inmate who notifies the county jail that he or she does not wish, based on safety, health, or housing concerns, to be released from detention pursuant to this Consent Order, the county jail shall immediately notify the parties of the inmate’s wishes, and shall not release the inmate without further instructions from the judge(s) or Special Master(s). In such cases, the parties shall immediately confer with the judge(s) or Special Master(s) to determine whether to release the inmate over the inmate’s objection.
9

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 11 of 15
F. Where an inmate is released pursuant to Paragraphs A, B, or C(5)(a)(iii) or (iv), conditions, other than in-person reporting, originally imposed by the trial court shall remain in full force and effect. County jails shall inform all inmates, prior to their release, of their continuing obligation to abide by conditions of probation designed to promote public safety. Specifically: 1. No-contact orders shall remain in force. 2. Driver’s license suspensions remain in force. 3. Obligations to report to probation officers in-person shall be converted to telephone or video reporting until further order of this Court. 4. All inmates being released from county jails shall comply with any Federal, State, and local laws, directives, orders, rules, and regulations regarding conduct during the declared emergency. Among other obligations, inmates being released from county jails shall comply with Executive Order No. 107 (2020) (Mar. 21, 2020), which limits travel from people’s homes and mandates “social distancing,” as well as any additional Executive Orders issued by the Governor during the Public Health Emergency associated with COVID-19.
10

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 12 of 15
5. All inmates being released from county jails are encouraged to self-quarantine for a period of fourteen (14) days.
6. Unless otherwise ordered by the judge(s) or Special Master(s), any inmate being released from a county jail who appears to be symptomatic for COVID-19 is ordered to self-quarantine for a period of fourteen (14) days and follow all applicable New Jersey Department of Health protocols for testing, treatment, and quarantine or isolation.
G. County Prosecutors and other law enforcement agencies shall, to the extent practicable, provide notice to victims of the accelerated release of inmates. 1. In cases involving domestic violence, notification shall be made. N.J.S.A. 2C:25-26.1. Law enforcement shall contact the victim using the information provided on the “Victim Notification Form.” Attorney General Law Enforcement Directive No. 2005-5. a. Where the information provided on the “Victim Notification Form” does not allow for victim contact, the Prosecutor shall notify the Attorney General.
11

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 13 of 15
b. If the Attorney General, or his designee, is convinced that law enforcement has exhausted all reasonable efforts to contact the victim, he may relax the obligations under N.J.S.A. 2C:25-26.1.
2. In other cases with a known victim, law enforcement shall make all reasonable efforts to notify victims of the inmate’s accelerated release.
3. To the extent permitted by law, the Attorney General agrees to relax limitations on benefits under the Violent Crimes Compensation Act (N.J.S.A. 52:4B-1, et seq.) to better provide victims who encounter the need for safety, health, financial, mental health or legal assistance from the State Victims of Crime Compensation Office.
H. The Office of the Public Defender agrees to provide the jails information to be distributed to each inmate prior to release that includes: 1. Information about the social distancing practices and stay-athome guidelines set forth by Executive Order No. 107, as well as other sanitary and hygiene practices that limit the spread of COVID-19;
12

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 14 of 15
2. Information about the terms and conditions of release pursuant to this consent Order;
3. Guidance about how to contact the Office of the Public Defender with any questions about how to obtain services from social service organizations, including mental health and drug treatment services or any other questions pertinent to release under this consent Order.
I. Any inmate released pursuant to this Order shall receive a copy of this Order, as well as a copy of any other Order that orders their release from county jail, prior to their release.
J. Relief pursuant to this Order is limited to the temporary suspension of custodial jail sentences; any further relief requires an application to the sentencing court.
13

Case 1:20-cv-00361 Document 9-2 Filed 03/26/20 Page 15 of 15

3/22/2020 9:50 p.m. Date

/s/Stuart Rabner Chief Justice Stuart Rabner, for the Court

The undersigned hereby consents to the form and entry of the foregoing Order.

3/22/2020 Date

/s/Gurbir S. Grewal Office of the Attorney General

3/22/2020 Date

/s/Angelo J. Onofri County Prosecutors Association of New Jersey

3/22/2020 Date

/s/Joseph E. Krakora Office of the Public Defender

3/22/2020 Date

/s/Alexander Shalom American Civil Liberties Union of New Jersey

14

 
 Case 1:20-cv-00361-LJV Document 10 Filed 03/26/20 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

VERNON JONES, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-361 ORDER

The petitioners are twenty-four civil immigration detainees currently held at the Buffalo Federal Detention Facility in Batavia, New York (“Batavia”). The petitioners claim that their continued detention during the COVID-19 global pandemic violates their Fifth Amendment right to be free from deliberate indifference to their serious medical needs. See Docket Item 1 at 17-18. The petitioners allege not only that “[t]he conditions maintained at [Batavia] subject [them] to a heightened risk of contracting COVID-19,” id. at 23, but further that because they are “all older adults and/or persons with pre-existing medical conditions,” id. at 22, they are at “particularly grave risk of developing serious complications or death if they contract COVID-19,” id.
ORDER
IT IS HEREBY ORDERED that on or before March 27, 2020 the petitioners shall file and serve a memorandum of law explaining, for each petitioner, (1) his or her detention status (length, statutory basis, and prior bond hearings); (2) medical evidence, including opinions from healthcare professionals, supporting his or her claim of being at

Case 1:20-cv-00361-LJV Document 10 Filed 03/26/20 Page 2 of 3
“particularly grave risk of developing serious complications or death if [he or she] contract[s] COVID-19”; and (3) proposed terms and conditions of release, including any supervision; and it is further
ORDERED that the respondents shall file and serve an answer responding to the allegations in the petition on or before March 30, 2020; and it is further
ORDERED that on or before March 30, 2020, the respondents shall file and serve, in addition to their answer, a memorandum of law addressing (1) each petitioner’s detention status (length, statutory basis, prior bond hearings, efforts to effect removal, and the “likelihood of removal in the reasonably foreseeable future,” Zadvydas v. Davis, 533 U.S. 678, 700-01 (2001)); (2) each petitioner’s claim of being at “particularly grave risk of developing serious complications or death if [he or she] contract[s] COVID-19;” (3) the conditions of confinement at Batavia, including measures being taken to limit the risks posed by COVID-19; and (4) each petitioner’s proposed terms and conditions of supervised release; and it is further
ORDERED that on or before March 30, 2020, instead of their answer, the respondents may file a motion to dismiss the petition, accompanied by appropriate exhibits demonstrating that an answer to the petition is unnecessary; and it is further
ORDERED that the parties shall appear by telephone for oral argument on March 31, 2020, at 9:00 AM; and it is further
ORDERED that the Clerk of Court shall serve a copy of the petition, together with a copy of this order, electronically via a notice of electronic filing to the United States Attorney’s Office, Western District of New York, at USANYW-ImmigrationHabeas@usdoj.gov.
2

Case 1:20-cv-00361-LJV Document 10 Filed 03/26/20 Page 3 of 3

THE PETITIONERS MUST FORWARD A COPY OF ALL FUTURE PAPERS AND CORRESPONDENCE TO THE ATTORNEY APPEARING FOR THE RESPONDENTS.

SO ORDERED.

Dated:

March 26, 2020 Buffalo, New York

/s/ Lawrence J. Vilardo LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE

3

 
 Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 1 of 32

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

VERNON JONES, et al., Petitioners,
v. CHAD WOLF, et al,
Respondents.

20-CV-361 DECISION & ORDER

On March 25, 2020, the petitioners, civil immigration detainees held in the custody of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) at the Buffalo Federal Detention Facility in Batavia, New York (“BFDF”), filed an “Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint for Injunctive Relief.” Docket Item 1. The following day, the petitioners filed a motion for a temporary restraining order (“TRO”). See Docket Item 8. The petitioners allege that their continued civil detention in the wake of the COVID-19 pandemic violates their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, and they seek their immediate release from ICE custody. Docket Item 1 at 23-24. Each petitioner is “either over the age of fifty and/or [has] a serious underlying medical condition, making [him] more vulnerable to complications arising from COVID-19.” Id. at 4. On March 31, 2020, this Court held oral argument on the TRO. See Docket Item 43.
For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the petitioners’ motion for a TRO. More specifically, the Court finds that holding the petitioners in the current conditions at the BFDF during the COVID-19 epidemic violates

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 2 of 32
their substantive Due Process rights. Immediate release, however, is not the appropriate remedy—at least at this juncture. The Due Process violation stems from failing to take the steps recommended by public health officials to protect high-risk individuals from contracting COVID-19. Thus, as explained in more detail below, the respondents shall submit a detailed plan to the Court by 5:00 p.m. on April 3, 2020, demonstrating how they will provide those petitioners who are vulnerable individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), with a living situation that facilitates “social distancing.” No later than 9:00 a.m. on April 6, 2020, the respondents shall report to the Court as to whether any or all of the steps outlined in the plan have been taken and, if so, which ones. They also shall identify for which petitioners the measures have been taken and provide a brief explanation why any petitioner does not meet the CDC’s high-risk criteria.
BACKGROUND
The petitioners are twenty-two1 civil immigration detainees,2 currently held in the custody of ICE at the BFDF. Docket Item 1. Each petitioner is “either over the age of fifty and/or [has] a serious underlying medical condition, making [him] more vulnerable to complications arising from COVID-19,” a novel coronavirus that has created a global pandemic. Id. at 4. In less than four months, 951,901 people have been diagnosed
1 Petitioner Shantadewie Rahmee was released on March 30, 2020. See Docket Item 42-5 at 1 n.1.
2 An exhaustive review of the law governing immigration detention is not possible—or necessary—here. It is sufficient, for purposes of this motion, to state that immigration detention is a form of civil detention. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
2

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 3 of 32
with the disease. See Coronavirus Resource Center, Johns Hopkins Univ. & Med. (Apr. 2, 2020, 6:31 AM), https://coronavirus.jhu.edu/. 48,283 have died. Id.
Most of the petitioners allege that they suffer from one or more of the following “medical conditions that influence higher risks of severe illness or death from COVID19”: “lung disease, including moderate to severe asthma; heart disease; immunodeficiency, including cancer; diabetes; and severe obesity.” Docket Item 1 at 2. The petitioners’ medical expert, Joe Goldenson, M.D., classifies such petitioners as being “at grave risk of developing serious complications or dying if [they] contract[ ] COVID-19.” Docket Item 14 at 4-7 (“Goldenson Decl. II”). The remaining petitioners allege that they are at a “higher risk” because of their age or other serious medical conditions. Docket Item 1 at 2. Dr. Goldenson classifies these petitioners as being “at increased risk of developing serious complications or dying if [they] contract[ ] COVID19.” Docket Item 14 at 3, 5 (Goldenson Decl. II).
Medical professionals, including professionals employed by the United States government, are advising individuals vulnerable to serious complications from COVID19 to self-isolate in order to reduce their risk of exposure—a measure the petitioners allege is not possible in the congregate settings in which they currently are housed at BFDF. See Section (I)(B), infra. The petitioners have not pointed to any confirmed cases at BFDF but highlight that there are at least two confirmed cases at the Wende Correctional Facility, through which all persons transferring from a New York State prison into ICE custody at BFDF are processed. Docket Item 1 at 4.
3

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 4 of 32
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 governs consideration of an application for a TRO. Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Trump v. Deutsche Bank AG, 943 F.3d 627, 640 (2d Cir.), cert. granted, 140 S. Ct. 660 (2019) (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)).3 Moreover, the Second Circuit has instructed that a mandatory injunction—that is, an injunction commanding a positive act, as opposed to one that merely maintains the status quo— “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)).
3 Although the Second Circuit also recognizes a “less rigorous standard” of “sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly in their favor,” that standard “cannot be used”—as the petitioners here seek to do—“to preliminarily enjoin governmental action.” Deutsche Bank, 943 F.3d at 637 (citations omitted); see also Able v. United States, 44 F.3d 128, 131 (2d Cir. 1995) (“As long as the action to be enjoined is taken pursuant to a statutory or regulatory scheme, even government action with respect to one litigant requires application of the ‘likelihood of success’ standard.”).
4

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 5 of 32
DISCUSSION
I. LIKELIHOOD OF SUCCESS The petitioners allege that their continued detention during the COVID-19
pandemic violates their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution. See Docket Item 1. The Due Process Clause prohibits the federal government from depriving any “person . . . of . . . liberty without due process of law.” U.S. Const. amend. V. “Freedom from imprisonment— from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Id. at 693.
“[G]overnment detention violates the Due Process Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Id. (citations omitted) (alteration in original); see also United States v. Haymond, 139 S. Ct. 2369, 2373 (2019) (explaining that, other than those unique, special, and narrow circumstances, “[o]nly a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty”—a “promise [that] stands as one of the Constitution’s most vital protections against arbitrary government”); United States v. Salerno, 481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”).
5

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 6 of 32
A. Substantive Due Process Violation: Deliberate Indifference
The petitioners’ claim is best understood as an amalgam of two theories of
substantive Due Process violations: unconstitutional conditions of confinement and
deliberate indifference to serious medical needs.4 Both theories derive from the same
principle:
[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being. . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment . . . .
Helling v. McKinney, 509 U.S. 25, 32 (1993) (alterations in original) (quoting DeShaney
v. Winnebago Cty. Dept. of Soc. Svcs., 489 U.S. 189, 199-200 (1989)). This rationale
applies here because a detainee’s rights are “at least as great as the Eighth
Amendment protections available to a convicted prisoner.” See City of Revere, 463
U.S. 239, 244 (1983).
To evaluate the merits of either a conditions-of-confinement or a denial-of-
medical-care claim, courts consider whether the complained-of conditions or deprivation
“amount to punishment.” Bell v. Wolfish, 441 U.S. 520, 535 (1979).5 That is so
4 Cf. LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998) (“[The plaintiff] claims that his continuous health problems caused by exposure to friable asbestos in the air went unattended at [the prison] as [the] defendants failed to rid the premises of the asbestos or take measures to insulate [the plaintiff] from the asbestos particles. [The plaintiff’s] request to be kept in an asbestos-free environment constituted a serious medical need.”).
5 See also Charles v. Orange Cty., 925 F.3d 73, 86 (2d Cir. 2019) (explaining that because “‘deliberately indifferent conduct’ is ‘egregious enough to state a substantive due process claim,’” a court “need not . . . conduct a separate analysis, over
6

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 7 of 32
because “a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Id. at 535; see also Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (“A pretrial detainee’s claims are evaluated under the Due Process Clause because[ ] pretrial detainees have not been convicted of a crime and thus may not be punished in any manner—neither cruelly and unusually nor otherwise.” (citations omitted)).
A complained-of condition or deprivation amounts to punishment if: (a) “the disability is imposed for the purpose of punishment”—that is, there is “an expressed intent to punish on the part of detention facility officials”; (b) no “alternative purpose to which [the condition or deprivation] may rationally be connected is assignable for it”; or (c) the condition or deprivation is “excessive in relation to the alternative purpose assigned [to it].” See Bell, 441 U.S. at 538 (third and fourth quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)).
The petitioners here do not advance the first theory. Nor do they advance the second, and wisely so. There is no dispute that an individual’s unlawful presence in this country is a “special justification” that in many circumstances outweighs the individual’s interest in avoiding restraint. See Zadvydas, 533 U.S. at 690 (recognizing the government’s interests in detaining noncitizens to “ensur[e] the appearance of aliens at future immigration proceedings” and to “prevent[ ] danger to the community” (citations omitted)); see also Demore v. Kim, 538 U.S. 512, 528 (2003) (“[D]etention of deportable criminal aliens pending their removal proceedings . . . necessarily serves the purpose of
and above the deliberate indifference analysis, of whether the state’s conduct ‘shocks the conscience’” (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998))).
7

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 8 of 32
preventing deportable criminal aliens from fleeing prior to or during their removal
proceedings, thus increasing the chance that, if ordered removed, the aliens will be
successfully removed.” (alterations omitted)).6
The central dispute is therefore whether the petitioners’ detention at the BFDF
under current conditions during the COVID-19 pandemic is “excessive” in relation to the
government’s legitimate interests in keeping them detained.
6 When analyzing the process due to noncitizens, there is a relevant “distinction between an alien who has effected an entry into the United States and one who has never entered.” Zadvydas, 533 U.S. at 693; see also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (explaining that “an alien on the threshold of initial entry stands on a different footing” when it comes to Due Process rights). After all, if release from physical confinement means that noncitizens who have never “entered” our country will “be released into American society,” Chi Thon Ngo. v. I.N.S., 192 F.3d 390, 394 (3d Cir. 1999) (quoting Barrera-Eschavarria, 44 F.3d 1441, 1448 (9th Cir. 1995)), release may “ultimately result in our losing control over our borders,” id. (quoting Jean v. Nelson, 727 F.2d 957, 975 (11th Cir. 1984)). Therefore, the nature of protection under the Due Process Clause “may vary depending upon [a noncitizen’s] status and circumstance.” Zadvydas, 533 U.S. at 694. Although it appears that petitioner Patrick Maduabuchi Nwankwo was never admitted to the United States, see Docket Item 26, this Court does not find that his interests as an excludable alien are materially lower than those of removable aliens for purposes of this analysis and, more importantly, for purposes of the injunctive relief ordered today. Both the excludable- and removablealien petitioners claim that the government is forcing them to live in conditions that fall below acceptable societal standards of decency. By holding Nwankwo in detention, the respondents have assumed a burden they cannot ignore—his status as an excludable alien notwithstanding.
This Court also notes that, in light of the injunctive relief it orders today, it need not consider the penological ramifications of releasing the detainees. It nevertheless notes that the analysis in the criminal context would involve a decidedly more intense analysis of the individual’s dangerousness to the community upon release. Cf. Salerno, 481 U.S. at 749, 50 (“The government’s interest in preventing crime by arrestees is both legitimate and compelling . . . [and] heightened when the [g]overnment musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community.” (citation omitted)). While it is true that many immigration detainees have criminal histories—including some of the petitioners in this matter—it also is true that all petitioners with criminal records have served their sentences and so any risk of danger to society is necessarily not as high as that posed by someone who has not yet completed his period of rehabilitation.
8

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 9 of 32
1. Unsanitary Conditions of Confinement A civil detainee may establish that he is subject to “excessive” and therefore unconstitutional conditions of confinement by showing that “officers acted with deliberate indifference to the challenged conditions.” Darnell, 849 F.3d at 29 (2d Cir. 2017) (citation omitted). That showing requires the detainee to “satisfy two prongs”: (1) an “objective prong showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process,” and (2) a “subjective” or “mens rea prong . . . showing that the officer acted with at least deliberate indifference to the challenged conditions”—that is, that the official “acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed . . . even though the [official] knew, or should have known, that the condition posed an excessive risk to health or safety.” Id. at 29, 35. With respect to the first prong, “to establish an objective deprivation, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health, which includes the risk of serious damage to physical and mental soundness.” Id. at 30 (citations omitted). “There is no static test to determine whether a deprivation is sufficiently serious; instead, the conditions themselves must be evaluated in light of contemporary standards of decency.” Id. (citations omitted). For example, in the context of the Eighth Amendment, the Second Circuit has explained that “whether exposure to [a specific condition] is cruel and unusual depends on both the duration and the severity of the exposure.” Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015). “The severity of an exposure may be less quantifiable than its duration, but its qualitative offense to a prisoner’s dignity should be given due consideration.” Id. “[A]ny analysis must consider both the duration and the
9

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 10 of 32
severity of an inmate’s experience of being exposed to unsanitary conditions.” Id. “[A]lthough the seriousness of the harms suffered . . . may shed light on the severity of an exposure, serious injury is unequivocally not a necessary element of an [unconstitutional conditions] claim.” Id. (citations omitted).
In Helling, the Supreme Court held that a prisoner could state a cognizable claim under the Eighth Amendment where he alleged that officials had, “with deliberate indifference, exposed him to levels of [environmental tobacco smoke] that pose[d] an unreasonable risk of serious damage to his future health.” 509 U.S. at 35. To succeed on the subjective prong, the plaintiff would need to show that “the prison authorities’ current attitudes and conduct” evinced deliberate indifference. Id. at 36. To succeed on the objective prong, the Court explained, the plaintiff would need to show both that “he himself [was] being exposed to unreasonably high levels of [environmental tobacco smoke]” and that “society consider[ed] the risk that the prisoner complain[ed] of to be so grave that it violate[d] contempora[neous] standards of decency to expose anyone unwillingly to such a risk”—that is, the plaintiff would need to produce “more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood [of] injury.” Id. at 35, 36 (emphasis in original).
In so holding, the Court rejected the defendants’ argument that the plaintiff’s claim was not cognizable because he had not alleged any present harm, explaining: “We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate’s current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.” Id. at 33. The Court noted several other examples of
10

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 11 of 32
circumstances where inmates might obtain an “injunction” to remedy a “plainly . . . unsafe, life-threatening condition in their prison” even though “nothing yet had happened to them.” Id. One such circumstance was “exposure of inmates to a serious, communicable disease [even if the] inmate shows no serious current symptoms.” Id. In short, the Court found that “a remedy for unsafe conditions need not await a tragic event.” Id.
2. Serious Medical Needs A civil detainee also may show that his detention “amounts to punishment” and therefore violates the Due Process Clause by demonstrating that officials are acting with deliberate indifference to his serious medical needs. “That is true whether the deliberate indifference is manifested by prison doctors in their response to the prisoner’s needs, or by prison guards who intentionally deny or delay access to medical care or intentionally deny or delay access to the treatment once prescribed.” Charles v. Orange Cty., 925 F.3d 73, 85 (2d Cir. 2019). A civil detainee may establish an unconstitutional deprivation of medical care by showing “(1) that [he has] a serious medical need . . . , and (2) that the [d]efendants [have] acted with deliberate indifference to such needs.” Id. at 86 (citation omitted). The “objective,” serious-medical-needs prong “contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain.” Id. (citation omitted). “In determining whether a medical need is sufficiently serious to be cognizable as a basis for a constitutional claim for deprivation of medical care, [courts] consider factors such as whether a reasonable doctor or patient would find the injury important and worthy of treatment, whether the medical condition significantly affects an
11

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 12 of 32
individual’s daily activities, and whether the illness or injury inflicts chronic and substantial pain.” Id. (citation omitted).
The “mens rea,” deliberate-indifference prong mirrors the standard discussed above in the context of a conditions-of-confinement claim. See id. at 86-87. “[A] detainee asserting a [Due Process] claim for deliberate indifference to his medical needs can allege either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his 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.” Id. at 87 (emphasis in original). “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.” Id. (citations omitted). “A factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. (quoting Farmer, 511 U.S. 825, 842 (1994)).
B. Application 1. Objective: Unsanitary Conditions and/or Serious Medical Needs
The petitioners make two separate (though related) arguments. The first is that the conditions at BFDF subject them to a heightened risk of contracting COVID-19. They argue that this heightened risk—together with the high death rates among those over a certain age or with underlying conditions like theirs who contract COVID-19, even if they receive treatment—amounts to an unreasonably high risk of serious injury or death. The second is that if they contract COVID-19, they will not receive adequate care at or through BFDF.
12

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 13 of 32
This Court is unpersuaded by the second argument. The petitioners have not presented any evidence that BFDF could not provide them with adequate care, including by transporting them to local hospitals. The point of reference must be what someone would receive were he or she not in state custody. And the petitioners have not persuaded the Court that BFDF could not provide, or would deny them, such care. The respondents, on the other hand, have shown that they are providing detainees with 24/7 access to medical professionals, see Docket Item 42-4 at 2 (Declaration of Jeffrey Searls, administrator of BFDF (“Searls Decl.”)), and have represented that if a detainee is infected, he or she would be kept in isolation and immediately hospitalized if necessary, see Docket 42-1 at 3 (Declaration of Captain Abelardo Montalvo, M.D. (“Montalvo Decl.”)).
So the question is whether the petitioners’ first argument has any teeth. In other words, is the expected risk to the petitioners’ health and safety from COVID-19 so high that the respondents cannot, as a constitutional matter, force the petitioners to live in conditions that pose a heightened risk of contracting the disease? If so, does their current living situation heighten the risk of contraction? In Due Process language: Does forcing high-risk detainees to live in a congregate setting during the COVID-19 pandemic pose a risk that “society considers . . . so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk”? See Helling, 509 U.S. at 36 (emphasis in original). If so, are the efforts the respondents have taken to ameliorate that risk of contraction sufficient?
This Court is trained in the law, not medicine. The best it can do in this situation is turn to the experts. And the guidance from experts, including many government
13

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 14 of 32
experts, is that the health risks posed by COVID-19 to individuals over a certain age or with certain underlying medical conditions are indeed grave.
a. Health and Safety Risks Posed by COVID-19 First, COVID-19 poses a grave risk for those over 65 or with certain underlying health conditions. According to one of the petitioners’ medical experts, Robert B. Greifinger, M.D., “COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions.” Docket Item 3 at 1-2 (“Greifinger Decl.”); see also Docket Item 4 at 2 (“Goldenson Decl. I”); Docket Item 7 at 2 (declaration of Jonathan Louis Golob, M.D., Ph.D. (“Golob Decl.”)). There is no vaccine to prevent COVID-19, nor is there a known cure or anti-viral treatment at this time. Docket Item 7 at 2 (Golob Decl.). Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, estimated on March 31, 2020, that between 100,000 and 240,000 will die of COVID-19. Michael D. Shear et al., Coronavirus May Kill 100,000 to 240,000 in U.S. Despite Actions, Officials Say, N.Y. Times, Mar. 31, 2020, https://www.nytimes.com/2020/03/31/us/politics/coronavirus-death-toll-unitedstates.html. The CDC has concluded that “[p]eople aged 65 years and older” might be at higher risk for severe illness from COVID-19. See People who are at higher risk for severe illness, Ctrs. for Disease Control and Prevention (March 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fspecific-groups%2Fhigh-risk-complications.html; see also Docket Item 3 at 1-2 (Greifinger Decl.) (“[T]he risk of serious disease and death among those with COVID-19
14

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 15 of 32
increases with age, with 78% of reported deaths occurring in people over the age of 65. More than 50% of COVID-19 related intensive care admissions and more 80% of COVID-19 deaths were among people 65 years old or older.”); cf. Docket Item 4 at 2 (Goldenson Decl. I) (“Older individuals . . . are at greater risk of becoming seriously ill or dying from the illness. (It is well-accepted within the medical community that, due to the burden of chronic illnesses and unhealthy lifestyle choices of many of many those housed in correctional facilities, incarcerated individuals over the age of 50 years old are considered to be elderly.)”); Docket Item 5 at 1 (Declaration of Marc F. Stern, M.D. (“Stern Decl.”)) (“Vulnerable people include people over the age of 50.”); Docket Item 7 at 1 (Golob Decl.) (“People over the age of fifty are at higher risk, with those over 70 at serious risk.”).
The CDC also has advised that “[o]ther high-risk conditions could include: [p]eople with chronic lung disease or moderate to severe asthma[; p]eople who have serious heart conditions[; p]eople who are immunocompromised . . . [; p]eople of any age with severe obesity (body mass index [BMI] of 40 or higher)[; p]eople with diabetes[; p]eople with chronic kidney disease undergoing dialysis[; or p]eople with liver disease.” See People who are at higher risk for severe illness, supra; see also Docket Item 4 at 2 (Goldenson Decl. I) (“[T]hose with serious chronic medical conditions, such as heart disease, diabetes and lung disease, are at greater risk of becoming seriously ill or dying from the illness.”); Docket Item 5 at 1 (Stern Decl.) (“The effects of COVID-19 are very serious, especially for people who are most vulnerable[,] . . . includ[ing] people . . . of any age with underlying health problems such as—but not limited to—weakened
15

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 16 of 32
immune systems, hypertension, diabetes, blood, lung, kidney, heart, and liver disease, and possibly pregnancy.”).
The CDC recently released an analysis of 7,162 cases of COVID-19 in the United States for which data on the patient’s underlying health was available. CDC COVID-19 Response Team, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019—United States, February 12–March 28, 2020, Morbidity and Mortality Weekly Report, at 1-2 (Mar. 31, 2020), http://dx.doi.org/10.15585/mmwr.mm6913e2. 78% of those admitted to the intensive care unit had at least one pre-existing condition, including diabetes, lung disease, cardiovascular disease, renal disease, or an otherwise compromised immune system. Id.
This Court therefore “takes judicial notice that, for people of advanced age, with underlying health problems, or both, COVID-19 causes severe medical conditions and has increased lethality.” Basank v. Decker, 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020) (citing Fed. R. Evid. 201(b)) (additional citations omitted). Numerous Courts, including several in this circuit, have reached similar conclusions. See Coronel v. Decker, 2020 WL 1487274, at *4 (S.D.N.Y. Mar. 27, 2020); Hernandez v. Decker, 2020 WL 1547459, at *3 (S.D.N.Y. Mar. 31, 2020); Basank, 2020 WL 1481503, at *5.
b. Risk of COVID-19 Infection in a Congregate Setting The petitioners also have shown that they face a heightened risk of contracting COVID-19. At oral argument, the respondents confirmed that the petitioners are currently being housed within the general population at the BFDF. They eat communally, use shared restrooms, and are housed in either shared cells or in dorm-
16

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 17 of 32
style housing.7 Government experts and the petitioners’ experts agree that such a communal-living style congregate setting increases the infection rate.
For example, the CDC advises: People in correctional and detention facilities are at greater risk for some illnesses, such as COVID-19, because of close living arrangements with other people. The virus is thought to spread mainly from person-to-person, through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or be launched into the air and inhaled into someone’s lungs. It is possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or eyes; however, this is not the most likely way the virus spreads. See FAQs for administrators, staff, people who are incarcerated, families, Ctrs. for Disease Control and Prevention (Mar. 28, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/faq.html. The United States Attorney General largely concurs. See, e.g., Docket Item 15 at 4 (United States Attorney General, Memorandum to the Director of the Federal Bureau of Prisons: Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (March 26, 2020)) (“I am hereby directing you to prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID19 pandemic. Many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care. But for some eligible inmates, home confinement might be more effective in protecting their health.”). For their part, the petitioners’ experts assert strongly that congregate settings like those at BFDF heighten the risk of contracting COVID-19. “The conditions of
7 The government could not confirm, however, how many individuals are in each room in the dormitories.
17

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 18 of 32
congregate settings, such as jails and immigration detention facilities, pose a heightened public health risk to the spread of COVID-19, even greater than other noncarceral institutions.” Docket Item 3 at 3 (Greifinger Decl.). The experts point to a host of reasons for this heightened risk of contraction, including crowding, the proportion of vulnerable people detained, the lack of ventilation, and often scant medical-care resources. Docket Item 3 at 4-5 (Greifinger Decl.); Docket Item 5 at 2 (Stern Decl.). They point in particular to the fact that detainees cannot practice the “social distancing” measures needed to contain the spread because detainees share toilets, sinks, and showers; sleep in communal dorms or barracks-style rooms and eat communally; and eat food prepared and served communally as well. Docket Item 3 at 5 (Greifinger Decl.); Docket Item 5 at 2 (Stern Decl.). They also highlight that daily staff rotations increase the risk of infection. Docket Item 3 at 5 (Greifinger Decl.); Docket Item 5 at 2 (Stern Decl.); see also Docket Item 5 at 2 (Stern Decl.) (“To the extent that detainees are housed in close quarters, unable to maintain a six-foot distance from others, and sharing or touching objects used by others, infectious diseases that are transmitted via the air or touch are more likely to spread, placing people at risk. . . . For these reasons, if—but more likely when—COVID-19 is introduced into the facility, the risks of spread is greatly, if not exponentially, increased as already evidenced by spread of COVID-19 in two other congregate environments: nursing homes and cruise ships.”).
What is more, the findings regarding the risk of contracting COVID-19 in a communal setting are true even though there presently are no reported cases at BFDF.
18

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 19 of 32
Docket Item 42-1 at 4.8 Community spread is nationwide at this point, and there are
reported cases in all eight of Western New York’s counties. See Live: Coronavirus
Cases in Western New York, Rochester Regional Health (Apr. 1, 2020),
https://www.rochesterregional.org/news/2020/02/coronavirus-in-new-york. Moreover,
there are least two confirmed cases at the Wende Correctional Facility, through which
all persons transferring from a New York State prison into ICE custody at BFDF are
8 The government argues that the petitioners have not met their burden in this case because they have not shown that they would be at lower risk in many of the locations to which they would travel if released. Indeed, the government asserts that most of the petitioners would be no safer outside BFDF than inside because they plan to travel to areas of the country with significant outbreaks of COVID-19. See Docket Item 42-5 at 2, 16-17. A majority of the petitioners represent that, if released, they would reside with friends or family in the New York metropolitan area. See Docket Items 16, 28.
In light of the injunctive relief ordered today, the Court need not address this argument in depth. It notes, however, that the government misconstrues the nature of the legal claims at issue here. The Fifth Amendment right to confinement in conditions that do not pose an unreasonable risk to health and safety derives from the fact that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being. . . . [because] it [has] render[ed] him unable to care for himself.” Helling, 509 U.S. at 32 (alterations in original) (quoting DeShaney, 489 U.S. at 199-200). So a condition can be unconstitutional only when an individual forcibly is held in state custody. The violation necessarily ends when the individual no longer is in state custody. At that point, the state no longer owes him a duty of reasonable care. See DeShaney, 489 U.S. at 199-200.
What is more, the respondents’ argument does not, as a factual matter, address the petitioners’ claim. Even if it is true that the petitioners would face greater hurdles to accessing treatment and care in New York, that does not carry the day. As this Court already has found, the petitioners are not being denied access to care. The relevant factual question is whether the petitioners are at an unconstitutionally greater risk of contracting the disease at BFDF than if they were not detained. And on that question, the respondents have not presented any data to that effect. If the petitioners follow the “social distancing” measures put in place by the Governor—and the Court has no reason to believe they would not, given their risk factors—there is no reason to believe they would be at greater risk of contraction in New York than at BFDF.
19

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 20 of 32
processed. Docket Item 1 at 4. And the petitioners’ expert has concluded that “it is highly likely, and perhaps inevitable, that COVID-19 will reach the immigration detention facilities in New York.” Docket Item 3 at 3 (Greifinger Decl.). “[A] remedy for unsafe conditions need not await a tragic event.” Helling, 509 U.S. at 33; see also Coronel, 2020 WL 1487274, at *1 (granting four immigration detainees’ motion for a TRO and ordering their immediate release where they “represented . . . that there [had] been confirmed cases at two of the three facilities where [they were] detained”). What then of the respondents’ efforts to ameliorate the heightened risk of contracting this dangerous disease?
2. “Mens Rea”: Deliberate Indifference As an initial matter, there is no dispute that the respondents have actual knowledge of the petitioners’ serious needs. On March 22, 2020, and again on March 25, 2020, the petitioners notified the government about the particular circumstances of their cases and their high risk of harm. See Docket Item 9 at 10 (Petitioners’ Memorandum of Law). The question is what the respondents have done with the knowledge. The respondents have taken substantial steps toward protecting the health and safety of the individuals detained at BFDF. Captain Abelardo Montalvo, M.D., the Eastern Regional Clinical Director with ICE Health Services Corps, reviewed the measures currently being taken at BFDF to protect the detainees’ health and safety. He attests to the following facts. Docket Item 42-1 (Montalvo Decl.). Since March 12, 2020, incoming detainees at BFDF are “checked with a thermometer for fever.” Docket Item 42-1 at 3. They also are “asked to confirm if they
20

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 21 of 32
have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through areas with sustained community transition in the past two weeks.” Id. at 2-3. “Detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be placed in the BFDF medical bay or referred to a local hospital.” Id. at 3. Detainees with known exposure to a person with confirmed COVID19 but who are asymptomatic “are placed in a quarantine with restricted movement for” up to 14 days and “monitored daily for fever and symptoms of respiratory illness.” Id. Quarantine “involves housing [exposed but asymptomatic] detainees together.” Id. And new detainees arriving at the facility “will be placed in quarantined dorms and separated from the general population for 14 days until cleared. If new persons are added, or someone becomes ill, then the 14-day quarantine restarts.” Id. at 4.9
BFDF also “has increased sanitation frequency and thoroughness.” Id. at 4. The facility uses paid “detainee workers to reduce the contact rate between ICE staff and detainees and . . . limit any exposure between populations.” Id. at 4. Personal visits have been temporarily suspended—though counsel is able to visit in “no-contact” rooms—and BFDF has been providing and continues to provide education to detainees
9 At oral argument, the respondents stated that all new arrivals are isolated from the general population upon arrival. The respondents’ declarations leave some question as to whether this policy indeed applies to all new arrivals or only to those who confirm contact with an infected individual, see Docket Item 42-1 at 3 (Montalvo Decl.), those arriving from a hospital, see id. at 4, and those arriving from other detention facilities, see Docket Item 42-4 at 4 (Searls Decl.). The Court assumes the veracity of the respondents’ counsel’s representation at argument but expects confirmation of that fact in the isolation plan it orders today.
21

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 22 of 32
regarding best practices to prevent the spread of COVID-19. Id. at 4-5. Additionally, “[g]atherings of detainees have been cancelled or are being completed in dorms and their respective outdoor areas.” Id. at 5.
These measures are commendable and likely have prevented some measure of spread and mitigated some of the risks facing the respondents. But the fact is that none of the steps discussed by Capt. Montalvo includes the “social distancing” measures recommended—especially for high-risk individuals—by the CDC, the New York State Department of Health, and the petitioners’ experts, to name a few.
The CDC has recommended that people who are at higher risk should “[s]tay home.” See People who are at higher risk for severe illness, supra. The State of New York has said even more. On March 20, 2020, the Governor issued an executive order with the following guidance for New Yorkers over 70 and with underlying health conditions: “[r]emain indoors; . . . go outside [only] for solitary exercise; [p]re-screen all visitors and aides by taking their temperature and seeing if person is exhibiting other flulike symptoms; [d]o not visit households with multiple people; [w]ear a mask when in the company of others; [t]o the greatest extent possible, everyone in the presence of vulnerable people should wear a mask; [a]lways stay at least six feet away from individuals; and [d]o not take public transportation unless urgent and absolutely necessary.” Governor Cuomo Signs the ‘New York State on Pause’ Executive Order, New York State Office of Governor Andrew Cuomo (Mar. 20, 2020), https://www.governor.ny.gov/news/governor-cuomo-signs-new-york-state-pauseexecutive-order.
22

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 23 of 32
In fact, the Governor and state health officials have concluded that the risks posed by COVID-19 are so grave that it has taken a number of unprecedented steps affecting all New Yorkers, even those with no particular vulnerability to the disease. On March 7, 2020, Governor Cuomo declared a state of emergency for all of New York State. See N.Y. Exec. Order No. 202 (Mar. 7, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.pdf. And in stages beginning on March 16, 2020, the Governor ordered the closing of all schools and universities, as well as nearly all businesses and places of public accommodation, and he has prohibited non-essential gatherings of any size through at least April 15, 2020.10 Governor Cuomo is far from alone in ordering these drastic measures. See Coronavirus: Three out of four Americans under some form of lockdown, BBC World News (Mar. 31, 2020), https://www.bbc.com/news/world-us-canada-52103066. And the New York State Department of Health advises that “[w]hen in public[,] individuals must practice social distancing of at least six feet from others.” Governor Cuomo Signs the ‘New York State on Pause’ Executive Order, supra (emphasis added).
10 See N.Y. Exec. Order No. 202.3 (Mar. 16, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.3.pdf; N.Y. Exec. Order No. 202.4 (Mar. 16, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO%20202.4.pdf; N.Y. Exec. Order No. 202.5 (Mar. 18, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202_5.pdf; N.Y. Exec. Order No. 202.8 (Mar. 20, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.8.pdf; N.Y. Exec. Order No. 202.11 (Mar. 27, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202_11.pdf; N.Y. Exec. Order No. 202.12 (Mar. 30, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.13.pdf.
23

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 24 of 32
The petitioners’ experts urge the importance of these same “social distancing” measures. “The only way to mitigate the rapid spread of COVID-19 is to use scrupulous hand hygiene and social distancing, self-quarantine for individuals who may have been exposed, and isolation at a home or care facility for those who have been infected.” Docket Item 3 at 2 (Greifinger Decl.); see also Docket Item 4 at 2 (Goldenson Decl. I); Docket Item 5 at 1 (Stern Decl.) (“COVID-19 is a novel virus. There is no vaccine for COVID-19, and there is no cure for COVID-19. No one has prior immunity. The only way to control the virus is to use preventive strategies, including social distancing.”).
The respondents so far have not made it possible for individuals with the CDCidentified vulnerabilities to take these steps. It has not, for example, isolated higher risk individuals from other detainees or from staff who rotate daily in and out of the facility. Nor is it testing all incoming detainees or the staff that comes and goes. That failure is particularly concerning given that the CDC recently reported that as many as 25 percent of people infected with COVID-19 may not show symptoms. See Apoorva Mandavelli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatictransmission.html?action=click&module=Spotlight&pgtype=Homepage; see also Docket Item 5 at 1 (Stern Decl.) (“It is believed that people can transmit the virus without being symptomatic and, indeed, that a significant amount of transmission may be from people who are infected but asymptomatic or pre-symptomatic.”). The petitioners also continue to eat their meals in communal settings and share bathing facilities, indicating that “social distancing” is not possible at this time. And the respondents have not provided the petitioners or other high-risk detainees with masks as recommended by the New
24

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 25 of 32
York State Department of Health. Cf. Docket Item 42-1 at 4 (Montalvo Decl.) (explaining that “[d]etainee workers” are provided goggles” and “gloves” (emphasis added)).
In light of the decisions of a number of executive branch officials at both the state and federal level, it seems clear that “social distancing” for those with heightened COVID-19 risks is the most effective form of preventing a serious threat to the health and safety of those persons. Moreover, the recommended measures for preventing the spread of COVID-19 are unprecedented. Indeed, this Court is not aware of any other disease that caused New York State—let alone most of the nation—to decide that the only reasonable course of action was to shutter the economy, shelter in place, and isolate at home for weeks on end.
In short, the government’s recommendations to the public suggest that those with certain conditions should not assume the risk of social contact. Indeed, New York State has prohibited individuals from assuming that risk. A measure that the government has forcibly—under threat of civil penalties—imposed on all persons within its jurisdiction cannot, at the same time, be forcibly denied to some portion of that population. The result compelled by this finding is that the respondents are acting with deliberate indifference to the health and safety of those petitioners with the conditions identified by the CDC by holding them in a congregate, communal-living setting where “social distancing is an oxymoron.” See Docket Item 9-1 at 5 (Letter from Scott Allen, M.D., F.A.C.P., and Josiah D. Rich, M.D., M.P.H., to the House Committees on Homeland Security and Oversight and Reform, Mar. 19, 2020) (“Allen Letter”)); see also Hernandez, 2020 WL 1547459 at *3 (finding that measures such as “modification of the
25

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 26 of 32
intake process and increasing sanitation frequency . . . [were] ‘patently insufficient’ to protect any detainees from infection absent ‘enforcement of requisite social distancing’” (alteration in original) (quoting Basank, 2020 WL 1481503, at *5)).
In other words, the respondents have actual knowledge of serious risks to the health and well-being of individuals with the vulnerabilities identified by the CDC and have not taken adequate steps to protect the petitioners who have such vulnerabilities against those risks. See also Hernandez, 2020 WL 1547459 at *2 (concluding that the civil-immigration-detainee petitioner was likely to succeed on his deliberate-indifference claim because the respondents had “not taken any action to address the particular risks that COVID-19 poses to high-risk individuals like [the p]etitioner”); Coronel, 2020 WL 1487274, at *6 (same); Basank, 2020 WL 1481503, at *5 (same). But see Sacal-Micha v. Longoria, 2020 WL 1518861 (S.D. Tex. Mar. 27. 2020); Dawson v. Asher, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020). Because the high-risk petitioners are held in the respondents’ “custody . . . against [their] will” and therefore “unable to care for [themselves],” see Helling, 509 U.S. at 32 (citation omitted), the respondents’ failure to take these steps is a violation of their substantive rights under the Due Process Clause.
C. Conclusion This Court finds that those petitioners who have the COVID-19 vulnerabilities identified by the CDC have demonstrated a likelihood of succeeding on their claim that the respondents are acting with deliberate indifference to unreasonably unsafe conditions at BFDF and to those petitioners’ serious medical needs. The Court acknowledges both that such a finding is extraordinary and that the respondents themselves have been impacted by the COVID-19 pandemic in a variety of ways that
26

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 27 of 32
have affected their ability to respond to the outbreak. But the Court’s goal is neither to assign blame nor to justify past efforts. It is instead to ensure that the petitioners’ constitutional rights—here, their right to liberty and possibly life—are protected.
II. 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 TRO “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 remote nor speculative, but actual and imminent.” Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (citation omitted).
The petitioners have established 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) (emphasis in original) (citation omitted). As discussed above, the petitioners have adequately alleged that their substantive 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.” (citations omitted)).
27

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 28 of 32
Second, irreparable harm exists where, as here, the moving individuals “face imminent risk to their health, safety, and lives.” Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 214 (E.D.N.Y. 2000) (citation omitted), aff’d sub nom. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003). For all the reasons discussed above, those petitioners with the CDC-identified vulnerabilities face a grave, irreparable risk to their health and safety if they remain confined under current conditions at BFDF.
III. BALANCE OF 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).
The petitioners and the public both 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”). Moreover, under the circumstances here, the public interest in ensuring public health is also best served by the petitioners’ being confined in conditions that do not pose a substantial risk of their contracting COVID-19. As one of their medical experts points out, a COVID-19 outbreak at a detention facility “could result in multiple detainees—five, ten or more— being sent to the local community hospital where there may only be six or eight ventilators over a very short period. As they fill up and overwhelm ventilator resources, those ventilators become unavailable for all the usual critical illnesses.” Docket Item 9-1 at 5 (Allen Letter). And ventilators used to treat detainees cannot be used to treat others who contract the virus. See Docket Item 5 at 3 (Stern Decl.) (“Reducing the
28

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 29 of 32
spread and severity of infection in a federal immigration detention center slows, if not reduces, the number of people who will become ill enough to require hospitalization where they will be using scarce community resources (ER beds, general hospital beds, ICU beds) which in turn reduces the health and economic burden to the local community at large.”); Docket Item 3 at 5 (Greifinger Decl.) (“Releasing individuals, and prioritizing the most vulnerable, reduces the burden on local health care resources, as it reduces the risk of transmission of the disease to a large number of people living in close proximity for an extended period of time. It also reduces the risk of transmission to staff.”). “In the alternate scenario where detainees” are either confined in conditions facilitating “social distancing” or are released, “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.” Docket Item 9-1 at 5 (Allen Letter).
The respondents argue that the Western New York community would be able to serve the needs of the petitioners and that the public interest therefore tips in their favor. In support of that claim, they have presented data on available health beds in the area surrounding BFDF. See Docket Item 42-3 at 6. But they have not provided data on, for example, the number of available ventilators. Nor have they provided projections on the rate of spread in the surrounding community or any expert testimony to the effect that the community could sustain an outbreak at BFDF as community spread outside the facility—including in other carceral facilities—also increases. The Court therefore finds that the public interest favors the petitioners.
29

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 30 of 32
IV. REMEDY
For the reasons stated above, the petitioners have met the criteria for a TRO.
The next question is what remedy is appropriate under the circumstances. The
petitioners seek their immediate release under conditions of supervision and, ultimately,
a writ of habeas corpus under 22 U.S.C. § 2241.
Section 2241(c)(3) provides: “The writ of habeas corpus shall not extend to a
prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of
the United States.” Courts are divided on whether section 2241 provides a vehicle for
challenging (and a remedy for addressing) allegedly unconstitutional conditions of
confinement.11
This Court need not resolve these difficult questions at this junction because the
Second Circuit “has long interpreted [section] 2241 as applying to challenges to. . .
11 Compare Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (“This court has long interpreted [section] 2241 as applying to challenges to the execution of a federal sentence [and seeking injunctive relief], “including such matters as the administration of parole, . . . prison disciplinary actions, prison transfers, type of detention and prison conditions.” (citations omitted)), with Spencer v. Haynes, 774 F.3d 467, 469 (8th Cir. 2014) (drawing a bright line between claims that challenge the “validity” or “length” of a conviction, which may be brought under section 2241, and those that challenge “the conditions of confinement,” which may not) and Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005) (distinguishing between a section 2241 petitioner who requests a “quantum change in the level of custody, which must be addressed by habeas corpus,” and a petitioner who requests “a different program or location or environment, which raises a civil rights claim” and holding that “[i]f an inmate establishe[s] that his medical treatment amounts to cruel and unusual punishment, the appropriate remedy would be to call for proper treatment, or to award him damages; release from custody is not an option.” (citation omitted)) and Gomez v. United States, 899 F.2d 1124 (11th Cir. 1990) (same)) and Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (same)) and Cook v. Hanberry, 596 F.2d 658, 660 (5th Cir. 1979) (same)). Cf. Bell, 441 U.S. at 526 n.6 (1979) (“[L]eav[ing] to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.” (citation omitted)).
30

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 31 of 32
prison conditions,” Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (citation
omitted)—at least to the extent the petitioners seek a remedy short of release—and this
Court is not convinced that the unconstitutional conditions at BFDF cannot be remedied
through an injunction.
That is so because BFDF currently is at roughly half of its capacity to house
detainees. Docket Item 42-1 at 4. So it remains plausible that the respondents could
rectify the ongoing violation by providing those petitioners who meet the CDC’s
definition of vulnerable individuals with a living situation that facilitates “social distancing.”12 The respondents might, for example, house those individuals in individual
cells or units with a limited number of individuals akin to a family unit outside the facility;
eat their meals, bathe, and shower in isolation or only among those in their smaller unit;
have extremely limited contact with both other detainees and staff, all of whom are
screened for fevers; and are provided masks to wear when contact is necessary. The
Court leaves the task of identifying which petitioners satisfy the CDC criteria, and how to
facilitate their “social distancing,” to the respondents’ medical staff—at least in the first instance.13
12 Governor Cuomo, in concert with the New York State Department of Health, advises the following actions: “[r]emain indoors; . . . go outside [only] for solitary exercise; [p]re-screen all visitors and aides by taking their temperature and seeing if person is exhibiting other flu-like symptoms; [d]o not visit households with multiple people; [w]ear a mask when in the company of others; [t]o the greatest extent possible, everyone in the presence of vulnerable people should wear a mask; [a]lways stay at least six feet away from individuals; and [d]o not take public transportation unless urgent and absolutely necessary.” Governor Cuomo Signs the ‘New York State on Pause’ Executive Order, supra.
13 As discussed above, the CDC explains that “[o]ther high-risk conditions could include: [p]eople with chronic lung disease or moderate to severe asthma[; p]eople who have serious heart conditions[; p]eople who are immunocompromised . . . [; p]eople of any age with severe obesity (body mass index [BMI] of 40 or higher)[; p]eople with
31

Case 1:20-cv-00361-LJV Document 44 Filed 04/02/20 Page 32 of 32
ORDER The respondents shall report to the Court no later than 5:00 p.m. on April 3, 2020, with a detailed plan explaining how they will identify which petitioners meet the CDC’s high-risk criteria and how they will facilitate those individuals’ taking any or all of the “social distancing” measures recommended by the CDC and New York State Department of Health. No later than 9:00 a.m. on April 6, 2020, the respondents shall report to the Court as to whether any or all of the steps outlined in the plan have been taken and, if so, which ones. They also shall identify for which petitioners the measures have been taken and provide a brief explanation why any petitioner does not meet the CDC’s high-risk criteria. The Court then will decide whether the constitutional violation has been remedied and whether further action of the Court is required.
IT IS SO ORDERED. Dated: April 2, 2020
Buffalo, New York
/s/ Lawrence J. Vilardo LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE
diabetes[; p]eople with chronic kidney disease undergoing dialysis[; or p]eople with liver disease.” See People who are at higher risk for severe illness, supra.
32

 
 Case 1:20-cv-00361-LJV Document 54 Filed 04/07/20 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

VERNON JONES, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-361 ORDER

On March 25, 2020, the petitioners, civil immigration detainees held in the custody of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) at the Buffalo Federal Detention Facility in Batavia, New York (“BFDF”), filed an “Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint for Injunctive Relief.” Docket Item 1. The following day, the petitioners filed a motion for a temporary restraining order (“TRO”). See Docket Item 8. The petitioners allege that their continued civil detention in the wake of the COVID-19 pandemic violates their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, and they seek their immediate release from ICE custody. Docket Item 1 at 23-24. Each petitioner is “either over the age of fifty and/or [has] a serious underlying medical condition, making [him] more vulnerable to complications arising from COVID-19.” Id. at 4. On March 31, 2020, this Court held oral argument on the TRO. See Docket Item 43.
On April 2, 2020, this Court granted the petitioners’ motion for a TRO in part and denied it in part. Docket Item 44. More specifically, the Court found that holding the

Case 1:20-cv-00361-LJV Document 54 Filed 04/07/20 Page 2 of 5
petitioners in the then-current conditions at BFDF during the COVID-19 epidemic violated their substantive Due Process rights to reasonably safe conditions of confinement. Id. at 14-27. But it was “not convinced” that release was the appropriate remedy—at least at that juncture. Id. at 30-31. Instead, the Court ordered the respondents to provide those petitioners who are vulnerable individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), with a living situation that facilitates “social distancing.” Id. at 31-32.
On April 3, 2020, Captain Abelardo Montalvo, M.D., informed the Court that he had identified 13 petitioners as meeting the CDC’s definition of vulnerable individuals. Docket Items 45, 47. On April 4, 2020, respondent Jeffrey Searls, Officer in Charge of BFDF, attested that, of those 13 petitioners, 8 were provided with their own cells. Id. at 48. The remaining 5 petitioners were placed in dormitory units and given “[b]eds . . . adjoined by vacant beds to ensure social distancing of detainees in the beds, as far as practicable.” Id. at 2-3. These individuals could not be placed in their own cells because “BFDF has to abide by certain rules with respect to detainee populations. Specifically, Performance-Based National Detention Standards mandate that low level detainees not be housed with high and medium-high level criminal detainees.” Docket Item 47 at 5. One of the three individual-cell units at BFDF is reserved for quarantining incoming detainees; the remaining two are reserved for high- and medium-high-level detainees and therefore not available to house low-level individuals such as petitioners Concepcion, Falodun, Sow, Adelakun, and Nwankwo. Id.
Captain Montalvo also represented that all 13 vulnerable petitioners would be afforded the following “social distancing” measures:
2

Case 1:20-cv-00361-LJV Document 54 Filed 04/07/20 Page 3 of 5
a. Maintaining a distance of 6 feet between individuals; b. Providing space at meal time so that each detainee can remain 6 feet away from any other detainee, and allowing detainees to eat at their beds for maximum distancing; c. Pre-screening all visitors to the housing units (which will consist solely of BFDF staff) by taking temperatures and seeing if the person is exhibiting flulike symptoms; d. Providing for individual cells and/or beds with 6 feet of separation between each bed; e. Providing outdoor recreation in areas allowing for detainees to maintain 6 feet of separation from any other detainee. Docket Item 45 at 2. On April 4, 2020, respondent Searls “confirm[ed]” that these measures “ha[ve] been implemented to the fullest extent possible.” Docket Item 47 at 1. One April 7, 2020, the Court again held argument on the TRO. The Court found that housing any vulnerable individuals in a dormitory-style setting is insufficient to remedy the previously-identified Due Process violations. It also found that because the petitioners’ constitutional rights under the Due Process Clause outweigh the respondents’ purported interests in meeting the “Performance-Based National Detention Standards,” low-level petitioners should be housed in the high- and medium-high-leveldetainee units to the extent doing so would not otherwise endanger those individuals. The Court concluded by noting the vagueness of respondent Searls’s declaration that the respondents were facilitating “social distancing” measures “to the fullest extent possible” and “as far as practicable.” See Docket Item 47 at 1-3. It therefore ordered the respondents to provide clarification on several outstanding issues.
3

Case 1:20-cv-00361-LJV Document 54 Filed 04/07/20 Page 4 of 5
ORDER In light of the above, IT IS HEREBY ORDERED that on or before April 8, 2020, at 5:00 p.m., the petitioners shall file and serve an affidavit from Captain Montalvo or another qualified individual (1) opining whether individuals with epilepsy and/or those who are over 50 years of age and confined to detention facilities similar to BFDF meet the CDC’s criteria for vulnerable individuals and explaining the reasons for that conclusion , (2) detailing the types and quantities of personal protective equipment (“PPE”) available to the vulnerable petitioners, and (3) detailing the types of PPE available to staff who interact with the vulnerable petitioners; and it is further ORDERED that on or before April 8, 2020, at 5:00 p.m., the petitioners shall either (a) file and serve an affidavit from respondent Searls or another qualified individual confirming that petitioners Concepcion, Falodun, Sow, Adelakun, and Nwankwo have been placed in individual cells and that all vulnerable petitioners have been allowed to practice the “social distancing” measures identified in Captain Montalvo’s April 3, 2020 affidavit; or (b) show cause why this Court should not order the petitioners to immediately reduce the detainee population to a level that would facilitate such actions; and it is further ORDERED that on or before April 8, 2020, at 5:00 p.m., the petitioners also may submit additional affidavits to this Court supporting their claims that BFDF is unable to comply with this Court’s orders in this matter; and it is further
4

Case 1:20-cv-00361-LJV Document 54 Filed 04/07/20 Page 5 of 5

ORDERED that the parties shall appear by telephone for argument on April 9, 2020, at 10:00 a.m.

SO ORDERED.

Dated:

April 7, 2020 Buffalo, New York

/s/ Lawrence J. Vilardo LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE

5

 
 Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 1 of 12

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

SHANE RAMSUNDAR, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-402 ORDER

VERNON JONES, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-361 ORDER

The petitioners in these two actions are 27 civil immigration detainees held in the custody of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) at the Buffalo Federal Detention Facility in Batavia, New York (“BFDF”). They have filed “Emergency Petition[s] for Writ[s] of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint[s] for Injunctive Relief.” Jones v. Wolf, No. 20-CV-361 Docket Item 1; Ramsundar v. Wolf, No. 20-CV-402 Docket Item 1. They also have filed motions for temporary restraining orders (“TRO”). See Jones, Docket Item 8; Ramsundar, Docket Item 2. In both cases, the petitioners allege that their continued civil detention in the wake of the COVID-19 pandemic violates their

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 2 of 12
substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, and they seek their immediate release from ICE custody. Jones, Docket Item 1 at 23-24; Ramsundar, Docket Item 1 at 20. Each petitioner is “either over the age of fifty and/or [has] a serious underlying medical condition, making [him or her] more vulnerable to complications arising from COVID-19.” Jones, Docket Item 1 at 43; Ramsundar, Docket Item 1 at 4.
BACKGROUND On April 2, 2020, this Court found that holding certain of the Jones petitioners in the then-current conditions at BFDF during the COVID-19 epidemic violated their substantive Due Process rights to reasonably safe conditions of confinement. Jones v. Wolf, No. 20-CV-361, 20 WL 1643857 (W.D.N.Y. Apr. 2, 2020) at *14-27. But it was “not convinced” that release was the appropriate remedy—at least at that juncture. Id. at *30-31. Instead, the Court ordered the respondents to provide those petitioners who are vulnerable individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), with a living situation that facilitates “social distancing.” Id. at *3132. On April 6, 2020, this Court ordered the respondents in the Ramsundar matter to “show cause . . . why the Due Process violations identified this Court’s prior decision and order in Jones v. Wolf, No. 20-CV-361, 20 WL 1643857 (W.D.N.Y. Apr. 2, 2020), do not extend to the petitioners in this action.” See Ramsundar, Docket Item 4 at 2.
2

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 3 of 12
In response to these orders, the respondents’ medical expert, Captain Abelardo
Montalvo, M.D., has determined that petitioners who fall into one or more of the
following categories meet the CDC’s definition of vulnerable individuals:
a. People 65 years and older
b. People who live in a nursing home or long-term care facility
c. People of all ages with underlying medical conditions, particularly if not well controlled, including
i. People with chronic lung disease or moderate to severe asthma ii. People who have serious heart conditions iii. People who are immunocompromised . . . [including those with the following conditions]:
1. Cancer treatment 2. Smoking 3. bone marrow or organ transplant 4. immune deficiencies 5. poorly controlled HIV or AIDs, and 6. prolonged use of corticosteroids and other immune weakening medications v. People with severe obesity (body mass index [BMI] of 40 or higher) vi. People with diabetes vii. People with chronic kidney disease undergoing dialysis viii. People with liver disease.
Jones, Docket Item 57 at 2-3.
As of today, Captain Montalvo has identified 13 of the 22 remaining Jones
petitioners1 and 3 of the 4 Ramsundar petitioners as meeting these criteria. Jones,
Docket Item 45 at 4-5; Ramsundar, Docket Item 6-2 at 8. But Jones petitioners Donga,
Jules, Bhuyan, Cherry, Narain, Salcedo, Thomas, and Wilson, and Ramsundar
petitioner Antonio Espinoza do not meet these criteria. Jones, Docket Item 45 at 5-6;
Ramsundar, Docket Item 6-2 at 8.
1 Jones petitioner Shantadewie Rahmee was released on March 30, 2020. See Jones, Docket Item 42-5 at 1 n.1.
3

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 4 of 12
Respondent Jeffrey Searls, Officer in Charge of BFDF, has attested that of the 13 vulnerable Jones petitioners, 9 individuals—Blackman, Commissiong, Harsit, Lainez Mejia, Brathwaite, Espinal-Polanco, Forbes, Quintanilla-Mejia, and Sow—have been provided with their own cells; 2 individuals—Adelakun and Nwanwko—have been released; and 2 individuals—Concepcion and Falodun—remain in a communal-living situation under quarantine. Jones, Docket Item 47 at 2-3, Docket Item 59 at 3. He also has attested that of the 3 vulnerable Ramsundar petitioners, 1 individual—Shane Ramsundar—has been provided his own cell; 1 individual—Cedeno-Larios—has been released; and 1 individual—Gomatee Ramsundar—remains in a communal-living situation because BFDF does not have any individual cells for female detainees. Ramsundar, Docket Item 6-3 at 23-4, Docket Item 10 at 5-7.
Captain Montalvo also has represented that all vulnerable petitioners are afforded the following “social distancing” measures:
a. Maintaining a distance of 6 feet between individuals; b. Providing space at meal time so that each detainee can remain 6 feet away from any other detainee, and allowing detainees to eat at their beds for maximum distancing; c. Pre-screening all visitors to the housing units (which will consist solely of BFDF staff) by taking temperatures and seeing if the person is exhibiting flulike symptoms; d. Providing for individual cells and/or beds with 6 feet of separation between each bed; e. Providing outdoor recreation in areas allowing for detainees to maintain 6 feet of separation from any other detainee.
4

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 5 of 12
Jones, Docket Item 45 at 2. Captain Montalvo further represents that the following additional steps related to personal protective equipment (“PPE”) are being taken at BFDF “to help combat the introduction, and limit the spread, of COVID-19”:
. . . [c]arrying of masks for detainee use and staff use during transports or pick-ups; . . . [d]etainees who are moved out of the . . . quarantine unit[s] for any type emergency will be required to wear N-95 mask and gloves; . . . [i]ncreased stock of PPE and cleaning supplies; . . . [f]it testing of PPE masks for custody staff and removal of facial hair that may interfere with tight seal of mask to face; . . . [u]se of surgical masks for detainee use to reduce exposure; . . . [and w]eekly counting of PPE to monitor supplies. Ramsundar, Docket Item 6-2 at 6-7.
DISCUSSION
In Jones, this Court explained that the Due Process violation in these matters “stems from [the respondents’] failing to take the steps recommended by public health officials to protect high-risk individuals from contracting COVID-19.” 20 WL 1643857 at *1. But if the respondents could provide petitioners identified as vulnerable by the CDC with a living situation that facilitates “social distancing,” the violation would be rectified and judicially-ordered release would not be necessary. Id. at *14-15. It now considers whether the respondents’ measures suffice.
A. Released Individuals The respondents have released four of the original petitioners to these actions— Jones petitioners Rahmee, Adelakun, and Nwankwo, and Ramsundar petitioner Cedeno-Larios. “Under Article III of the Constitution, when a case becomes moot, the federal courts lack subject matter jurisdiction over the action.” Leybinsky v. U.S. Immigration and Customs Enforcement, 553 F. App’x 108, 109 (2d Cir. 2014) (summary
5

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 6 of 12
order) (quoting Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013)). “Under 28 U.S.C. § 2241, the habeas statute under which [the] petitioner[s] challenged [their] detention, [courts] retain jurisdiction so long as the petitioner[s are] ‘in custody.’” Pierrilus v. U.S. Immigration & Customs Enforcement, 293 F. App’x 78, 79 (2d Cir. 2008). Because Rahmee, Adelakun, Nwankwo, and Cedeno-Larios have been released from “ICE custody, the[ir] petition[s] ha[ve] been rendered moot divesting the Court of subject matter jurisdiction.” Diop v. Sessions, 2019 WL 1894387, at *2 (S.D.N.Y. Mar. 20, 2019). Accordingly, their motions for TROs are denied and their petitions are dismissed.
B. Petitioners Who Do Not Meet the CDC’s Criteria for “Vulnerable Individuals”
The Court is satisfied that there is no ongoing Due Process violation with respect to Jones petitioners Donga, Jules, Bhuyan, Narain, Salcedo, Thomas, and Wilson. Although these individuals may be at heightened risk of developing complications from COVID-19, they do not meet the CDC’s current criteria for vulnerable individuals. Because the violation at issue arises from the respondents’ failure to act on their “actual knowledge of serious risks to the health and well-being of individuals with the vulnerabilities identified by the CDC,” Jones, 20 WL 1643857 at *12, the respondents are not acting with deliberate indifference to the needs of Donga, Jules, Bhuyan, Narain, Salcedo, Thomas, and Wilson, none of whom meets these criteria. Accordingly, their motions for TROs are denied.
Additionally, Jones petitioner Cherry and Ramsundar petitioner Antonio Espinoza were found not to meet the CDC’s criteria for vulnerable individuals but nevertheless were placed in single-occupancy cells. Jones, Docket Item 48; Ramsundar, Docket
6

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 7 of 12
Item 6-2 at 8. The Court therefore need not decide whether Cherry and Antonio Espinoza in fact meet the CDC’s criteria. As discussed below, they have been provided all the relief the Court otherwise would order. Accordingly, their motions for TROs are denied to the extent they seek immediate release and denied as moot to the extent they seek an order requiring the petitioners to facilitate their taking alternative “social distancing” measures.
Donga, Jules, Bhuyan, Narain, Salcedo, Thomas, Wilson, Cherry, and Antonio Espinoza may move to re-open their petitioners if the CDC amends its guidance.
C. Petitioners Who Meet the CDC’s Criteria for “Vulnerable Individuals” 1. Vulnerable Petitioners Placed in Single-Occupancy Cells
The Court also is satisfied that the respondents’ actions with respect to Jones petitioners Blackman, Commissiong, Harsit, Lainez Mejia, Brathwaite, Espinal-Polanco, Forbes, Quintanilla-Mejia, and Sow, and Ramsundar petitioner Shane Samsundar, have remedied the previously-identified Due Process violation. More specifically, the following measures have adequately facilitated these petitioners’ taking the “social distancing” measures promulgated by the CDC and the New York State Department of Health: placement in single-occupancy cells;2 accommodation to eat meals in those
2 This Court previously recognized that “hous[ing] [vulnerable] individuals in individual cells or units with a limited number of individuals akin to a family unit outside the facility” might remedy the identified Due Process violation. See Jones, 2020 WL 1643857, at *14. The Court’s view has not changed, but the Court notes that if the respondents choose to place vulnerable petitioners in “units with a limited number of individuals akin to a family unit outside the facility,” those units would need to be selfcontained. The Due Process violation at issue here derives from the fact that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being....[because] it [has] render[ed] him unable to care for himself.” Helling v. McKinney, 509 U.S. 25, 32 (1993) (alterations in original)
7

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 8 of 12
cells and to bathe and shower in isolation; the provision, without charge, of sufficient shower disinfectant, masks, and ample soap; and the requirement that all BFDF staff and officers wear masks whenever interacting with these petitioners.
2. Vulnerable Petitioners Remaining in Communal, CongregateStyle Housing
In Jones, this Court found that “the respondents [were] acting with deliberate indifference to the health and safety of those petitioners with the conditions identified by the CDC by holding them in a congregate, communal-living setting where ‘social distancing is an oxymoron.’” 20 WL 1643857, at *12 (citing Docket Item 9-1 at 5 (Letter from Scott Allen, M.D., F.A.C.P., and Josiah D. Rich, M.D., M.P.H., to the House Committees on Homeland Security and Oversight and Reform, Mar. 19, 2020)) (additional citations omitted). The respondents nevertheless continue to hold Jones petitioners Concepcion and Falodun and Ramsundar petitioner Gomatee Ramsundar in dormitory settings, notwithstanding the finding of their medical expert that these petitioners meet the CDC’s criteria for “vulnerable” individuals.
This Court has provided the respondents with ample time to rectify the constitutional violations identified in its prior order. The respondents have failed to do so on their own. The Court therefore orders the respondents to either provide
(quoting DeShaney v. Winnebago Cty. Dept. of Soc. Svcs., 489 U.S. 189, 199-200 (1989)). If placed in multi-person cells, the vulnerable petitioners cannot control the actions of their cellmates. As such, the respondents may not so place the vulnerable petitioners unless they also can guarantee that the cellmates will not interact with more than two to three other people. Given the design of BFDF—72 to 92 individuals in a single unit—such a guarantee may not be possible.
8

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 9 of 12
Concepcion, Falodun, and Gomatee Ramsundar with their own individual cells by 5:00 p.m. today or release them in consultation with their counsel.3
The Court recognizes that release is an extraordinary remedy. Indeed, this Court is aware of few instances of a court’s ordering the release of an individual on the grounds that the government has failed to provide reasonably safe conditions of confinement. But these are extraordinary times. When the Jones petitioners filed this matter on March 25, 2020—only two weeks ago—there were 83,836 reported cases of COVID-19 in the United States and 2,467 reported COVID-19 deaths. See Coronavirus Resource Center, Johns Hopkins Univ. & Med. (Apr. 9, 2020, 10:49 AM), https://coronavirus.jhu.edu/map. As of today, there are 432,579 reported cases and 14,830 reported deaths. Id.
Against this backdrop, it is clear that the petitioner’s interests in liberty—indeed, in life—outweigh the government’s interests in “ensuring the appearance of [the petitioners] at future immigration proceedings” and “preventing danger to the community,” see Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (citations omitted). As this Court already has found, the petitioners’ interests are substantial given their particular vulnerabilities to COVID-19. See Jones, 20 WL 1643857 at *7-9. The government’s interests, by contrast, are relatively low. While all three petitioners have prior convictions, they have fully served their criminal sentences and are designated by
3 Because the Due Process violation at issue is not permanent, the remedy ordered today similarly is not permanent. Any release ordered today—like all other relief ordered today—applies for the fourteen days of this TRO. After that, the Court will consider the appropriate length of time to enjoin the respondents from re-detaining any released petitioners. But the petitioners are cautioned that any release will be coextensive with the guidance of executive branch officials.
9

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 10 of 12
the government as low-level detainees.4 See Jones, Docket Item 42-2 at 4-5, Docket
Item 47 at 5; Ramsundar, Docket Item 6-3 at 3, Docket Item 10 at 6. And any risk of
flight can be substantially mitigated by fashioning appropriate release conditions. See
Zadvydas, 533 U.S. at 696 (noting that the choice is not between detention and “living
at large” but between detention and “supervision under conditions”). This Court is not
alone in ordering the release of civil immigration detainees whom the government
cannot provide with conditions reasonably expected to protect their health and safety.
See, e.g., Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Basank v.
4 Petitioner Concepcion is held under 8 U.S.C. § 1226(c). See Jones, Docket Item 42-2 at 4. Section 1226(c) “states that the Attorney General ‘shall take into custody any alien’ who falls into one of the enumerated categories involving criminal offenses and terrorist activities.” Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018) (quoting 8 U.S.C. § 1226(c)(1)). But a number of courts have found that constitutional protections under the Due Process clause can outweigh this mandatory statutory language. See Basank, 2020 WL 1481503, at *6 (ordering the release of two section 1226(c) detainees vulnerable to COVID-19 because “courts have the authority to order those detained in violation of their due process rights released, notwithstanding [section] 1226(c)”) (citing Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018)); see also Linares Martinez v. Decker, 2018 WL 5023946, at *4 (S.D.N.Y. Oct. 17, 2018) (noting that a “slew of cases” apply Due Process protections to immigrants detained under section 1226(c)). This Court agrees.
The respondents also argue that petitioner Falodun is detained under 8 U.S.C. § 1231, which governs the detention of removable aliens, and therefore is subject to mandatory detention. See Jones, Docket Item 42-2 at 5. But Falodun has appealed DHS’s denial of his petition for review to, and also moved for a stay of removal in, the United States Court of Appeals for the Second Circuit. Under DHS’s forbearance agreement with the Second Circuit, “DHS will not remove an alien who has requested a stay of removal with a petition for review of an immigration order of removal unless a government motion opposing the stay is granted by the court or the alien’s stay motion is otherwise denied.” Sankara v. Whitaker, 2019 WL 266462, at *4 (W.D.N.Y. Jan. 18, 2019). This Court accordingly has held that until a Second Circuit panel rules on an alien’s request for a stay of his removal, the “forbearance agreement amounts to a court ordered stay of the removal of the alien.” See Hemans v. Searls, 2019 WL 955353, at *3 (W.D.N.Y. Feb. 27, 2019); Sankara, 2019 WL 266462, at *4. Falodun therefore is held under section 1226(c) and the same reasoning applies to him as discussed above.
10

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 11 of 12
Decker, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); see also Ass’n of Surrogates & Supreme Court Reporters Within City of New York v. State of N.Y., 966 F.2d 75, 79 (2d Cir. 1992), opinion modified on reh’g, 969 F.2d 1416 (2d Cir. 1992) (explaining that courts have “broad discretion in fashioning equitable remedies for . . . constitutional violations”).
ORDER
In light of the above, IT IS HEREBY ORDERED that the motions for TROs and petitions for habeas corpus of Jones petitioners Rahmee, Adelakun, and Nwankwo, and Ramsundar petititioner CedenoLarios are DISMISSED as moot; and it is further ORDERED that the motions for TROs of Jones petitioner Cherry and Ramsundar petitioner Antonio-Espinoza Ramsundar are DENIED to the extent they seek immediate release and DENIED as moot to the extent they seek an order requiring the petitioners to facilitate their taking alternative “social distancing” measures; and it is further ORDERED that the motions for TROs of Jones petitioners Donga, Jules, Bhuyan, Narain, Salcedo, Thomas, and Wilson are DENIED; and it is further ORDERED that the motions for TROs of Jones petitioners Blackman, Commissiong, Harsit, Lainez Mejia, Brathwaite, Espinal-Polanco, Forbes, QuintanillaMejia, and Sow and Ramsundar petitioner Shane Samsundar are GRANTED IN PART and DENIED IN PART; and it is further ORDERED that the respondents are retrained from ending any of the following “social distancing” and other protective measures with respect to Jones petitioners Blackman, Commissiong, Harsit, Lainez Mejia, Brathwaite, Espinal-Polanco, Forbes,
11

Case 1:20-cv-00361-LJV Document 71 Filed 04/09/20 Page 12 of 12

Quintanilla-Mejia, and Sow, and Ramsundar petitioner Shane Samsundar: placement in single-occupancy cells; accommodation to eat meals in those cells and to bathe and shower in isolation; the provision, without charge, of sufficient shower disinfectant, masks, and ample soap; and the requirement that all BFDF staff and officers wear masks whenever interacting with these petitioners; and it is further
ORDERED that the motions for TROs of Jones petitioners Concepcion and Falodun and Ramsundar petitioner Gomatee Ramsundar are CONDITIONALLY GRANTED; the respondents shall provide these individuals with single-occupancy cells and take the other protective measures for vulnerable individuals noted above before 5:00 p.m. on April 9, 2020, or release these individuals after consultation with their counsel; and it is further
ORDERED that the respondents and the petitioners shall show cause on or before April 24, 2020, why this temporary restraining order should not be converted into a preliminary injunction.

SO ORDERED.

Dated:

April 9, 2020 Buffalo, New York

/s/ Lawrence J. Vilardo LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE

12

 
 Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 1 of 11

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

SHANE RAMSUNDAR, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-402 ORDER

VERNON JONES, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-361 ORDER

Before this Court are the petitioners’ motions to convert certain temporary restraining orders (TRO) into preliminary injunctions (PI). Jones v. Wolf, No. 20-CV361, Docket Item 88; Ramsundar v. Wolf, No. 20-CV-402, Docket Item 26. For the reasons that follow, those motions are granted.

Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 2 of 11
BACKGROUND
The petitioners in these two actions are 23 civil immigration detainees1 held in the custody of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) at the Buffalo Federal Detention Facility in Batavia, New York (“BFDF”). They have filed “Emergency Petition[s] for Writ[s] of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint[s] for Injunctive Relief.” Jones, Docket Item 1; Ramsundar, Docket Item 1. They also filed motions for TROs. See Jones, Docket Item 8; Ramsundar, Docket Item 2. In both cases, the petitioners alleged that their continued civil detention in the wake of the COVID-19 pandemic violated their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, and they sought their immediate release from ICE custody. Jones, Docket Item 1 at 23-24; Ramsundar, Docket Item 1 at 20. According to the petitions, each petitioner was “either over the age of fifty and/or [had] a serious underlying medical condition, making [him or her] more vulnerable to complications arising from COVID-19.” Jones, Docket Item 1 at 43; Ramsundar, Docket Item 1 at 4.
On April 2, 2020, this Court found that holding vulnerable individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), in the then-current conditions at BFDF during the COVID-19 epidemic violated their substantive Due Process rights to reasonably safe conditions of confinement. Jones v. Wolf, No. 20-CV361, 2020 WL 1643857, at *14-27 (W.D.N.Y. Apr. 2, 2020). The Court ordered the
1 The Court previously dismissed as moot the petitions of Jones petitioners Rahmee, Adelakun, and Nwankwo, and Ramsundar petitioner Cedeno-Larios, because ICE had released them. See Jones, Docket Item 71 at 5-6; Ramsundar, Docket Item 12 at 5-6.
2

Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 3 of 11
respondents to provide petitioners who met the CDC’s vulnerability criteria with a living situation that facilitates “social distancing.” Id. at *31-32; see also Ramsundar, Docket Item 4 at 2. If the respondents did so, the violation would be rectified and judiciallyordered release would not be necessary. Jones, 2020 WL 1643857, at *14-15.
The respondents’ medical expert, Captain Abelardo Montalvo, M.D., has identified eleven of the twenty Jones petitioners (Adelakun, Blackman, Brathwaite, Commissiong, Concepcion, Espinal-Polanco, Falodun, Forbes, Harsit, Lainez Mejia, Nwankwo, Quintanilla-Mejia, and Sow) and two of the three Ramsundar petitioners (Gomatee Ramdundar and Shane Ramsundar) as meeting the CDC criteria. See Jones, Docket Item 45 at 4-5; Ramsundar, Docket Item 6-2 at 8. But he found that Jones petitioners Donga, Jules, Bhuyan, Cherry, Narain, Salcedo, Thomas, and Wilson, as well as Ramsundar petitioner Antonio Espinoza, do not meet these criteria. See Jones, Docket Item 45 at 5-6; Ramsundar, Docket Item 6-2 at 8.
As of April 9, 2020, nine of the thirteen vulnerable Jones petitioners (Blackman, Commissiong, Harsit, Lainez Mejia, Brathwaite, Espinal-Polanco, Forbes, QuintanillaMejia, and Sow) had been provided with their own cells; but two (Concepcion and Falodun) remained in a communal-living situation under quarantine. Jones, Docket Item 47 at 2-3, Docket Item 59 at 3. One of the two vulnerable Ramsundar petitioners (Shane Ramsundar) had been provided his own cell; but one (Gomatee Ramsundar) remained in a communal-living situation because BFDF had no individual cells for female detainees. Ramsundar, Docket Item 6-3 at 23-4, Docket Item 10 at 5-7.
On April 9, 2020, this Court ruled on the petitioners’ motions for TROs. Because petitioners Donga, Jules, Bhuyan, Cherry, Narain, Salcedo, Thomas, and Wilson, as
3

Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 4 of 11
well as Ramsundar petitioner Antonio Espinoza, did not meet the CDC criteria for COVID-19 vulnerability, the Court found that the respondents were not acting with deliberate indifference to their medical needs and consequently denied their motions. See Jones, Docket Item 71 at 6; Ramsundar, Docket Item 12 at 6. It did not reach the issue of deliberate indifference with respect to Jones petitioner Cherry and Ramsundar petitioner Antonio Espinoza, as the respondents had provided both individuals with individual cells, but the Court otherwise denied their motions for release. See Jones, Docket Item 71 at 6-7; Ramsundar, Docket Item 12 at 6-7.
The Court also found that because Jones petitioners Brathwaite, Blackman, Commissiong, Concepcion, Espinal-Polanco, Falodun, Forbes, Harsit, Lainez Mejia, Quintanilla-Mejia, and Sow, as well as Ramsundar petitioners Gomatee Ramsundar and Shane Ramsundar, met the CDC vulnerability criteria, it would constitute a denial of Due Process for the respondents not to facilitate certain “social distancing” measures for these petitioners. See Docket Item 71 at 7-8; Ramsundar, Docket Item 12 at 7-8. By providing Jones petitioners Brathwaite, Blackman, Commissiong, Espinal-Polanco, Forbes, Harsit, Lainez Mejia, Quintanilla-Mejia, and Sow, as well as Ramsundar petitioner Shane Ramsundar, with their own cells, among other accommodations, however, the respondents sufficiently facilitated social distancing, and so the release of those petitioners was not warranted. Id. The Court therefore granted those petitioners’ motions in part and temporarily enjoined the respondents from denying them specified
4

Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 5 of 11
“social distancing” and protective measures. See Docket Item 71 at 11-12; Ramsundar, Docket Item 12 at 11-12.
But the respondents’ actions with respect to Jones petitioners Concepcion and Falodun and Ramsundar petitioner Gomatee Ramsundar—all of whom remained in communal-living situations—were insufficient. Jones, Docket Item 71 at 8-11; Ramsundar, Docket Item 12 at 8-11. The Court therefore ordered the respondents “to either provide Concepcion, Falodun, and Gomatee Ramsundar with their own individual cells by 5:00 p.m. [on April 9, 2020,] or release them in consultation with their counsel.” Jones, Docket Item 71 at 12; Ramsundar, Docket Item 12 at 12. The Court noted the extraordinary nature of this remedy but found it necessary in light of the rapidly devolving public health crisis. It cautioned, however, that “[b]ecause the Due Process violation at issue [was] not permanent, the remedy ordered . . . similarly [would not be] permanent.” Jones, Docket Item 71 at 9 n.3; Ramsundar, Docket Item 12 at 9 n.3. “Any release ordered . . . [would] appl[y] for the fourteen days of this TRO. After that, the Court [would] consider the appropriate length of time to enjoin the respondents from re-detaining any released petitioners.” Id. The Court concluded by ordering the parties to show cause on or before April 24, 2020, why the TRO should not be converted into a preliminary injunction (“PI”). Jones, Docket Item 71 at 12; Ramsundar, Docket Item 12 at 12.
On April 24, 2020, both sides responded to the show cause order. The petitioners argued that the TRO should be converted into a PI with certain modifications. See Jones, Docket Item 88; Ramsundar, Docket Item 26. They submitted affidavits and declarations about current conditions at BFDF. See Jones, Docket Items 75-82, 85, 88-
5

Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 6 of 11
1; Ramsundar, Docket Items 23 and 24. The respondents opposed conversion of the TRO into a PI and argued that the TRO instead either should be lifted entirely or merely extended 60 rays. See Jones, Docket Item 84; Ramsundar, Docket Item 22. The parties also reported that the respondents have released Gomatee Ramsundar, see Ramsundar, Docket Item 26, but placed Concepcion and Faladun in individual cells within BFDF’s Special Housing Unit (“SHU”), see Jones, Docket Item 88 at 18.
In light of the government’s opposition, this Court extended the TRO for an additional seven days, until May 1, 2020, and took the parties’ submissions under advisement. See Jones, Docket Item 86; Ramsundar, Docket Item 25.
DISCUSSION
Having considered the parties’ arguments, this Court converts the TRO into a PI. See also Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (“[T]he standard for an entry of a TRO is the same as for a preliminary injunction.”). With respect to the non-vulnerable petitioners, the CDC’s guidance has not been amended to include any of their medical conditions or to lower the age below 65. See People who are at higher risk for severe illness, Ctrs. for Disease Control and Prevention (Apr. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html?CDC_AA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-ncov% 2Fspecific-groups% 2Fhigh-risk-complications.html. And with respect to the vulnerable petitioners, if anything, the measures previously ordered have become even more critical. As of April 20, 2020, 46 of the 319 detainees confined at BFDF had tested positive for COVID-19. See Jones, Docket Item 74 at 2; Ramsundar, Docket
6

Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 7 of 11
Item 21 at 2. Most cases were found among detainees housed in one of the communalliving situations this Court found inadequate to protect the vulnerable petitioners. Id.
So the question now is the appropriate length of time to enjoin the respondents’ actions. This Court’s order in Jones identified the Due Process violation as deriving from the fact that the social distancing “measure[s] that the government has forcibly— under threat of civil penalties—imposed on all persons within its jurisdiction cannot, at the same time, be forcibly denied to some portion of that population.” 2020 WL 1643857, at *12. This Court focused in particular on the fact that the Governor of New York, Andrew Cuomo, had “taken a number of unprecedented steps,” including “closing . . . all schools and universities, as well as nearly all businesses and places of public accommodation, and . . . prohibit[ing] non-essential gatherings of any size through at least April 15, 2020.” Id. at *11 (alteration in original) (citation and footnote omitted).
The petitioners urge this Court to not use “us[e] any benchmark to lift the preliminary injunction that would be based on the actions of a political official,” in light of “the number of U.S. states rescinding or modifying emergency orders due to economic priorities rather than adherence to the advice of public health experts.” See Jones, Docket Item 88 at 29. They ask this Court, instead, to maintain the PI until 21 days after both of the following milestones have been achieved: (1) the Secretary of Health and Human Services2 “lifts [his] declaration that COVID-19 is a public health emergency” and (2) “all detainees at BFDF who have been infected are cleared as recovered by a doctor.” Id. at 30. Alternatively, they suggest, the PI could be lifted when all detainees
2 The petitioners refer to the CDC but, in fact, the Secretary of Health and Human Services is vested with the statutory authority to declare a public health emergency. See 42 U.S.C. § 246d(a).
7

Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 8 of 11
have received a COVID-19 vaccination approved by the Food and Drug Administration. Id.
Because the Due Process violation at issue stems from the government’s failure to afford protections commensurate to those otherwise mandated by executive officials, the remedy similarly must rest on that basis. Since this Court ordered the TRO, Governor Cuomo has extended the emergency declaration and closure orders through May 16, 2020. See N.Y. Exec. Order No. 202.18 (Apr. 16, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.18.pdf. The Governor has not committed to any specific action after that date, but he has indicated that efforts to reopen daily life will be slow and progressive. See, e.g., Rich McKay & Brendan O’Brien, More U.S. states make plans to reopen; California holds firm, Reuters (Apr. 22, 2020), https://www.reuters.com/article/us-health-coronavirususa/trump-says-states-reopening-safely-but-new-yorks-cuomo-warns-against-actingstupidly-idUSKCN2241XD. The United States Department of Health and Human Services’ public health emergency declaration also remains in place. See Alex M. Azar II, Secretary of Health and Human Svcs., Renewal of Determination That a Public Health Emergency Exists, U.S. Dept. of Health & Human Svcs. (Apr. 21, 2020), https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid1921apr2020.aspx.
The terms of the PI therefore shall extend, at a minimum, through May 16, 2020. But the Court need not definitively resolve the appropriate parameters or time frame for lifting the preliminary injunction at this point. A preliminary injunction is just that—an initial measure taken before entry of a final order. That legal framework applies
8

Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 9 of 11
regardless of whether the injury results from a persistent or temporary condition. Accordingly, this Court will convert the TRO into a PI but also orders the parties to propose, for each petitioner, the appropriate scope of the final habeas relief in this matter under Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008)—including the appropriate length and terms of, and criteria for lifting, a final injunction. If in the meantime the guidance of federal and state officials or the conditions at BFDF change materially, either party may move this Court after May 16, 2020, to alter or lift the preliminary injunction.
ORDER
In light of the above, IT IS HEREBY ORDERED that the motions for PIs of Jones petitioners Donga, Jules, Bhuyan, Narain, Salcedo, Thomas, and Wilson are DENIED; and it is further ORDERED that the motions for PIs of Jones petitioner Cherry and Ramsundar petitioner Antonio-Espinoza Ramsundar are DENIED to the extent they seek immediate release and DENIED as moot to the extent they seek an order requiring the petitioners to facilitate their taking alternative “social distancing” measures; and it is further ORDERED that the motions for PIs of Jones petitioners Blackman, Brathwaite, Commissiong, Concepcion, Espinal-Polanco, Falodun, Forbes, Harsit, Lainez Mejia, Quintanilla-Mejia, and Sow and Ramsundar petitioner Shane Ramsundar are GRANTED IN PART and DENIED IN PART; and it is further ORDERED that the respondents are preliminarily enjoined from denying any of the following “social distancing” and other protective measures to Jones petitioners Blackman, Brathwaite, Commissiong, Espinal-Polanco, Forbes, Harsit, Lainez Mejia,
9

Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 10 of 11
Quintanilla-Mejia, and Sow, and Ramsundar petitioner Shane Ramsundar: placement in single-occupancy cells; accommodation to eat meals in those cells and to bathe and shower in isolation; the provision, without charge, of sufficient shower disinfectant, masks, and ample soap; and the requirement that all BFDF staff and officers wear masks whenever interacting with these petitioners; and it is further
ORDERED that the motion for a PI of Ramsundar petitioner Gomatee Ramsundar is CONDITIONALLY GRANTED; the respondents are preliminarily enjoined from detaining this petitioner for civil immigration purposes unless the respondents can provide her with the “social distancing” measures detailed above; and it is further
ORDERED that at any time after May 16, 2020, either party may move to lift the preliminary injunction based on new developments and evidence; and it is further
ORDERED that the respondents shall provide this Court with a status update within 48 hours, and every 7 days thereafter, that details: (1) the conditions of confinement for each vulnerable petitioner (cell occupancy, meal and bathing accommodations, soap and mask provision, and officer and staff mask use); (2) the total number of infected and hospitalized BFDF detainees, including any who subsequently were transferred out of BFDF; (3) the total number of infected BFDF ICE officers and non-government staff members; and (4) for each unit, the total number of infected detainees, officers, and staff (disaggregated) who have lived or worked in that unit in the past 14 days; and it is further
10

Case 1:20-cv-00361-LJV Document 89 Filed 04/27/20 Page 11 of 11

ORDERED that within 30 days of the date of this order, the petitioners shall file and serve a memorandum of law addressing, for each petitioner, the appropriate scope of the final habeas relief in this matter; the respondents shall have 7 days to respond; and the petitioners shall have 3 days to reply; the Court will schedule oral argument at a later time if necessary.

SO ORDERED.

Dated:

April 27, 2020 Buffalo, New York

/s/ Hon. Lawrence J. Vilardo LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE

11

 
 Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 1 of 9

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

SHANE RAMSUNDAR, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-402 ORDER

VERNON JONES, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-361 ORDER

The petitioners in these two actions are 22 civil immigration detainees1 held in the custody of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) at the Buffalo Federal Detention Facility in Batavia, New York (“BFDF”). They have filed “Emergency Petition[s] for Writ[s] of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint[s] for Injunctive Relief.” Jones v. Wolf, No. 20-CV-361, Docket Item 1; Ramsundar v. Wolf, No. 20-CV-402, Docket Item 1. In both

1 The Court previously dismissed as moot the petitions of Jones petitioners Adelakun, Commissiong, Lainez Mejia, Nwankwo, and Rahmee, and Ramsundar petitioner Cedeno-Larios, because ICE had released them. See Jones, Docket Items 92, 107; Ramsundar, Docket Item 29.

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 2 of 9
cases, the petitioners alleged that their continued civil detention in the wake of the COVID-19 pandemic violated their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, and they sought their immediate release from ICE custody. Jones, Docket Item 1 at 23-24; Ramsundar, Docket Item 1 at 20. According to the petitions, each petitioner was “either over the age of fifty and/or [had] a serious underlying medical condition, making [him or her] more vulnerable to complications arising from COVID-19.” Jones, Docket Item 1 at 43; Ramsundar, Docket Item 1 at 4.
On April 2, 2020, this Court found that holding vulnerable individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), in the then-current conditions at BFDF during the COVID-19 pandemic violated their substantive Due Process right to reasonably safe conditions of confinement. Jones v. Wolf, No. 20-CV361, 2020 WL 1643857, at *14-27 (W.D.N.Y. Apr. 2, 2020). The Court ordered the respondents to provide petitioners who met the CDC’s vulnerability criteria with a living situation that facilitates “social distancing.” Id. at *31-32; see also Ramsundar, Docket Item 4 at 2. If the respondents did so, the violation would be rectified and judiciallyordered release would not be necessary. Jones, 2020 WL 1643857, at *14-15.
On April 9, 2020, this Court found that the respondents’ proposed measures to facilitate “social distancing” would be sufficient to remedy the previously-identified Due Process violation. Accordingly, it granted the petitioners’ motions for temporary restraining orders only in part. Jones, Docket Item 71; Ramsundar, Docket Item 12. And on April 27, 2020, this Court converted the temporary restraining order into a preliminary injunction. Jones, Docket Item 89; Ramsundar, Docket Item 27. The Court’s
2

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 3 of 9
orders enjoined the respondents “from denying any of the following ’social distancing’ and other protective measures” to the petitioners “who met the CDC’s criteria for vulnerability to COVID-19”: “placement in single-occupancy cells; accommodation to eat meals in those cells and to bathe and shower in isolation; the provision, without charge, of sufficient shower disinfectant, masks, and ample soap; and the requirement that all BFDF staff and officers wear masks whenever interacting with these petitioners.” Jones, Docket Item 89 at 9-10; Ramsundar, Docket Item 27 at 9-10.
On April 29, 2020, the respondents provided this Court with a status update in which they asserted their compliance with the terms of the preliminary injunction. See Jones, Docket Item 91; Ramsundar, Docket Item 28. But the Court also received over twenty affidavits and declarations from the petitioners and witnesses on their behalf disputing this assertion. See Jones, Docket Items 60-68, 75-82, 85, 87, 90; Ramsundar, Docket Items 11, 23-24. The Court therefore held an evidentiary hearing via videoconference on May 13, 2020, to address the respondents' alleged noncompliance. Jeffrey Searls, Officer in Charge of BFDF, testified on behalf of the respondents. Jones petitioner Brathwaite, Ramsundar petitioners Antonio Espinoza and Shane Ramsundar, and non-party detainee Christian Diaz Arvelo testified on behalf of the petitioners. This Court reserved decision, and each side submitted post-hearing briefing. See Jones, Docket Items 105-06; Ramsundar, Docket Items 42, 43.
DISCUSSION
A. Isolated Bathing The petitioners first allege that the respondents are not complying with this Court’s order that the vulnerable petitioners be “accommodat[ed] to . . . bathe and
3

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 4 of 9
shower in isolation.” See Jones, Docket Item 106 at 5-6; Ramsundar, Docket Item 43 at 5-6 (citing Jones, Docket Item 89 at 9-10; Ramsundar, Docket Item 27 at 9-10). The petitioners point specifically to evidence that the bathing schedule proposed by the respondents no longer was displayed within the petitioners’ housing unit. Id. at 5 (citing Jones, Docket Item 91 at 3). But the respondents’ abandonment of a policy it proposed independently does not, in and of itself, demonstrate noncompliance. Nor did any of the petitioners’ witnesses testify that they were unable to bathe in isolation. Accordingly, the Court finds that the respondents are not disregarding this portion of the preliminary injunction, and no remedial measures are warranted.
B. Soap Provision The petitioners next allege that the respondents are not complying with this Court’s order that the respondents “provi[de], without charge, . . . ample soap.” See Jones, Docket Item 106 at 7-8; Ramsundar, Docket Item 43 at 7-8 (citing Jones, Docket Item 89 at 9-10; Ramsundar, Docket Item 27 at 9-10). The petitioners specifically allege that the “one or two bars of hotel-sized soap [given to detainees] each Monday” is insufficient to last the entire week. See id. But the question is not whether those two bars suffice. The question is whether the petitioners are denied additional soap if they use up those two bars. And on that question, the witnesses testified that they neither were denied additional bars of soap, nor were they ever without soap given the constant supply of liquid soap in the housing unit common area. Again, the Court finds that the respondents are not disregarding this portion of the preliminary injunction, and no remedial measures are warranted.
4

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 5 of 9
C. Social Distancing Finally, the petitioners allege that the respondents are not, as a general matter, facilitating the vulnerable petitioners’ ability to socially distance. See Jones, Docket Item 106 at 9-12; Ramsundar, Docket Item 43 at 9-12. More specifically, the petitioners claim that “social distancing inside [their] housing units is an illusion” because “only about four or five detainees wear masks, meals are still served communally, and no one stays apart from one another during the times they are out of their cells.” Id. at 9. Once again, this Court does not find that the respondents are defying any aspect of the preliminary injunction. To the contrary, the witnesses testified that staff wear masks at all times, that the vulnerable petitioners may eat meals in their cells if they so choose, and that they are able to maintain six feet of distance between and among themselves and others (albeit not without making some personal sacrifices). But the Court also finds that based on recently-revised guidance from federal and state executive officials, three amendments to the preliminary injunction are warranted. This Court’s order in Jones identified the Due Process violation as deriving from the fact that the social distancing “measure[s] that the government has forcibly—under threat of civil penalties—imposed on all persons within its jurisdiction cannot, at the same time, be forcibly denied to some portion of that population.” 2020 WL 1643857, at *12. The Governor of New York, Andrew Cuomo, has updated prior directions to order: “[A]ny individual who is over age two and able to medically tolerate a face-covering shall be required to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance.” N.Y. Exec. Order No. 202.17 (Apr. 15, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.17.pdf.
5

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 6 of 9
The CDC has recommended the same. See Recommendations for Cloth Face Covers, Ctrs. For Disease Control and Prevention (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html (“[COVID-19] can spread between people interacting in close proximity—for example, speaking, coughing, or sneezing—even if those people are not exhibiting symptoms. In light of this new evidence, CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission.” (emphasis in original)).
During the hearing, respondent Searls testified that masks are available for all detainees but that they are required to wear them only when outside their housing units. He further testified that the detainees have been advised, via English and Spanishlanguage signs, about the CDC’s “social-distancing” guidance, including its recommendations that all persons wear masks when not able to maintain a distance of six feet from others. The signs were removed at some point—possibly by BFDF employees, possibly by detainees—but were reposted the day of the hearing. See Jones, Docket Item 106 at 10; Ramsundar, Docket Item 43 at 10.
This Court is concerned that the vulnerable petitioners remain at risk not due to actions taken independently on the part of the other detainees—which likely is beyond this Court’s control—but instead due to the respondents’ not providing critical public health guidance in a format accessible to all detainees. As the CDC has noted, the use of masks and maintaining six feet of distance is intended to protect others, as COVID19 is believed to spread through respiratory droplets. The respondents therefore must
6

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 7 of 9
take steps if not to require, then to facilitate and encourage, all detainees to use masks whenever they are within six feet of others, particularly the vulnerable petitioners. The respondents have taken an important step toward facilitating this measure by providing all detainees with masks—even though this Court did not order that step—but at the very least more must be done to ensure that all detainees understand why they should use those masks.
Accordingly, within one week of the date of this order, the respondents are ordered to post signs throughout the facility in English, Spanish, and any other language necessary to communicate the information to substantially all detainees at BFDF, advising detainees about the importance of, and providing guidance with respect to, wearing masks and maintaining six feet of distance to protect others from asymptomatic transmission. See, e.g., What you should know about COVID-19 to protect yourself and others, Ctrs. for Disease Control and Prevention (Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf; How to Protect Yourself and Others, Ctrs. for Disease Control and Prevention (May 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention-H.pdf. The respondents also shall post or otherwise provide detainees with written copies of all prior and future executive orders issued by Governor Cuomo concerning COVID-19 (202–202.31) in all languages available on the New York State website (Bengali, Mandarin, Haitian-Creole, Korean, Russian, and Spanish). See Executive Orders, Office of the Governor (last visited May 18, 2020),
7

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 8 of 9
https://www.governor.ny.gov/executiveorders. The respondents shall include updates on these information dissemination efforts in their weekly status reports.
Finally, the respondents shall conduct biweekly COVID-19 testing of all consenting detainees housed in the vulnerable detainees’ units. As noted above, this Court likely cannot compel all detainees to wear masks at all times, a reality which heightens the vulnerable detainees’ risk of infection given that other detainees move in and out of the housing units for court appearances and other matters. The respondents shall include the test results in their weekly status reports. If testing availability or some other factor makes this impossible or impractical, the respondents may petition the Court for relief from this requirement.
ORDER
In light of the above, IT IS HEREBY ORDERED that the preliminary injunction entered April 27, 2020, Jones, Docket Item 89; Ramsundar, Docket Item 27, is amended to require the respondents, within one week of the date of this order, to post signs throughout BFDF in English, Spanish, and any other language necessary to communicate the information to substantially all detainees at BFDF, advising detainees about the importance of, and providing guidance with respect to, wearing masks and maintaining six feet of distance to protect others from asymptomatic transmission; and it is further ORDERED that the preliminary injunction entered April 27, 2020, Jones, Docket Item 89; Ramsundar, Docket Item 27, is amended to require the respondents, within one week of the date of this order, to post or otherwise provide detainees with written copies of all prior and future executive orders issued by Governor Cuomo concerning
8

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 9 of 9

COVID-19 (202–202.31) in all languages available on the New York State website (Bengali, Mandarin, Haitian-Creole, Korean, Russian, and Spanish); and it is further
ORDERED that the preliminary injunction entered April 27, 2020, Jones, Docket Item 89; Ramsundar, Docket Item 27, is amended to require the respondents to conduct biweekly COVID-19 testing of all consenting detainees housed in the vulnerable detainees’ units; and it is further
ORDERED that the preliminary injunction entered April 27, 2020, Jones, Docket Item 89; Ramsundar, Docket Item 27, is amended to require that information on the following be included in the respondents’ weekly status updates: (1) posting of language-accessible signage; (2) posting or provision of language-accessible copies of executive orders; and (3) for each unit, the total number of positive and negative COVID-19 tests.

SO ORDERED.

Dated:

May 20, 2020 Buffalo, New York

/s/ Hon. Lawrence J. Vilardo LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE

9

 
 Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 1 of 9

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

SHANE RAMSUNDAR, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-402 ORDER

VERNON JONES, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-361 ORDER

The petitioners in these two actions are 22 civil immigration detainees1 held in the custody of the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) at the Buffalo Federal Detention Facility in Batavia, New York (“BFDF”). They have filed “Emergency Petition[s] for Writ[s] of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint[s] for Injunctive Relief.” Jones v. Wolf, No. 20-CV-361, Docket Item 1; Ramsundar v. Wolf, No. 20-CV-402, Docket Item 1. In both

1 The Court previously dismissed as moot the petitions of Jones petitioners Adelakun, Commissiong, Lainez Mejia, Nwankwo, and Rahmee, and Ramsundar petitioner Cedeno-Larios, because ICE had released them. See Jones, Docket Items 92, 107; Ramsundar, Docket Item 29.

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 2 of 9
cases, the petitioners alleged that their continued civil detention in the wake of the COVID-19 pandemic violated their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, and they sought their immediate release from ICE custody. Jones, Docket Item 1 at 23-24; Ramsundar, Docket Item 1 at 20. According to the petitions, each petitioner was “either over the age of fifty and/or [had] a serious underlying medical condition, making [him or her] more vulnerable to complications arising from COVID-19.” Jones, Docket Item 1 at 43; Ramsundar, Docket Item 1 at 4.
On April 2, 2020, this Court found that holding vulnerable individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), in the then-current conditions at BFDF during the COVID-19 pandemic violated their substantive Due Process right to reasonably safe conditions of confinement. Jones v. Wolf, No. 20-CV361, 2020 WL 1643857, at *14-27 (W.D.N.Y. Apr. 2, 2020). The Court ordered the respondents to provide petitioners who met the CDC’s vulnerability criteria with a living situation that facilitates “social distancing.” Id. at *31-32; see also Ramsundar, Docket Item 4 at 2. If the respondents did so, the violation would be rectified and judiciallyordered release would not be necessary. Jones, 2020 WL 1643857, at *14-15.
On April 9, 2020, this Court found that the respondents’ proposed measures to facilitate “social distancing” would be sufficient to remedy the previously-identified Due Process violation. Accordingly, it granted the petitioners’ motions for temporary restraining orders only in part. Jones, Docket Item 71; Ramsundar, Docket Item 12. And on April 27, 2020, this Court converted the temporary restraining order into a preliminary injunction. Jones, Docket Item 89; Ramsundar, Docket Item 27. The Court’s
2

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 3 of 9
orders enjoined the respondents “from denying any of the following ’social distancing’ and other protective measures” to the petitioners “who met the CDC’s criteria for vulnerability to COVID-19”: “placement in single-occupancy cells; accommodation to eat meals in those cells and to bathe and shower in isolation; the provision, without charge, of sufficient shower disinfectant, masks, and ample soap; and the requirement that all BFDF staff and officers wear masks whenever interacting with these petitioners.” Jones, Docket Item 89 at 9-10; Ramsundar, Docket Item 27 at 9-10.
On April 29, 2020, the respondents provided this Court with a status update in which they asserted their compliance with the terms of the preliminary injunction. See Jones, Docket Item 91; Ramsundar, Docket Item 28. But the Court also received over twenty affidavits and declarations from the petitioners and witnesses on their behalf disputing this assertion. See Jones, Docket Items 60-68, 75-82, 85, 87, 90; Ramsundar, Docket Items 11, 23-24. The Court therefore held an evidentiary hearing via videoconference on May 13, 2020, to address the respondents' alleged noncompliance. Jeffrey Searls, Officer in Charge of BFDF, testified on behalf of the respondents. Jones petitioner Brathwaite, Ramsundar petitioners Antonio Espinoza and Shane Ramsundar, and non-party detainee Christian Diaz Arvelo testified on behalf of the petitioners. This Court reserved decision, and each side submitted post-hearing briefing. See Jones, Docket Items 105-06; Ramsundar, Docket Items 42, 43.
DISCUSSION
A. Isolated Bathing The petitioners first allege that the respondents are not complying with this Court’s order that the vulnerable petitioners be “accommodat[ed] to . . . bathe and
3

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 4 of 9
shower in isolation.” See Jones, Docket Item 106 at 5-6; Ramsundar, Docket Item 43 at 5-6 (citing Jones, Docket Item 89 at 9-10; Ramsundar, Docket Item 27 at 9-10). The petitioners point specifically to evidence that the bathing schedule proposed by the respondents no longer was displayed within the petitioners’ housing unit. Id. at 5 (citing Jones, Docket Item 91 at 3). But the respondents’ abandonment of a policy it proposed independently does not, in and of itself, demonstrate noncompliance. Nor did any of the petitioners’ witnesses testify that they were unable to bathe in isolation. Accordingly, the Court finds that the respondents are not disregarding this portion of the preliminary injunction, and no remedial measures are warranted.
B. Soap Provision The petitioners next allege that the respondents are not complying with this Court’s order that the respondents “provi[de], without charge, . . . ample soap.” See Jones, Docket Item 106 at 7-8; Ramsundar, Docket Item 43 at 7-8 (citing Jones, Docket Item 89 at 9-10; Ramsundar, Docket Item 27 at 9-10). The petitioners specifically allege that the “one or two bars of hotel-sized soap [given to detainees] each Monday” is insufficient to last the entire week. See id. But the question is not whether those two bars suffice. The question is whether the petitioners are denied additional soap if they use up those two bars. And on that question, the witnesses testified that they neither were denied additional bars of soap, nor were they ever without soap given the constant supply of liquid soap in the housing unit common area. Again, the Court finds that the respondents are not disregarding this portion of the preliminary injunction, and no remedial measures are warranted.
4

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 5 of 9
C. Social Distancing Finally, the petitioners allege that the respondents are not, as a general matter, facilitating the vulnerable petitioners’ ability to socially distance. See Jones, Docket Item 106 at 9-12; Ramsundar, Docket Item 43 at 9-12. More specifically, the petitioners claim that “social distancing inside [their] housing units is an illusion” because “only about four or five detainees wear masks, meals are still served communally, and no one stays apart from one another during the times they are out of their cells.” Id. at 9. Once again, this Court does not find that the respondents are defying any aspect of the preliminary injunction. To the contrary, the witnesses testified that staff wear masks at all times, that the vulnerable petitioners may eat meals in their cells if they so choose, and that they are able to maintain six feet of distance between and among themselves and others (albeit not without making some personal sacrifices). But the Court also finds that based on recently-revised guidance from federal and state executive officials, three amendments to the preliminary injunction are warranted. This Court’s order in Jones identified the Due Process violation as deriving from the fact that the social distancing “measure[s] that the government has forcibly—under threat of civil penalties—imposed on all persons within its jurisdiction cannot, at the same time, be forcibly denied to some portion of that population.” 2020 WL 1643857, at *12. The Governor of New York, Andrew Cuomo, has updated prior directions to order: “[A]ny individual who is over age two and able to medically tolerate a face-covering shall be required to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance.” N.Y. Exec. Order No. 202.17 (Apr. 15, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.17.pdf.
5

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 6 of 9
The CDC has recommended the same. See Recommendations for Cloth Face Covers, Ctrs. For Disease Control and Prevention (Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html (“[COVID-19] can spread between people interacting in close proximity—for example, speaking, coughing, or sneezing—even if those people are not exhibiting symptoms. In light of this new evidence, CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission.” (emphasis in original)).
During the hearing, respondent Searls testified that masks are available for all detainees but that they are required to wear them only when outside their housing units. He further testified that the detainees have been advised, via English and Spanishlanguage signs, about the CDC’s “social-distancing” guidance, including its recommendations that all persons wear masks when not able to maintain a distance of six feet from others. The signs were removed at some point—possibly by BFDF employees, possibly by detainees—but were reposted the day of the hearing. See Jones, Docket Item 106 at 10; Ramsundar, Docket Item 43 at 10.
This Court is concerned that the vulnerable petitioners remain at risk not due to actions taken independently on the part of the other detainees—which likely is beyond this Court’s control—but instead due to the respondents’ not providing critical public health guidance in a format accessible to all detainees. As the CDC has noted, the use of masks and maintaining six feet of distance is intended to protect others, as COVID19 is believed to spread through respiratory droplets. The respondents therefore must
6

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 7 of 9
take steps if not to require, then to facilitate and encourage, all detainees to use masks whenever they are within six feet of others, particularly the vulnerable petitioners. The respondents have taken an important step toward facilitating this measure by providing all detainees with masks—even though this Court did not order that step—but at the very least more must be done to ensure that all detainees understand why they should use those masks.
Accordingly, within one week of the date of this order, the respondents are ordered to post signs throughout the facility in English, Spanish, and any other language necessary to communicate the information to substantially all detainees at BFDF, advising detainees about the importance of, and providing guidance with respect to, wearing masks and maintaining six feet of distance to protect others from asymptomatic transmission. See, e.g., What you should know about COVID-19 to protect yourself and others, Ctrs. for Disease Control and Prevention (Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf; How to Protect Yourself and Others, Ctrs. for Disease Control and Prevention (May 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention-H.pdf. The respondents also shall post or otherwise provide detainees with written copies of all prior and future executive orders issued by Governor Cuomo concerning COVID-19 (202–202.31) in all languages available on the New York State website (Bengali, Mandarin, Haitian-Creole, Korean, Russian, and Spanish). See Executive Orders, Office of the Governor (last visited May 18, 2020),
7

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 8 of 9
https://www.governor.ny.gov/executiveorders. The respondents shall include updates on these information dissemination efforts in their weekly status reports.
Finally, the respondents shall conduct biweekly COVID-19 testing of all consenting detainees housed in the vulnerable detainees’ units. As noted above, this Court likely cannot compel all detainees to wear masks at all times, a reality which heightens the vulnerable detainees’ risk of infection given that other detainees move in and out of the housing units for court appearances and other matters. The respondents shall include the test results in their weekly status reports. If testing availability or some other factor makes this impossible or impractical, the respondents may petition the Court for relief from this requirement.
ORDER
In light of the above, IT IS HEREBY ORDERED that the preliminary injunction entered April 27, 2020, Jones, Docket Item 89; Ramsundar, Docket Item 27, is amended to require the respondents, within one week of the date of this order, to post signs throughout BFDF in English, Spanish, and any other language necessary to communicate the information to substantially all detainees at BFDF, advising detainees about the importance of, and providing guidance with respect to, wearing masks and maintaining six feet of distance to protect others from asymptomatic transmission; and it is further ORDERED that the preliminary injunction entered April 27, 2020, Jones, Docket Item 89; Ramsundar, Docket Item 27, is amended to require the respondents, within one week of the date of this order, to post or otherwise provide detainees with written copies of all prior and future executive orders issued by Governor Cuomo concerning
8

Case 1:20-cv-00361-LJV Document 109 Filed 05/20/20 Page 9 of 9

COVID-19 (202–202.31) in all languages available on the New York State website (Bengali, Mandarin, Haitian-Creole, Korean, Russian, and Spanish); and it is further
ORDERED that the preliminary injunction entered April 27, 2020, Jones, Docket Item 89; Ramsundar, Docket Item 27, is amended to require the respondents to conduct biweekly COVID-19 testing of all consenting detainees housed in the vulnerable detainees’ units; and it is further
ORDERED that the preliminary injunction entered April 27, 2020, Jones, Docket Item 89; Ramsundar, Docket Item 27, is amended to require that information on the following be included in the respondents’ weekly status updates: (1) posting of language-accessible signage; (2) posting or provision of language-accessible copies of executive orders; and (3) for each unit, the total number of positive and negative COVID-19 tests.

SO ORDERED.

Dated:

May 20, 2020 Buffalo, New York

/s/ Hon. Lawrence J. Vilardo LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE

9

 
 Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 1 of 16

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

SHANE RAMSUNDAR, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-402 ORDER

VERNON JONES, et al., Petitioners,
v. CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security, et al.,
Respondents.

20-CV-361 ORDER

The petitioners in these two actions are 15 civil immigration detainees1 held in the custody of the Department of Homeland Security, Immigration and Customs

1 The Court previously dismissed as moot the petitions of Jones petitioners Adelakoun, Commissiong, Lainez Mejia, Nwankwo, and Rahmee, and Ramsundar petitioner Cedeno-Larios, because ICE had released or removed them. See Jones, Docket Items 92, 107; Ramsundar, Docket Item 29. The respondents also have released or removed Jones petitioners Bhuyan, Espinal-Polanco, Falodun, Harsit, and Jones, as well as Ramsundar petitioners Gomatee Ramsundar. See Jones, Docket Item 129 at 3; Docket Item 134 at 2 n.3. Because Jones, Bhuyan, Espinal-Polanco, Falodun, Harsit, and Gomatee Ramsundar have been released from "ICE custody, the[ir] petition[s] ha[ve] been rendered moot divesting the Court of subject matter jurisdiction" over their petitions. Diop v. Sessions, 2019 WL 1894387, at *2 (S.D.N.Y. Mar. 20, 2019).

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 2 of 16
Enforcement (“ICE”) at the Buffalo Federal Detention Facility in Batavia, New York (“BFDF”). They have filed “Emergency Petition[s] for Writ[s] of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint[s] for Injunctive Relief.” Jones v. Wolf, No. 20-CV-361, Docket Item 1; Ramsundar v. Wolf, No. 20-CV-402, Docket Item 1. In both cases, the petitioners alleged that their continued civil detention in the wake of the COVID-19 pandemic violated their substantive rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, and they sought their immediate release from ICE custody. Jones, Docket Item 1 at 23-24; Ramsundar, Docket Item 1 at 20. According to the petitions, each petitioner was “either over the age of fifty and/or [had] a serious underlying medical condition, making [him or her] more vulnerable to complications arising from COVID-19.” Jones, Docket Item 1 at 43; Ramsundar, Docket Item 1 at 4.
On April 2, 2020, this Court found that holding vulnerable individuals, as defined by the Centers for Disease Control and Prevention (“CDC”), in the then-current conditions at BFDF during the COVID-19 pandemic violated their substantive Due Process rights to reasonably safe conditions of confinement. Jones v. Wolf, No. 20-CV361, 2020 WL 1643857, at *2-12 (W.D.N.Y. Apr. 2, 2020). The Court ordered the respondents to provide petitioners who met the CDC’s vulnerability criteria with a living situation that facilitated “social distancing.” Id. at *14. If the respondents did so, the violation would be rectified and judicially-ordered release would not be necessary. Id. at *14-15.
2

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 3 of 16
On April 9, 2020, this Court found that the respondents’ proposed measures to
facilitate “social distancing”2 would be sufficient to remedy the previously-identified Due
Process violation. Jones, Docket Item 71; Ramsundar, Docket Item 12. The
respondents’ medical expert, Captain Abelardo Montalvo, M.D., represented that all
vulnerable petitioners were afforded the following “social distancing” measures:
a. Maintaining a distance of 6 feet between individuals;
b. Providing space at meal time so that each detainee can remain 6 feet away from any other detainee, and allowing detainees to eat at their beds for maximum distancing;
c. Pre-screening all visitors to the housing units (which will consist solely of BFDF staff) by taking temperatures and seeing if the person is exhibiting flulike symptoms;
d. Providing for individual cells and/or beds with 6 feet of separation between each bed;
e. Providing outdoor recreation in areas allowing for detainees to maintain 6 feet of separation from any other detainee.
Jones, Docket Item 45 at 2. Captain Montalvo further represented that the following
additional steps related to personal protective equipment (“PPE”) were being taken at
BFDF “to help combat the introduction, and limit the spread, of COVID-19”:
2 “Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19.” Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control and Prevention (last updated July 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html.
3

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 4 of 16
. . . [c]arrying of masks for detainee use and staff use during transports or pick-ups; . . . [d]etainees who are moved out of the . . . quarantine unit[s] for any type emergency will be required to wear N-95 mask and gloves; . . . [i]ncreased stock of PPE and cleaning supplies; . . . [f]it testing of PPE masks for custody staff and removal of facial hair that may interfere with tight seal of mask to face; . . . [u]se of surgical masks for detainee use to reduce exposure; . . . [and w]eekly counting of PPE to monitor supplies. Ramsundar, Docket Item 6-2 at 6-7. Accordingly, the Court granted the petitioners’ motions for temporary restraining orders only in part. Jones, Docket Item 71; Ramsundar, Docket Item 12. On April 27, 2020, the Court converted the temporary restraining orders into preliminary injunctions. Jones, Docket Item 89; Ramsundar, Docket Item 27. And on May 20, 2020, after holding a remote evidentiary hearing on the conditions at BFDF, the Court amended the preliminary injunctions. Jones, Docket Item 109; Ramsundar, Docket Item 45. As amended, the preliminary injunctions prohibit the respondents from denying any of the following “social distancing” and other protective measures to petitioners “who me[e]t the CDC’s criteria for vulnerability to COVID-19”: placement in singleoccupancy cells; accommodation to eat meals in those cells and to bathe and shower in isolation; the provision, without charge, of sufficient shower disinfectant, masks, and ample soap. Jones, Docket Item 89 at 9-10; Ramsundar, Docket Item 27 at 9-10. It also requires that all BFDF staff and officers wear masks whenever interacting with vulnerable petitioners; that BFDF post language-accessible signs communicating information about wearing face masks and social distancing; that BFDF provide detainees language-accessible copies of all prior and future executive orders issued by Governor Cuomo concerning COVID-19; and that BFDF conduct biweekly COVID-19
4

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 5 of 16
testing of all consenting detainees housed in the vulnerable detainees’ units. See Jones, Docket Item 109.
The respondents also must submit weekly status reports detailing: (1) the conditions of confinement for each vulnerable petitioner (cell occupancy, meal and bathing accommodations, soap and mask provision, and officer and staff mask use); (2) the total number of infected and hospitalized BFDF detainees, including any who subsequently were transferred out of BFDF; (3) the total number of infected BFDF ICE officers and non-government staff members; (4) for each unit, the total number of infected detainees, officers, and staff (disaggregated) who have lived or worked in that unit in the past 14 days; (5) the status of language-accessible signage; (6) the status of language-accessible copies of executive orders; and (7) for each unit, the total number of positive and negative COVID-19 tests. Jones, Docket Items 89, 109; Ramsundar, Docket Item 27, 45.
The table below summarizes the status of each of the original 27 petitioners, 15 of whom remain in ICE custody. See Docket Item 129 at 2-3, 4; Docket Item 134 at 2. Presently before the Court are the parties’ submissions concerning the appropriate scope of the final relief in this matter. See Jones, Docket Items 111, 113, 129, 132; Ramsundar, Docket Item 62.
5

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 6 of 16

Case
Jones Jones Jones Jones Jones Jones Jones Jones Ramsundar

Last Name
Blackman Braithwaite Chery Concepcion Forbes Jules Quintanilla-Mejia Sow Ramsundar, Shane

Medical Status (per ICE)
Vulnerable Vulnerable Vulnerable Vulnerable Vulnerable Vulnerable Vulnerable Vulnerable Vulnerable

Housing Status
single-occupancy cell single-occupancy cell single-occupancy cell single-occupancy cell single-occupancy cell single-occupancy cell single-occupancy cell single-occupancy cell single-occupancy cell

Jones Jones Ramsundar

Narain Thomas Antonio Espinoza

Non-Vulnerable Non-Vulnerable Non-Vulnerable

single-occupancy cell single-occupancy cell single-occupancy cell

Jones Jones Jones

Donga Wilson Salcedo

Non-Vulnerable Non-Vulnerable Non-Vulnerable

dorm dorm double-occupancy cell

Jones Jones Jones Jones Jones Jones Jones Jones Jones Jones Ramsundar
Ramsundar Table 1

Adelakoun Bhuyan Commissiong Espinal-Polanco Falodun Harsit Jones Lainez Mejia Nwankwo Rahmee Cedeno Larios Ramsundar, Gomatee

Vulnerable -
-

released released released released removed released released removed released released released
released

6

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 7 of 16
DISCUSSION Having considered the parties’ arguments, this Court converts the preliminary injunction into a permanent injunction, with certain modifications that reflect current CDC guidance. For the reasons stated in this Court’s prior orders, the actions taken by the respondents remedy the previously-identified Due Process violations, and release is unnecessary. See Jones, 2020 WL 1643857, at *14; Jones, Docket Item 71 at 5-6; Ramsundar, Docket Item 12; see also Jones, Docket Item 134 at 6 (August 26, 2020, status update reporting 49 total positive tests among BFDF detainees since April 2020, and none in the previous two weeks). Nevertheless, the injunction shall remain in place. As of August 22, 2020, 168,000 Americans have died from COVID-19, and infection rates remain steady.3 Although the Court commends the respondents for taking extensive measures to protect the petitioners—some beyond those mandated by the Court—the pandemic is far from over, and the recent resurgence underscores the critical importance of these special protections.
A. Petitioners Antonio Espinoza, Chery, Donga, Jules, Narain, Salcedo, Thomas, and Wilson
With respect to petitioners Antonio Espinoza, Chery, Donga, Jules, Narain, Salcedo, Thomas, and Wilson, the Court finds that petitioners Chery and Jules now meet the CDC’s vulnerability criteria.
3 See Cases in the U.S., Ctrs. for Disease Control and Prevention (last updated August 28, 2020), https://www.cdc.gov/nchs/nvss/vsrr/covid19/index.htm.
7

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 8 of 16
In April 2020, Captain Montalvo determined that petitioners who fell into one or
more of the following categories met the CDC’s definition of vulnerable individuals:
a. People 65 years and older
b. People who live in a nursing home or long-term care facility
c. People of all ages with underlying medical conditions, particularly if not well controlled, including
i. People with chronic lung disease or moderate to severe asthma ii. People who have serious heart conditions iii. People who are immunocompromised . . . [including those with the following conditions]:
1. Cancer treatment 2. Smoking 3. bone marrow or organ transplant 4. immune deficiencies 5. poorly controlled HIV or AIDs, and 6. prolonged use of corticosteroids and other immune weakening medications v. People with severe obesity (body mass index [BMI] of 40 or higher) vi. People with diabetes vii. People with chronic kidney disease undergoing dialysis viii. People with liver disease.
Jones, Docket Item 57 at 2-3.
On June 25, 2020, the CDC amended its guidance to reflect that “[o]lder [a]dults”
and “[p]eople with [m]edical [c]onditions” were at “[i]ncreased [r]isk for [s]evere
[i]llness.”4 With respect to older adults, the CDC has rejected the bright-line rule of 65
years of age and now advises:
Among adults, the risk for severe illness from COVID-19 increases with age, with older adults at highest risk. . . . For example, people in their 50s are at higher risk for severe illness than people in their 40s. Similarly, people in their 60s or 70s are, in general, at higher risk for severe illness than people
4 See People at Increased Risk, Ctrs. for Disease Control and Prevention (Aug. 10, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/index.html.
8

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 9 of 16
in their 50s. The greatest risk for severe illness from COVID-19 is among those aged 85 or older.5 With respect to medical conditions, the CDC has divided its previous list into two categories of conditions—those that put “people of any age . . . at increased risk” and those that “might” place people of any age “at an increased risk.”6 The former category—supported by the “[s]trongest and [m]ost [c]onsistent [e]vidence”—includes serious heart conditions; cancer; chronic kidney disease; chronic obstructive pulmonary disease (“COPD”); obesity, defined as having a Body Mass Index (“BMI”) of 30 or higher; sickle cell disease; immunocompromised state from a solid organ transplantation; and type-2 diabetes.7 The latter category—supported by either “[m]ixed” or “[l]imited” evidence—includes asthma; cerebrovascular disease; cystic fibrosis; hypertension; pregnancy; smoking; use of corticosteroids or other immunosuppressive medications; immunocompromise stated from a blood or bone marrow transplantation, HIV, other immune deficiencies; neurologic conditions; other chronic lung diseases; liver disease; type-1 diabetes; pulmonary fibrosis; and thalassemia.8
5 Older Adults, Ctrs. for Disease Control and Prevention (Aug. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.
6 People with Certain Medical Conditions, Ctrs. for Disease Control and Prevention (Aug. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html.
7 Evidence used to update the list of underlying medical conditions that increase a person’s risk of severe illness from COVID-19, Ctrs. for Disease Control and Prevention (July 28, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/evidence-table.html.
8 Id.
9

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 10 of 16
The CDC also has amended its prior guidance specifically for correctional and detention facilities. In its guidance on managing an outbreak, the CDC recommends isolating individuals “at higher risk of severe illness.”9 Those individuals, the CDC explains, include the two categories outlined above—older adults and people with certain medical conditions—with the added caveat that “incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages.” Id.
In light of these updates, osteopath Eugene Charbonneau, D.O., ICE Health Services Corps, revised BFDF’s vulnerability criteria. See Jones, Docket Item 129-1. He concluded that Jones petitioners Chery (BMI is 30.22) and Jules (BMI 33.61) now qualify as vulnerable individuals. Id. at 6. But he found that Jones petitioners Donga (history of smoking), Narain (age 59), Salcedo (age 57), Thomas (asthma), and Wilson (age 51, history of smoking), as well as Ramsundar petitioner Antonio Espinoza (age 50), still do not qualify.
As this Court has noted, it “is trained in the law, not medicine. The best it can do in this situation is turn to the experts.” Jones , 2020 WL 1643857, at *7. The petitioners deemed non-vulnerable by ICE have not submitted competing declarations specific to their individual conditions, medical histories, and current statuses,10 leaving this Court
9 Ctrs. for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities 16 (May 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf.
10 The petitioners argue that “Dr. Charbonneau’s blank conclusions . . . are not supported by any meaningful evaluations of [the] petitioners’ actual and current physical conditions.” Jones, Docket Item 132 at 6. But the petitioners have not submitted any competing evaluations that would remedy this alleged deficiency. Cf. Jones, Docket Item 14 at 2-3 (Joe Goldenson, M.D., declaring that “many who are housed in jails,
10

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 11 of 16
with only the recommendations of the respondents’ medical experts. The Court accordingly finds that Jones petitioners Chery and Jules are entitled to the full panoply of protections previously ordered in this matter.11 But Jones petitioners Donga, Salcedo, and Wilson are not. The Court therefore dismisses their petitions, but they may file new petitions should the CDC’s guidance change to include them under the umbrella of vulnerable individuals or should they otherwise obtain competent medical evidence of their individual vulnerability. The Court need not decide whether Narain, Thomas, and Antonio Espinoza in fact meet the CDC’s criteria; given their placement in single-occupancy cells, they already have received all the relief the Court otherwise would grant them, rendering their petitions moot.
B. Final Injunction The question then is the appropriate length of time to enjoin the respondents’ actions. This Court’s order in Jones identified the Due Process violation as deriving from the fact that the social distancing “measure[s] that the government has forcibly— under threat of civil penalties—imposed on all persons within its jurisdiction cannot, at the same time, be forcibly denied to some portion of that population.” 2020 WL
prisons, and detention centers [are] physically 10 years older than their chronological age” (emphasis added)); Jones, Docket Item 50 at 3 (Marc Stern, M.D., declaring that “individuals in jails and prisons are physiologically comparable to individuals in the community several years older” (emphasis added))
11 The petitioners ask that, if the Court expands the protections to new individuals, it also “”restrict [the respondents] from placing any vulnerable individuals in [the Special Housing Unit (“SHU”)].” Docket Item 132 at 12. In the absence of any allegation that such placement already has happened, or at least is likely to happen imminently, the Court will not preemptively decide this substantial constitutional question. The vulnerable petitioners may amend their petitions if they are, in fact, placed in the SHU.
11

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 12 of 16
1643857, at *12 (alteration in original). This Court focused in particular on the fact that the Governor of New York, Andrew Cuomo, had “taken a number of unprecedented steps,” including “closing . . . all schools and universities, as well as nearly all businesses and places of public accommodation, and . . . prohibit[ing] nonessential gatherings of any size through at least April 15, 2020.” Id. at *11 (alteration in original) (citation and footnote omitted).
The petitioners ask this Court to maintain the injunction “as long as the COVID19 crisis remains a danger to [the p]etitioners.” Jones, Docket Item 111 at 27. The respondents find this standard “vague” and ask, instead, that the Court “fashion requirements for the lifting of the injunction that take into account the rural location of . . . BFDF” and “consider[s] the restrictions in place at BFDF, whereby all entrants are screened, have their temperatures taken, and are questioned about symptoms and exposure to COVID-19.” Jones, Docket Item 1113 at 9.
Because the Due Process violation at issue stemmed from the government’s failure to afford protections commensurate with those otherwise mandated by executive officials, the remedy similarly must rest on that basis. Since this Court preliminarily enjoined the respondents, Governor Cuomo has extended the emergency declaration and many of the closure orders and gathering limits through at least September 4, 2020.12 The Governor’s orders provide, among other things, that “any individual who is over age two and able to medically tolerate a face-covering shall be required to cover
12 See, e.g., N.Y. Exec. Order No. 202.57 (August 20, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO202.57.pdf; N.Y. Exec. Order No. 202.55 (August 5, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.55.pdf.
12

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 13 of 16
their [sic] nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance.”13 Governor Cuomo also has mandated fourteen-day quarantines, under threat of civil penalties up to $10,000, for anyone entering New York State from areas with significant community spread of COVID-19; that list currently includes 31 states and territories.14 The United States Department of Health and Human Services’ public health emergency declaration remains in place.15
The Court agrees that in light of the patchwork response to the pandemic playing out across the country, the appropriate reference point is executive branch of New York State. The injunction will remain in place until Governor Cuomo lifts current restrictions on social-distancing. More specifically, until the Governor determines that individuals safely may congregate closer than six feet from each other, without wearing a mask, the terms of this injunction will remain in place.
13 N.Y. Exec. Order No. 202.17 (Apr. 15, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.17.pdf.
14 N.Y. Exec. Order No. 205 (Jun. 24, 2020), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO205.pdf; COVID19 Travel Advisory, N.Y. Dep’t of Health (last visited August 28, 2020), https://coronavirus.health.ny.gov/covid-19-travel-advisory.
15 See Alex M. Azar II, Secretary of Health and Human Svcs., Renewal of Determination That a Public Health Emergency Exists, U.S. Dept. of Health & Human Svcs. (July 23, 2020), https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid1923June2020.aspx.
13

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 14 of 16
ORDER
In light of the above, IT IS HEREBY ORDERED under Rule 42(a)(2) of the Federal Rules of Civil Procedure that the Clerk of Court shall consolidate Jones, 20-cv-361, and Ramsundar, 20-cv-402, under case number 20-cv-361; close the case bearing number 20-cv-402; and docket all future submissions in these matters under case number 20-cv-361; and it is further ORDERED that the petitions of Jones petitioners Adelakoun, Bhuyan, Commissiong, Espinal-Polanco, Falodun, Harsit, Jones, Lainez Mejia, Narain, Nwankwo, Rahmee, and Thomas, and of Ramsundar petitioners Antonio Espinoza, Cedeno-Larios, and Gomatee Ramsundar, are DISMISSED as moot, and the Clerk of Court shall terminate them as parties to this consolidated action; and it is further ORDERED that the petitions of Jones petitioners Donga, Salcedo, and Wilson are DISMISSED, and the Clerk of Court shall terminate them as parties to this consolidated action; and it is further ORDERED that the petitions of Jones petitioners Blackman, Brathwaite, Chery, Concepcion, Forbes, Jules, Quintanilla-Mejia, and Sow, and Ramsundar petitioner Shane Ramsundar, are GRANTED IN PART and DENIED IN PART; and it is further ORDERED that the respondents are enjoined from denying any of the following “social distancing” and other protective measures to Jones petitioners Blackman, Brathwaite, Chery, Concepcion, Forbes, Jules, Quintanilla-Mejia, and Sow, and Ramsundar petitioner Shane Ramsundar: placement in single-occupancy cells; accommodation to eat meals in those cells and to bathe and shower in isolation; and
14

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 15 of 16
the provision, without charge, of sufficient shower disinfectant, masks, and ample soap; and it is further
ORDERED that all BFDF staff and officers shall wear masks whenever interacting with these vulnerable petitioners; and it is further
ORDERED that the respondents shall post signs throughout BFDF in English, Spanish, and any other language necessary to communicate the information to substantially all detainees at BFDF, advising detainees about the importance of, and providing guidance with respect to, wearing masks and maintaining six feet of distance to protect others from asymptomatic transmission; post or otherwise provide detainees with written copies of all prior and future executive orders issued by Governor Cuomo concerning COVID-19 (202–202.31) in all languages available on the New York State website (Bengali, Mandarin, Haitian-Creole, Korean, Russian, and Spanish); and conduct biweekly COVID-19 testing of all consenting detainees housed in the vulnerable detainees’ units; and it is further
ORDERED that the respondents shall provide the Court with a status update every 30 days that details: (1) the conditions of confinement for each vulnerable petitioner (cell occupancy, meal and bathing accommodations, soap and mask provision, officer and staff mask use, and the status of language-accessible signage and executive orders); and (2) for each unit at BFDF, the 30-day and running total of positive and negative COVID-19 tests, hospitalizations, and deaths among (a) detainees and (b) BFDF ICE officers and non-government staff members who have worked in that unit; and it is further
15

Case 1:20-cv-00361-LJV Document 135 Filed 08/31/20 Page 16 of 16

ORDERED that either party may move to lift this injunction when Governor Cuomo determines that individuals safely may congregate closer than six feet from each other, without wearing a mask.

SO ORDERED.

Dated:

August 31, 2020 Buffalo, New York

/s/ Lawrence J. Vilardo LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE

16