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Query Reports

SDNY CM/ECF NextGen Version 1.2
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U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:20-cv-02518-AT

HABEAS,ECF

Basank v. Decker et al Assigned to: Judge Analisa Torres Cause: 28:2241in Habeas Corpus: INS Petitioner Vasif Basank "Vincent"
Petitioner

Date Filed: 03/23/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus - Alien Detainee Jurisdiction: U.S. Government Defendant
represented by Alexandra Lynn Lampert Brooklyn Defender Services 156 Pierrepont Street Brooklyn, NY 11201 646-856-8378 Email: alampert@bds.org ATTORNEY TO BE NOTICED
Hannah McCrea Brooklyn Defender Services 156 Pierrepont Street Brooklyn, NY 11201 646-787-3326 Fax: 347-412-0931 Email: hmccrea@bds.org ATTORNEY TO BE NOTICED
Mary Sameera Van Houten Harper National Immigrant Justice Center 224 S Michigan Ave Ste 600 Chicago, IL 60604 347-675-8427 Email: mharper@heartlandalliance.org ATTORNEY TO BE NOTICED
Brooke Menschel Brooklyn Defender Services 177 Livingston Street, 7th Floor Brooklyn, NY 11201 (718)-254-0700 Fax: (718)-254-0897 Email: bmenschel@bds.org ATTORNEY TO BE NOTICED

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Freddy Barrera Carrerro

SDNY CM/ECF NextGen Version 1.2
represented by Alexandra Lynn Lampert (See above for address) ATTORNEY TO BE NOTICED

Mary Sameera Van Houten Harper (See above for address) ATTORNEY TO BE NOTICED

Petitioner Manuel Benitez Pineda

Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandra Lynn Lampert (See above for address) ATTORNEY TO BE NOTICED

Mary Sameera Van Houten Harper (See above for address) ATTORNEY TO BE NOTICED

Petitioner Miguel Angel Hernandez Balbuena

Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandra Lynn Lampert (See above for address) ATTORNEY TO BE NOTICED

Mary Sameera Van Houten Harper (See above for address) ATTORNEY TO BE NOTICED

Petitioner Latoya Legall

Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandra Lynn Lampert (See above for address) ATTORNEY TO BE NOTICED

Mary Sameera Van Houten Harper (See above for address) ATTORNEY TO BE NOTICED

Petitioner Carlos Martinez

Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandra Lynn Lampert

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(See above for address) ATTORNEY TO BE NOTICED

Mary Sameera Van Houten Harper (See above for address) ATTORNEY TO BE NOTICED

Petitioner Estanlig Mazariegos

Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandra Lynn Lampert (See above for address) ATTORNEY TO BE NOTICED

Mary Sameera Van Houten Harper (See above for address) ATTORNEY TO BE NOTICED

Petitioner Manuel Menendez

Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandra Lynn Lampert (See above for address) ATTORNEY TO BE NOTICED

Mary Sameera Van Houten Harper (See above for address) ATTORNEY TO BE NOTICED

Petitioner Antar Andres Pena

Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandra Lynn Lampert (See above for address) ATTORNEY TO BE NOTICED

Mary Sameera Van Houten Harper (See above for address) ATTORNEY TO BE NOTICED

Petitioner Isidro Picazo Nicolas

Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandra Lynn Lampert (See above for address)

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Petitioner Kenny Alfaro Petitioner Milton Barbecho Petitioner Thierry Barnebougle Petitioner Felipe Diaz Presbot Petitioner Nathaniel Lawrence Petitioner Edson Louis Petitioner Fredy Olaya Lugo Petitioner Jose Molina Petitioner Job Velasquez Estrada Petitioner Josue Manrique Vallejo

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ATTORNEY TO BE NOTICED Mary Sameera Van Houten Harper (See above for address) ATTORNEY TO BE NOTICED Brooke Menschel (See above for address) ATTORNEY TO BE NOTICED
represented by Kenny Alfaro PRO SE
represented by Milton Barbecho PRO SE
represented by Thierry Barnebougle PRO SE
represented by Felipe Diaz Presbot PRO SE
represented by Nathaniel Lawrence PRO SE
represented by Edson Louis PRO SE
represented by Fredy Olaya Lugo PRO SE
represented by Jose Molina PRO SE
represented by Job Velasquez Estrada PRO SE
represented by Josue Manrique Vallejo PRO SE

V.

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Respondent Director Thomas Decker in his ofﬁcial capacity as Director of the New York Field Ofﬁce of U.S. Immigration & Customs Enforcement
Respondent Acting Secretary Chad Wolf in his ofﬁcial capacity as Acting Secretary, U.S. Department of Homeland Security

SDNY CM/ECF NextGen Version 1.2
represented by Lucas Estlund Issacharoff United States Attorney's Ofﬁce Southern District Of New York 86 Chambers Street, Third Floor New York, NY 10007 212-637-2737 Fax: 212-637-2702 Email: Lucas.Issacharoff@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Byars U.S. Attorney's Ofﬁce, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 212-637-2793 Fax: 212-637-2786 Email: michael.byars@usdoj.gov ATTORNEY TO BE NOTICED
represented by Lucas Estlund Issacharoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael James Byars (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

03/23/2020

1 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2241. (Filing Fee $ 5.00, Receipt Number ANYSDC-19205037)Document ﬁled by Vasif "Vincent&q Basank. (Attachments: # 1 Exhibit A - Haney Declaration).(Menschel, Brooke) (Entered: 03/24/2020)

03/24/2020

2 CIVIL COVER SHEET ﬁled..(Menschel, Brooke) (Entered: 03/24/2020)

03/24/2020

CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Analisa Torres. Please download and review the Individual Practices of the assigned District Judge, located at https://nysd.uscourts.gov/judges/districtjudges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at https://nysd.uscourts.gov/rules/ecf-related-instructions..(pne) (Entered: 03/24/2020)

03/24/2020

Magistrate Judge Debra C. Freeman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notiﬁed that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: https://nysd.uscourts.gov/sites/default/ﬁles/201806/AO-3.pdf. (pne) (Entered: 03/24/2020)

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03/24/2020 03/24/2020
03/24/2020
03/25/2020
03/25/2020 03/25/2020 03/25/2020 03/26/2020
03/26/2020 03/26/2020

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Case Designated ECF. (pne) (Entered: 03/24/2020)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Brooke Menschel. The party information for the following party/parties has been modiﬁed: Vasif Basank, Thomas Decker, Chad Wolf. The information for the party/parties has been modiﬁed for the following reason/reasons: party name contained a typographical error; party text was omitted. (pne) (Entered: 03/24/2020)
***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Brooke Menschel. The following case opening statistical information was erroneously selected/entered: County code Kings. The following correction(s) have been made to your case entry: the County code has been modiﬁed to XX Out of State. (pne) (Entered: 03/24/2020)
3 FILING ERROR - DEFICIENT PLEADING - FILED AGAINST PARTY ERROR - FIRST AMENDED PETITION amending 1 Petition for Writ of Habeas Corpus against Vasif Basank, Barrera Carrerro Freddy, Manuel Benitez Pineda, Miguel Hernandez Balbuena, Latoya Legall, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Antar Andres Pena, Isidro Picazo Nicolas.Document ﬁled by Vasif Basank. Related document: 1 Petition for Writ of Habeas Corpus..(Menschel, Brooke) Modiﬁed on 3/26/2020 (jgo). (Entered: 03/25/2020)
4 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Alexandra Lynn Lampert on behalf of Vasif Basank, Manuel Benitez Pineda, Barrera Carrerro Freddy, Miguel Hernandez Balbuena, Latoya Legall, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Antar Andres Pena, Isidro Picazo Nicolas.(Lampert, Alexandra) (Entered: 03/25/2020)
5 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Mary Sameera Van Houten Harper on behalf of Vasif Basank, Manuel Benitez Pineda, Barrera Carrerro Freddy, Miguel Hernandez Balbuena, Latoya Legall, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Antar Andres Pena, Isidro Picazo Nicolas.(Van Houten Harper, Mary) (Entered: 03/25/2020)
6 MOTION for Temporary Restraining Order . Document ﬁled by Vasif Basank, Manuel Benitez Pineda, Barrera Carrerro Freddy, Miguel Hernandez Balbuena, Latoya Legall, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Antar Andres Pena, Isidro Picazo Nicolas. (Attachments: # 1 Exhibit Harper Decl.).(Van Houten Harper, Mary) (Entered: 03/25/2020)
7 ORDER: It is hereby ORDERED that a telephonic hearing will be held on March 26, 2020, at 12:00 p.m., on the Petitioners' application for a temporary restraining order, ECF No. 6. The parties are directed to call: 888-398-2342 or 215-861-0674, access code: 5598827. ( Telephone Conference set for 3/26/2020 at 12:00 PM before Judge Analisa Torres.) (Signed by Judge Analisa Torres on 3/26/2020) (cf) (Entered: 03/26/2020)
8 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Hannah McCrea on behalf of Vasif Basank.(McCrea, Hannah) (Entered: 03/26/2020)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Brooke Menschel to RE-FILE Document No. 3 Amended Petition. The ﬁling is deﬁcient for the following reason(s): the wrong party/parties whom the pleading is against were selected; all of the ﬁlers were not selected for the pleading. Re-ﬁle the pleading using the event type Amended Petition found under the event

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03/26/2020 03/26/2020 03/26/2020 03/26/2020
03/27/2020 03/27/2020 03/31/2020 03/31/2020
04/01/2020

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list Complaints and Other Initiating Documents - attach the correct signed PDF select the individually named ﬁler/ﬁlers - select the individually named party/parties the pleading is against. (jgo) (Entered: 03/26/2020)
Minute Entry for proceedings held before Judge Analisa Torres: Oral argument on the application for a Temporary Restraining Order, ECF No. 6, held on 3/26/2020. (Court Reporter Pamela Utter) (jw) (Entered: 03/26/2020)
9 AMENDED PETITION amending 3 Amended Petition,, 1 Petition for Writ of Habeas Corpus against Thomas Decker, Chad Wolf.Document ﬁled by Manuel Menendez, Carlos Martinez, Antar Andres Pena, Barrera Carrerro Freddy, Estanlig Mazariegos, Vasif Basank, Manuel Benitez Pineda, Latoya Legall, Miguel Hernandez Balbuena, Isidro Picazo Nicolas. Related document: 3 Amended Petition,, 1 Petition for Writ of Habeas Corpus..(Menschel, Brooke) Modiﬁed on 3/27/2020 (pc). (Entered: 03/26/2020)
10 NOTICE OF APPEARANCE by Michael James Byars on behalf of Thomas Decker, Chad Wolf..(Byars, Michael) (Entered: 03/26/2020)
11 MEMORANDUM AND ORDER granting 6 Motion for TRO. For the reasons stated above, the TRO is GRANTED. Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities are ORDERED to immediately release Petitioners today on their own recognizance without fail. Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. The TRO will expire on April 9, 2020, at 6:30 p.m. No later than April 2, 2020, at 12:00 p.m., Respondents must show cause why the TRO should not be converted to a preliminary injunction. Petitioners may ﬁle a response no later than April 7, 2020, at 12:00 p.m. SO ORDERED. (Signed by Judge Analisa Torres on 3/26/2020) (rro) (Main Document 11 replaced on 3/27/2020) (cf). (Main Document 11 replaced on 3/30/2020) (cf). (Entered: 03/26/2020)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Brooke Menschel. The party information for the following party/parties has been modiﬁed: Miguel Hernandez Balbuena, Barrera Carrerro Freddy. The information for the party/parties has been modiﬁed for the following reason/reasons: party name contained a typographical error;. (pc) (Entered: 03/27/2020)
12 ORDER: Petitioners' request, made at the telephonic hearing, for leave to amend their petition to add class claims is DENIED. (Signed by Judge Analisa Torres on 3/27/2020) (cf) (Entered: 03/27/2020)
13 NOTICE OF APPEARANCE by Lucas Estlund Issacharoff on behalf of Thomas Decker, Chad Wolf..(Issacharoff, Lucas) (Entered: 03/31/2020)
14 PROPOSED ORDER TO SHOW CAUSE WITHOUT EMERGENCY RELIEF. Document ﬁled by Vasif Basank, Manuel Benitez Pineda, Freddy Barrera Carrerro, Latoya Legall, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Miguel Angel Hernandez Balbuena, Antar Andres Pena, Isidro Picazo Nicolas, Kenny Alfaro, Milton Barbecho, Thierry Barnebougle, Felipe Diaz Presbot, Nathaniel Lawrence, Edson Louis, Fredy Olaya Lugo, Jose Molina, Job Velasquez Estrada, Josue Manrique Vallejo. (Attachments: # 1 Afﬁdavit, # 2 Motion for Leave, # 3 Exhibit Ex. A: Proposed Amended Petition, # 4 Exhibit Ex. B: Proposed Amended Petition - Redline) Related Document Number: [20-cv-2518]..(Menschel, Brooke) Proposed Order to Show Cause to be reviewed by Clerk's Ofﬁce staff. (Entered: 03/31/2020)
***NOTICE TO COURT REGARDING PROPOSED ORDER TO SHOW CAUSE WITHOUT EMERGENCY RELIEF. Document No. 14 Proposed Order

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04/01/2020
04/01/2020
04/02/2020 04/02/2020 04/02/2020 04/02/2020 04/03/2020 04/03/2020 04/03/2020 04/03/2020 04/07/2020

SDNY CM/ECF NextGen Version 1.2
to Show Cause Without Emergency Relief was reviewed and approved as to form. (dt) (Entered: 04/01/2020)
15 ORDER TO SHOW CAUSE: 1. By April 2, 2020, at 12:00 p.m., Respondents shall ﬁle a return on the Order to Show Cause why the Motion for Leave to Amend should not be granted. 2. By April 1, 2020, at 1:00 p.m., Petitioners shall serve a copy of this Order to Show Cause and all papers ﬁled at ECF No. 14 upon Respondents. Service by email shall be deemed sufﬁcient. 3. By April 1, 2020, at 5:00 p.m., Petitioners shall ﬁle proof of service to the docket. (Signed by Judge Analisa Torres on 4/1/2020) (cf) (Entered: 04/01/2020)
16 CERTIFICATE OF SERVICE of Order to Show Cause, Motion for Leave to Amend served on Thomas Decker, Chad Wolf on April 1, 2020. Service was accepted by Michael Byars. Document ﬁled by Kenny Alfaro, Milton Barbecho, Thierry Barnebougle, Vasif Basank, Manuel Benitez Pineda, Felipe Diaz Presbot, Freddy Barrera Carrerro, Nathaniel Lawrence, Latoya Legall, Edson Louis, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Miguel Angel Hernandez Balbuena, Jose Molina, Fredy Olaya Lugo, Antar Andres Pena, Isidro Picazo Nicolas, Josue Manrique Vallejo, Job Velasquez Estrada..(Menschel, Brooke) (Entered: 04/01/2020)
17 MEMORANDUM OF LAW in Opposition re: 6 MOTION for Temporary Restraining Order . . Document ﬁled by Thomas Decker, Chad Wolf. (Attachments: # 1 Moon Declaration, # 2 Ahrendt Declaration, # 3 Ortiz Declaration, # 4 Dawson Declaration, # 5 Exhibit A - J, # 6 Exhibit K - T).(Issacharoff, Lucas) (Entered: 04/02/2020)
18 OPPOSITION BRIEF re: 15 Order to Show Cause,, Motion to Add Parties. Document ﬁled by Thomas Decker, Chad Wolf..(Issacharoff, Lucas) (Entered: 04/02/2020)
19 AFFIRMATION of Kristopher Dawson (Corrected) in Opposition re: 6 MOTION for Temporary Restraining Order .. Document ﬁled by Thomas Decker, Chad Wolf.. (Issacharoff, Lucas) (Entered: 04/02/2020)
20 ORDER: Accordingly, Petitioners' request to add the Proposed Petitioners is DENIED. The Proposed Petitioners may immediately reﬁle their petition with the Clerk of Court for random assignment. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 4/2/2020) (cf) (Entered: 04/02/2020)
21 LETTER MOTION for Leave to File Declarations addressed to Judge Analisa Torres from Lucas Issacharoff dated 4/3/2020. Document ﬁled by Thomas Decker, Chad Wolf. (Attachments: # 1 Edwards Declaration (Hudson), # 2 Corrected Ortiz Declaration (Essex)).(Issacharoff, Lucas) (Entered: 04/03/2020)
22 ORDER granting 21 Letter Motion for Leave to File Document. GRANTED. (Signed by Judge Analisa Torres on 4/3/2020) (cf) (Entered: 04/03/2020)
23 AFFIRMATION of Ron Edwards in Opposition re: 6 MOTION for Temporary Restraining Order .. Document ﬁled by Thomas Decker, Chad Wolf..(Issacharoff, Lucas) (Entered: 04/03/2020)
24 AFFIRMATION of Alfaro Ortiz (corrected) in Opposition re: 6 MOTION for Temporary Restraining Order .. Document ﬁled by Thomas Decker, Chad Wolf.. (Issacharoff, Lucas) (Entered: 04/03/2020)
25 LETTER addressed to Judge Analisa Torres from Brooke Menschel dated April 7, 2020 re: Basank v. Decker, 20-cv-2518, request to ﬁle beyond page limit. Document ﬁled by Vasif Basank, Manuel Benitez Pineda, Freddy Barrera Carrerro, Latoya Legall, Carlos

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04/07/2020
04/07/2020 04/08/2020 04/09/2020 04/15/2020 04/15/2020 04/23/2020
04/24/2020

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Martinez, Estanlig Mazariegos, Manuel Menendez, Miguel Angel Hernandez Balbuena, Antar Andres Pena, Isidro Picazo Nicolas..(Menschel, Brooke) (Entered: 04/07/2020)
26 REPLY MEMORANDUM OF LAW in Support re: 6 MOTION for Temporary Restraining Order . . Document ﬁled by Vasif Basank, Manuel Benitez Pineda, Freddy Barrera Carrerro, Latoya Legall, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Miguel Angel Hernandez Balbuena, Antar Andres Pena, Isidro Picazo Nicolas. (Attachments: # 1 Afﬁdavit Legall Declaration, # 2 Afﬁdavit Dioni Declaration, # 3 Afﬁdavit Picasso Declaration, # 4 Afﬁdavit Lituma Declaration, # 5 Afﬁdavit Sanchez Declaration, # 6 Afﬁdavit Basank Declaration, # 7 Afﬁdavit Saenz Declaration).(Menschel, Brooke) (Entered: 04/07/2020)
27 MEMO ENDORSEMENT on re: 25 Letter, ﬁled by Miguel Angel Hernandez Balbuena, Latoya Legall, Vasif Basank, Freddy Barrera Carrerro, Manuel Benitez Pineda, Manuel Menendez, Antar Andres Pena, Estanlig Mazariegos, Isidro Picazo Nicolas, Carlos Martinez. ENDORSEMENT: GRANTED. (Signed by Judge Analisa Torres on 4/7/2020) (cf) (Entered: 04/07/2020)
28 ORDER: The parties, having briefed their positions in response to the Court's order to show cause why the temporary restraining order ("TRO"), ECF No. 11, should not be converted to a preliminary injunction, see id. at 15, it is hereby ORDERED that the TRO shall remain in effect until April 23, 2020, at 6:30 p.m. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 4/8/2020) (cf) (Entered: 04/08/2020)
29 LETTER addressed to Judge Analisa Torres from Lucas Issacharoff dated 4/9/2020 re: Updated Declarations. Document ﬁled by Thomas Decker, Chad Wolf. (Attachments: # 1 Amended Edwards Declaration, # 2 Second Amended Ortiz Declaration, # 3 Amended Ahrendt Declaration).(Issacharoff, Lucas) (Entered: 04/09/2020)
30 TRANSCRIPT of Proceedings re: CONFERENCE held on 3/26/2020 before Judge Analisa Torres. Court Reporter/Transcriber: Pamela Utter, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/6/2020. Redacted Transcript Deadline set for 5/18/2020. Release of Transcript Restriction set for 7/14/2020..(McGuirk, Kelly) (Entered: 04/15/2020)
31 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an ofﬁcial transcript of a CONFERENCE proceeding held on 3/26/2020 has been ﬁled by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to ﬁle with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is ﬁled, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 04/15/2020)
32 OPINION AND ORDER: For the reasons stated in this opinion, it is hereby ORDERED that Petitioners' request for a preliminary injunction is GRANTED as follows: (1) Petitioners shall remain released, subject to conditions to be set by the Court, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes unless Respondents ﬁrst obtain the Court's permission. It is further ORDERED that the parties shall meet and confer, and propose reasonable conditions of release for each Petitioner by April 24, 2020. The preliminary injunction shall remain in effect until further order of the Court. (Signed by Judge Analisa Torres on 4/23/2020) (mro) (Entered: 04/23/2020)
33 LETTER addressed to Judge Analisa Torres from Brooke Menschel dated April 24, 2020 re: Basank v. Decker, Request for Extension of Time. Document ﬁled by Kenny

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04/27/2020

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Alfaro, Milton Barbecho, Thierry Barnebougle, Vasif Basank, Manuel Benitez Pineda, Felipe Diaz Presbot, Freddy Barrera Carrerro, Nathaniel Lawrence, Latoya Legall, Edson Louis, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Miguel Angel Hernandez Balbuena, Jose Molina, Fredy Olaya Lugo, Antar Andres Pena, Isidro Picazo Nicolas, Josue Manrique Vallejo, Job Velasquez Estrada..(Menschel, Brooke) (Entered: 04/24/2020)
35 MEMO ENDORSEMENT on re: 33 LETTER addressed to Judge Analisa Torres from Brooke Menschel dated April 24, 2020 re: Basank v. Decker, Request for Extension of Time. Document ﬁled by Kenny Alfaro, Milton Barbecho, et al. ENDORSEMENT: Granted. So ordered. (Signed by Judge Analisa Torres on 4/24/2020) (rjm) (Entered: 04/27/2020)
34 JOINT LETTER MOTION for Extension of Time addressed to Judge Analisa Torres from Lucas Issacharoff dated 4/27/2020. Document ﬁled by Thomas Decker, Chad Wolf..(Issacharoff, Lucas) (Entered: 04/27/2020)
36 ORDER granting 34 JOINT LETTER MOTION for Extension of Time addressed to Judge Analisa Torres from Lucas Issacharoff dated 4/27/2020. Document ﬁled by Thomas Decker, Chad Wolf. Granted. So ordered. (Signed by Judge Analisa Torres on 4/27/2020) (rjm) (Entered: 04/27/2020)
37 LETTER addressed to Judge Analisa Torres from Brooke Menschel dated April 27, 2020 re: Proposed Conditions. Document ﬁled by Kenny Alfaro, Milton Barbecho, Thierry Barnebougle, Vasif Basank, Manuel Benitez Pineda, Felipe Diaz Presbot, Freddy Barrera Carrerro, Nathaniel Lawrence, Latoya Legall, Edson Louis, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Miguel Angel Hernandez Balbuena, Jose Molina, Fredy Olaya Lugo, Antar Andres Pena, Isidro Picazo Nicolas, Josue Manrique Vallejo, Job Velasquez Estrada. (Attachments: # 1 Afﬁdavit Declaration, # 2 Exhibit Letter, # 3 Exhibit Letter).(Menschel, Brooke) (Entered: 04/27/2020)
38 ORDER. It is ORDERED that the following conditions of release shall apply to Estanlig Mazriegos: 1. Petitioner shall reside only at the address provided to the Court in the parties' joint ﬁling on April 27, 2020; 2. Petitioner shall comply with the order of protection issued in connection with his January 16, 2020 arrest; 3. Petitioner shall comply with all national, state, local, and Centers for Disease Control and Prevention guidelines and orders regarding COVID-19; 4. Petitioner shall be subject to electronic monitoring by Immigrations and Customs Enforcement ("ICE") via a GPS ankle bracelet; 5. Petitioner shall be subject to telephonic monitoring by ICE; 6. Petitioner shall provide ICE with a working telephone number at which he may be reached; 7. Petitioner shall not commit a federal, state, or local crime; and 8. Petitioner shall appear for any court hearings at which his presence is required, including proceedings before an immigration judge. SO ORDERED. (Signed by Judge Analisa Torres on 4/27/2020) (rjm) (Entered: 04/28/2020)
39 ORDER: On April 23, 2020, the Court granted Petitioners' application for a preliminary injunction and directed the parties to propose reasonable conditions of release for Petitioners. ECF No. 32. Having reviewed the parties' proposed conditions, ECF No. 37, it is ORDERED that the following conditions of release shall apply to Carlos Martinez: 1. Petitioner shall reside only at the address provided to the Court in the parties' joint ﬁling on April 27, 2020; 2. Petitioner shall comply with all national, state, local, and Centers for Disease Control and Prevention guidelines and orders regarding COVID-19; 3. Petitioner shall be subject to telephonic monitoring by Immigration and Customs Enforcement ("ICE"); 4. Petitioner shall provide ICE with a working telephone number at which he may be reached; 5. Petitioner shall not commit a federal, state, or local crime; and 6. Petitioner shall appear for any court hearings at which his

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presence is required, including proceedings before an immigration judge. (Signed by Judge Analisa Torres on 4/27/2020) (cf) (Entered: 04/28/2020)

04/27/2020 40

ORDER: On April 23, 2020, the Court granted Petitioners' application for a preliminary injunction and directed the parties to propose reasonable conditions of release for Petitioners. ECF No. 32. Having reviewed the parties' proposed conditions, ECF No. 37, it is ORDERED that the following conditions of release shall apply to Antar Andres Pene: 1. Petitioner shall reside only at the address provided to the Court in the parties' joint ﬁling on April 27, 2020; 2. Petitioner shall comply with all national, state, local, and Centers for Disease Control and Prevention guidelines and orders regarding COVID-19; 3. Petitioner shall be subject to telephonic monitoring by Immigration and Customs Enforcement ("ICE"); 4. Petitioner shall provide ICE with a working telephone number at which he may be reached; 5. Petitioner shall not commit a federal, state, or local crime; and 6. Petitioner shall appear for any court hearings at which his presence is required, including proceedings before an immigration judge. (Signed by Judge Analisa Torres on 4/27/2020) (cf) (Entered: 04/28/2020)

04/27/2020 41 ORDER: On April 23, 2020, the Court granted Petitioners' application for a preliminary injunction and directed the parties to propose reasonable conditions of release for Petitioners. ECF No. 32. Having reviewed the parties' proposed conditions, ECF No. 37, it is ORDERED that the following conditions of release shall apply to Freddy Barrera Carrerro: 1. Petitioner shall reside only at the address provided to the Court in the parties' joint ﬁling on April 27, 2020; 2. Petitioner shall comply with the order of protection issued in connection with his November 20, 2019 disorderly conduct conviction; 3. Petitioner shall comply with all national, state, local, and Centers for Disease Control and Prevention guidelines and orders regarding COVID-19; 4. Petitioner shall be subject to electronic monitoring by Immigration and Customs Enforcement ("ICE") via a GPS ankle bracelet; 5. Petitioner shall be subject to telephonic monitoring by ICE; 6. Petitioner shall provide ICE with a working telephone number at which he may be reached; 7. Petitioner shall not commit a federal, state, or local crime; and 8. Petitioner shall appear for any court hearings at which his presence is required, including proceedings before an immigration judge. (Signed by Judge Analisa Torres on 4/27/2020) (cf) (Entered: 04/28/2020)

04/27/2020 42

ORDER: it is ORDERED that the following conditions of release shall apply to Isidro Picazo Nicolas:1. Petitioner shall reside only at the address provided to the Court in the parties' joint ﬁling on April 27, 2020; 2. Petitioner shall comply with all national, state, local, and Centers for Disease Control and Prevention guidelines and orders regarding COVID-19; 3. Petitioner shall be subject to telephonic monitoring by Immigrations and Customs Enforcement ("ICE"); As further set forth in this Order. SO ORDERED. (Signed by Judge Analisa Torres on 4/27/2020) (ks) Modiﬁed on 4/29/2020 (ks). (Entered: 04/28/2020)

06/19/2020

43 NOTICE OF INTERLOCUTORY APPEAL from 32 Memorandum & Opinion,,. Document ﬁled by Thomas Decker, Chad Wolf. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit..(Issacharoff, Lucas) (Entered: 06/19/2020)

06/19/2020

Transmission of Notice of Appeal and Certiﬁed Copy of Docket Sheet to US Court of Appeals re: 43 Notice of Interlocutory Appeal. (tp) (Entered: 06/19/2020)

06/19/2020

Appeal Record Sent to USCA (Electronic File). Certiﬁed Indexed record on Appeal Electronic Files for 43 Notice of Interlocutory Appeal ﬁled by Chad Wolf, Thomas Decker were transmitted to the U.S. Court of Appeals. (tp) (Entered: 06/19/2020)

10/05/2020

44 MANDATE of USCA (Certiﬁed Copy) as to 43 Notice of Interlocutory Appeal ﬁled by Chad Wolf, Thomas Decker. USCA Case Number 20-1966. The parties in the above-

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referenced case have ﬁled a stipulation withdrawing this appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered"... Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/05/2020..(nd) (Entered: 10/05/2020)

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as Director of the New York Field Office of ICE, and Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. TRO at 1, ECF No. 6.
For the reasons stated below, the TRO is GRANTED, and (1) Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities, are ORDERED to immediately release Petitioners today on their own recognizance, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings.
BACKGROUND Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. They are housed in New Jersey county jails where either detainees or staff have tested positive for COVID-19. TRO at 3–4. Specifically, Petitioners Basank, Benitez Pineda, and Mazariegos are detained at the Hudson County Correctional Facility (“Hudson County Jail”). Petition ¶¶ 5, 7, 11. Petitioners Barrera Carrerro, Hernandez Balbuena, Legall, Martinez, and Menendez are detained at the Bergen County Correctional Facility (“Bergen County Jail”). Id. ¶¶ 6, 8, 9, 10, 12. Petitioners Pena and Picazo Nicolas are detained at the Essex County Correctional Facility (“Essex County Jail”). Id. ¶¶ 13–14.1 Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of death or serious injury in immigration detention if exposed to COVID-19. Basank is 54 years old and has a lengthy history of smoking. Id. ¶ 5. Barrera Carrerro, age 39, has underlying
1 During oral argument, Respondents represented to the Court that five Petitioners—Hernandez Balbuena, Legall, Menendez, Basank, and Benitez Pineda—are expected to be released today. However, because Petitioners are not yet released, and because counsel for Petitioners indicated, and Respondents did not dispute, that ICE may take as long as a day to complete the release process, the Court enters the TRO as to all Petitioners directing their immediate release today without fail.
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health conditions, including obesity, respiratory problems, a history of gastrointestinal problems, and colorectal bleeding. Id. ¶ 6. Benitez Pineda is 44, with pulmonary issues and a history of hospitalization for severe pneumonia. Id. ¶ 7. Hernandez Balbuena suffers from diabetes and diabetes-related complications. Id. ¶ 8. Legall is 33 years old, and suffers from respiratory problems, including asthma. Id. ¶ 9. Martinez, age 56, suffers from severe heart disease, and has a history of hospitalization for congestive heart failure, severe aortic valvular insufficiency, and acute systolic failure, requiring immediate heart valve replacement surgery. Id. ¶ 10. Mazariegos is 44, and suffers from high blood pressure and pre-diabetes. Id. ¶ 11. Menendez is 31 years old and suffers from chronic asthma. Id. ¶ 12. At 36, Pena is asthmatic and has chronic obstructive pulmonary disease (“COPD”), which require inhalers and other medical treatment. Id. ¶ 13. Picazo Nicolas, age 40, suffers from Type II diabetes and morbid obesity. Id. ¶ 14.
On March 16, 2020, Hannah McCrea, an attorney with Brooklyn Defender Services, emailed Assistant United States Attorney Michael Byars, requesting that ICE release particularly vulnerable individuals, including Petitioners Basank, Legall, Martinez, and Picazo Nicolas. Harper Decl. ¶ 2, ECF No. 6-1. On March 18, 2020, AUSA Byars responded that he did “not have a timeframe for ICE’s response.” Id. ¶ 3. On March 24, 2020, Alexandra Lampert, also a lawyer with Brooklyn Defender Services, emailed Byars to request the release of additional individuals identified as particularly vulnerable, including Petitioners Barrera Carrerro, Benitez Pineda, Hernandez Balbuena, Mazariegos, Menendez, and Pena. Id. ¶ 4. On March 25, 2020, Lampert again emailed Byars and informed him of Petitioners’ intent to seek a temporary restraining order in the Southern District of New York, with the amended petition attached, thus putting Respondents on notice of Petitioners’ serious medical conditions and their request for injunctive relief. Id. ¶¶ 5, 7.
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At 12:30 p.m. today, the Court held a telephonic hearing on Petitioners’ request for a TRO.
DISCUSSION I. Legal Standard
“A plaintiff seeking a temporary restraining order 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.” Natera, Inc. v. Bio-Reference Labs., Inc., No. 16 Civ. 9514, 2016 WL 7192106, at *2 (S.D.N.Y. Dec. 10, 2016) (internal quotation marks, citation, and alteration omitted).
“It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). “The showing of irreparable harm is perhaps the single most important prerequisite for a preliminary injunction.” CF 135 Flat LLC v. Triadou SPY N.A., No. 15 Civ. 5345, 2016 WL 2349111, at *1 (S.D.N.Y. May 3, 2016) (internal quotation marks, citation, and alteration omitted). Under this prong, the movant “must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages.” NAACP v. Town of E. Haven, 70 F.3d 219, 224 (2d Cir. 1995). To satisfy this requirement, a movant must demonstrate “that he would suffer irreparable harm if the TRO does not issue.” Andino, 555 F. Supp. 2d at 419. “The district court has wide discretion in determining whether to grant a preliminary injunction.” Almontaser v. N.Y.C. Dep’t of Educ., 519 F.3d 505, 508 (2d Cir. 2008) (internal quotation marks and citation omitted) (per curiam).
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II. Analysis A. Irreparable Harm
In the Second Circuit, 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 quotations and citations omitted). That harm must be “actual and imminent” rather than speculative. Id.
Petitioners have met their showing of irreparable harm, in establishing the risk of harm to their health and constitutional rights.
1. Risk of Death On March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a global pandemic. Petition ¶ 26. At that time, there were more than 118,000 cases in 114 countries, and 4,291 people had died. Id. ¶ 27. Merely two weeks later, there have been at least 458,927 cases identified in 172 countries and at least 20,807 people have died. Id. New York and its surrounding areas have become one of the global epicenters of the outbreak. Id. ¶ 35. Petitioners are held at detention facilities located in northern New Jersey. See id. ¶¶ 5–14. As of March 26, 2020, New Jersey has 4,407 confirmed cases of COVID-19—the second highest number of reported cases by any state after New York. Niko Kommenda and Pablo Gutierrez, Coronavirus map of the US: latest cases state by state, THE GUARDIAN (Mar. 26, 2020), https://www.theguardian.com/world/ng-interactive/2020/mar/26/coronavirus-map-of-theus-latest-cases-state-by-state. New Jersey also has the fourth most COVID-19 related deaths in the country. Id. The three counties where the jails are located—Bergen, Essex, and Hudson counties—comprise one third of the confirmed cases of COVID-19 in New Jersey, with Bergen County reporting 819 positive results, Essex reporting 381 positives, and Hudson 260. Petition
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¶ 36. The jails are no exceptions. Each of the jails where a Petitioner is being housed has reported confirmed cases of COVID-19. Id. ¶ 41. This includes two detainees and one correctional officer in the Hudson County Jail; one detainee at the Bergen County Jail; and a “superior officer” at the Essex County Jail. Id.
The nature of detention facilities makes exposure and spread of the virus particularly harmful. Jaimie Meyer M.D., M.S., who has worked extensively on infectious diseases treatment and prevention in the context of jails and prisons, recently submitted a declaration in this district noting that the risk of COVID-19 to people held in New York-area detention centers, including the Hudson, Bergen County, and Essex County jails, “is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42.
Moreover, medical doctors, including two medical experts for the Department of Homeland Security, have warned of a “tinderbox scenario” as COVID-19 spreads to immigration detention centers and the resulting “imminent risk to the health and safety of immigrant detainees” and the public. Catherine E. Shoichet, Doctors Warn of “Tinderbox scenario” if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/ doctors-ice-detention-coronavirus/index.html. “It will be nearly impossible to prevent widespread infections inside the Hudson, Bergen, and Essex County jails now that the virus is in the facilities because detainees live, sleep, and use the bathroom in close proximity with others, and because ‘[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.’” Petition ¶ 47 (internal quotation marks and citation omitted).
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Petitioners face serious risks to their health in their confinement. Each has underlying illnesses, including asthma, diabetes, heart disease, hypertension, obesity and respiratory problems including COPD. Id. ¶¶ 5–14. The Court 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. People at Risk for Serious Illness from COVID-19, CENTERS FOR DISEASE CONTROL (Mar. 20, 2020), https://www.cdc.gov/coronavirus/2019ncov/specific-groups/high-risk-complications.html (“Older people and people of all ages with severe underlying health conditions—like heart disease, lung disease and diabetes, for example—seem to be at higher risk of developing serious COVID-19 illness.”); Information for Healthcare Professionals: COVID-19 and Underlying Conditions, CENTERS FOR DISEASE CONTROL, (Mar. 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlyingconditions.html (listing, among other medical diagnoses, “moderate to severe asthma,” “heart disease,” “obesity,” and “diabetes” as conditions that trigger higher risk of severe illness from COVID-19); see Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”); Brickey v. Superintendent, Franklin Corr. Facility, No. 10 Civ. 085, 2011 WL 868148, at *2 n.3 (N.D.N.Y. Feb. 17, 2011) (taking judicial notice of the meaning and symptoms of the condition sciatica), report and recommendation adopted, 2011 WL 868087 (N.D.N.Y. Mar. 10, 2011); Lin v. Metro. Life Ins. Co., No. 07 Civ. 03218, 2010 WL 668817, at *1 (S.D.N.Y. Feb. 25, 2010) (“In its decision, the Court took judicial notice of certain medical background information about Hepatitis B.”).
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A number of courts in this district and elsewhere have recognized the threat that COVID19 poses to individuals held in jails and other detention facilities. See United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”) (collecting authorities); United States v. Garlock, 18 Cr. 418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (“By now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided. Several recent court rulings have explained the health risks—to inmates, guards, and the community at large—created by large prison populations. The chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual.” (citations omitted)); see also Letter from Mike McGrath, Chief Justice, Montana Supreme Court, to Montana Courts of Limited Jurisdiction Judges (Mar. 20, 2020), https://courts.mt.gov/Portals/ 189/virus/Ltr%20to%20COLJ%20Judges%20re%20COVID-19%20032020.pdf?ver=2020-0320-115517-333 (“Because of the high risk of transmittal of COVID-19, not only to prisoners within correctional facilities but staff and defense attorneys as well, we ask that you review your jail rosters and release, without bond, as many prisoners as you are able, especially those being held for nonviolent offenses. . . . Due to the confines of [correctional] facilities, it will be virtually impossible to contain the spread of the virus.”). Indeed, at least one court has ordered the release on bail of a non-citizen in immigration detention on the ground that detention conditions have been rendered unsafe by COVID-19. Calderon Jimenez v. Wolf, No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020), ECF No. 507. Addressing the situation in New Jersey specifically, the New Jersey Supreme Court has held that “reduction of county jail populations,
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under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19” in light of “the profound risk posed to people in correctional facilities arising from the spread of COVID-19,” and has ordered the release of many individuals serving sentences in New Jersey county jails. In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020).
Courts have also recognized that health risk to be particularly acute—and of constitutional significance—for inmates who are elderly or have underlying illnesses. See United States v. Martin, No. 19 Cr. 140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). At least one court has ordered the release on bail of an inmate facing extradition on the basis of the risk to his health the pandemic poses. Matter of Extradition of Toledo Manrique, No. 19 MJ 71055, 2020 WL 1307109, at *1 (N.D. Cal. Mar. 19, 2020) (“These are extraordinary times. The novel coronavirus that began in Wuhan, China, is now a pandemic. The nine counties in the San Francisco Bay Area have imposed shelter-in-place orders in an effort to slow the spread of the contagion. This Court has temporarily halted jury trials, even in criminal cases, and barred the public from courthouses. Against this background, Alejandro Toledo has moved for release, arguing that at 74 years old he is at risk of serious illness or death if he remains in custody. The Court is persuaded. The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”).
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The risk that Petitioners will face a severe, and quite possibly fatal, infection if they remain in immigration detention constitutes irreparable harm warranting a TRO. See Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (upholding finding of irreparable harm “premised . . . upon [the district court’s] finding that [plaintiff] was subject to risk of injury, infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services . . . certainly constitutes irreparable harm.”).
2. Constitutional Violations Second, Petitioners have also shown irreparable harm because, as discussed below, they face a violation of their constitutional rights. In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes irreparable harm. See, e.g., Connecticut Dept. of Environmental Protection 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)); Statharos v. New York City Taxi & Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of success on the merits of a constitutional violation is not necessary) (emphasis in original); Sajous v. Decker, No. 18 Civ. 2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2018) (finding that immigration detainee established irreparable harm by alleging that prolonged immigration detention violated his constitutional due process rights). The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent the TRO.
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B. Likelihood of Success on the Merits The Court concludes that Petitioners have met their burden of showing a likelihood of success on the merits. Petitioners argue that their continued confinement in ICE detention centers where COVID-19 is present and without adequate protection for their health violates their due process rights. TRO at 8. The Court agrees. The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). An application for habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate’s “transfer while seriously ill” where that transfer posed a risk of fatal heart failure). Immigration detainees can establish a due process violation for unconstitutional conditions of confinement by showing that a government official “knew, or should have known” of a condition that “posed an excessive risk to health,” and failed to take appropriate action. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (“Deliberate indifference . . . can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to the plaintiff’s health or safety.” (internal quotation marks,
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citation, and alterations omitted)). The risk of contracting COVID-19 in tightly-confined spaces, especially jails, is now exceedingly obvious.2 It can no longer be denied that Petitioners, who suffer from underlying illnesses, are caught in the midst of a rapidly-unfolding public health crisis. The Supreme Court has recognized that government authorities may be deemed “deliberately indifferent to an inmate’s current health problems” where authorities “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,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Petitioners need not demonstrate that “they actually suffered from serious injuries” to show a due process violation. Darnell, 849 F.3d at 31; see Helling, 509 U.S. at 33. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to their future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted).
Respondents have exhibited, and continue to exhibit, deliberate indifference to Petitioners’ medical needs. The spread of COVID-19 is measured in a matter of a single day—not weeks, months, or years—and Respondents appear to ignore this condition of confinement that will likely cause imminent, life-threatening illness. At oral argument, Respondents represented that ICE and the detention facilities in which Petitioners are housed are taking certain measures to prevent the spread of virus: screening detainees upon intake for risk factors, isolating detainees
2 Other courts have recognized of the heightened risk to detainees in contracting COVID-19. See, e.g., XochihuaJaimes v. Barr, 18-71460, Doc. No. 53 (9th Cir. Mar. 23, 2020) (unpublished) (“In light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers, the court sua sponte orders that Petitioner be immediately released from detention . . . .”); Stephens, 2020 WL 1295155, at *2 (ordering “conditions of 24-hour home incarceration and electronic location monitoring”); Chris Villani, Releasing ICE Detainee, Judge Says Jail No Safer Than Court, Law360, March 25, 2020 (“We are living in the midst of a coronavirus pandemic, some infected people die, not all, but some infected people die,” U.S. District Judge Wolf said. “Being in a jail enhances risk. Social distancing is difficult or impossible, washing hands repeatedly may be difficult. There is a genuine risk this will spread throughout the jail.”).
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who report symptoms, conducting video court appearances with only one detainee in the room at a time, providing soap and hand sanitizer to inmates, and increasing the frequency and intensity of cleaning jail facilities.
These measures are patently insufficient to protect Petitioners. At today’s hearing, Respondents could not represent that the detention facilities were in a position to allow inmates to remain six feet apart from one another, as recommended by the CDC. See How to Protect Yourself, CENTERS FOR DISEASE CONTROL (Mar. 18, 2020), https://www.cdc.gov/coronavirus/ 2019-ncov/prepare/prevention.html. Nor could Respondents provide the Court with any information about steps taken to protect high-risk detainees like Petitioners. And though Respondents represented that the detention facilities are below their full capacity, the appropriate capacity of a jail during a pandemic obviously differs enormously from its appropriate capacity under ordinary circumstances. Confining vulnerable individuals such as Petitioners without enforcement of appropriate social distancing and without specific measures to protect their delicate health “pose[s] an unreasonable risk of serious damage to [their] future health,” Phelps, 308 F.3d at 185 (internal quotation marks and citation omitted), and demonstrates deliberate indifference.
The Court holds, therefore, that Petitioners are likely to succeed on the merits of their due process claim that Respondents knew or should have known that Petitioners’ conditions of confinement pose excessive risks to their health.3
C. Balance of Equities and Public Interest The equities and public interest weigh heavily in Petitioners’ favor. First, Petitioners face irreparable harm, to their constitutional rights and to their health.
3 The Court does not reach Petitioners’ additional argument that they are likely to succeed on the merits of the claim that their due process rights were violated because their current conditions of confinement are punitive. TRO at 8–9.
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Second, the potential harm to Respondents is limited. At today’s hearing, Respondents were unable to identify a single specific reason for Petitioners’ continued detention. And the Court finds that there is none. Petitioners’ counsel committed to ensuring the continued appearance of Petitioners at immigration hearings. And, of course, Petitioners’ failure to appear at those hearings would carry grave consequences for their respective cases. The Court finds that those incentives are sufficient to protect whatever interest Respondents may have in ensuring that Petitioners appear at future hearings and remain subject to the immigration laws.
At oral argument, Respondents raised the fact that Petitioners Martinez and Pena are currently mandatorily detained pursuant to 18 U.S.C. § 1226(c).4 However, courts have the authority to order those detained in violation of their due process rights released, notwithstanding § 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases). Thus, Respondents have failed to justify Petitioners’ continued detention in unsafe conditions.
Finally, the public interest favors Petitioners’ release. Petitioners are confined for civil violations of the immigration laws. In the highly unusual circumstances posed by the COVID-19 crisis, the continued detention of aging or ill civil detainees does not serve the public’s interest. See Declaration of Dr. Homer Venters ¶ 12, Fraihat v. U.S. Imm. and Customs Enforcement, 5:19 Civ. 1546, ECF No. 81-11 (C.D. Cal. Mar. 24, 2020) (opining that “the design and operation of detention settings promotes the spread of communicable diseases such as COVID19”); Declaration of Dr. Carlos Franco-Paredes, id. at ECF No. 81-12 at 1 (“Immigration detention centers in the U.S. are tinderboxes for the transmission of highly transmissible infectious pathogens including the SARS-CoV-2, which causes COVID-19. Given the large population density of immigration detention centers and the ease of transmission of this viral
4 As represented by Petitioners’ counsel, Martinez’s § 1226(c) detention was triggered by his conviction for controlled substances trafficking in 2014, an offense for which he served no term of imprisonment. Pena’s § 1226(c) detention was triggered by misdemeanor marijuana convictions from 2002.
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pathogen, the attack rate inside these centers will take exponential proportions, consuming significant medical and financial resources.”); Urgent action needed to prevent COVID-19 “rampaging through places of detention” – Bachelet, UNHCR (Mar. 25, 2020), https://www.ohchr.org/en/NewsEvents/Pages/ DisplayNews.aspx?NewsID=25745&LangID=e (United Nations High Commissioners for Human Rights urging that detention of people in jails “should be a measure of last resort, particularly during this crisis”). To the contrary, public health and safety are served best by rapidly decreasing the number of individuals detained in confined, unsafe conditions. See, e.g., 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”).
CONCLUSION For the reasons stated above, the TRO is GRANTED. Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities are ORDERED to immediately release Petitioners today on their own recognizance without fail. Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. The TRO will expire on April 9, 2020, at 6:30 p.m. No later than April 2, 2020, at 12:00 p.m., Respondents must show cause why the TRO should not be converted to a preliminary injunction. Petitioners may file a response no later than April 7, 2020, at 12:00 p.m. SO ORDERED. Dated: March 26, 2020, at 6:30 p.m. New York, New York
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capacity as Acting Secretary of the U.S. Department of Homeland Security, from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. TRO Mem. at 1, ECF No. 6.
The Court granted the TRO, and directed Respondents to show cause why it should not be converted into a preliminary injunction. TRO at 15, ECF No. 11. For the reasons stated below, Petitioners’ request for a preliminary injunction is GRANTED as follows: (1) Petitioners shall remain released, subject to conditions to be set by the Court, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes unless Respondents first obtain the Court’s permission.
BACKGROUND Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. Petition ¶¶ 5–14. They were housed in New Jersey county jails where either detainees or staff have tested positive for COVID-19. TRO at 6. Specifically, Basank, Benitez Pineda, and Mazariegos were detained at the Hudson County Correctional Facility (“Hudson County Jail”). Id. ¶¶ 5, 7, 11. Barrera Carrerro, Hernandez Balbuena, Legall, Martinez, and Menendez were detained at the Bergen County Correctional Facility (“Bergen County Jail”). Id. ¶¶ 6, 8, 9, 10, 12. Pena and Picazo Nicolas were detained at the Essex County Correctional Facility (“Essex County Jail”). Id. ¶¶ 13–14. Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of serious illness or death if exposed to COVID-19. Basank is 54 years old and has a lengthy history of smoking. Id. ¶ 5. Barrera Carrerro, age 39, suffers from underlying health conditions, including obesity, respiratory problems, a history of gastrointestinal problems, and colorectal bleeding. Id. ¶ 6. Benitez Pineda is 44, with pulmonary issues and a history of hospitalization
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for severe pneumonia. Id. ¶ 7. Hernandez Balbuena has diabetes and diabetes-related complications. Id. ¶ 8. Legall, age 33, suffers from respiratory problems, including asthma. Id. ¶ 9. At 56, Martinez, has severe heart disease, including a history of hospitalization for congestive heart failure, severe aortic valvular insufficiency, and acute systolic failure, requiring immediate heart valve replacement surgery. Id. ¶ 10. Mazariegos is 44, and suffers from high blood pressure and pre-diabetes. Id. ¶ 11. Menendez, age 31, suffers from chronic asthma. Id. ¶ 12. At 36, Pena is asthmatic and has chronic obstructive pulmonary disease (“COPD”), which require inhalers and other medical treatment. Id. ¶ 13. Picazo Nicolas is 40 and suffers from Type II diabetes and morbid obesity. Id. ¶ 14.
Petitioners moved for a TRO on March 25, 2020. ECF No. 6. The Court held a telephonic hearing on March 26, 2020, see ECF No. 7, and granted the motion that day, ECF No. 11. The Court extended the TRO for good cause for an additional fourteen days in order to consider the parties’ submissions on the question of whether the TRO should be converted to a preliminary injunction. ECF No. 28.1 The Court now addresses, in turn, Respondents’ argument that the action should be severed into ten individual proceedings, the jurisdictional question of mootness, and the merits of Petitioners’ request for a preliminary injunction.
DISCUSSION I. Severance
Respondents argue that the petition should be severed into separate habeas actions for each Petitioner. Resp. Opp. at 19–22, ECF No. 17. The Court disagrees.
First, severance is inappropriate given the equities and the time the Court has already
1 The Court concludes that the record is sufficient to resolve the matter without an evidentiary hearing. See Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir. 1998) (“An evidentiary hearing is not required when the relevant facts either are not in dispute . . . or when the disputed facts are amenable to complete resolution on a paper record.” (citations omitted)).
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devoted to considering the parties’ submissions. See Coronel v. Decker, 20 Civ. 2472, 2020 WL 1487274, at *2 (S.D.N.Y. Mar. 27, 2020) (“Considerations of judicial economy—the [c]ourt has already read and digested the record and heard lengthy oral argument on this motion—and the urgent need to timely decide [p]etitioners’ motion for a temporary restraining order in light of the immediate risk to the health of the [p]etitioners counsel against severance at this juncture.”); see also id., ECF No. 35 at 3 (S.D.N.Y. Apr. 1, 2020) (denying without prejudice the respondents’ motion to sever the joint petition after receiving further briefing).
Second, a single habeas action is merited because this matter is “uncluttered by subsidiary issues.” United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125–26 (2d Cir. 1974). In Sero, the Second Circuit considered a proposed habeas corpus class action brought by young adult misdemeanants (ages 16 to 21), on behalf of themselves and all others similarly situated, who were serving a reformatory sentence in excess of the adult penalty for the same misdemeanor. Id. at 1119. The court of appeals held that a “multi-party proceeding similar to the class action authorized by [Rule 23 of the Federal Rules] of Civil Procedure” was permissible, because the judiciary has the inherent authority under the All Writs Act, 28 U.S.C. § 1651, to fashion “expeditious methods of procedure in a specific case.” Id. at 1125 (citing Harris v. Nelson, 394 U.S. 286, 294 (1969)); see also Bertrand v. Sava, 684 F.2d 204, 219 (2d Cir. 1982) (finding no error in the district court’s decision to “certify a [habeas] class of ‘all Haitian aliens transferred from [an Immigration and Naturalization Service facility] . . . , who have requested political asylum and parole, but have remained in respondent’s custody’” (citation omitted)).
Here, the health risks posed by COVID-19 and the constitutional claims presented do not turn on facts unique to each Petitioner beyond their having preexisting conditions that make them
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vulnerable to the virus. Cf. Bob v. Decker, No. 19 Civ. 8226, ECF No. 4 at 3 (S.D.N.Y. Oct. 15, 2019) (requiring three pro se petitioners to proceed in three separate habeas actions, because the petitioners each alleged that they were denied a different type of medical care). Rather, Petitioners raise almost identical questions of law and fact, including whether Respondents are adequately protecting Petitioners from contracting COVID-19, whether Respondents are deliberately indifferent to Petitioners’ medical needs, and whether release from detention is justified under these circumstances. See Petition.
Third, Petitioners allege shared harms, including the alleged systemic failure of Respondents to identify and protect individuals in immigration detention at the Hudson, Bergen, and Essex County Jails who are at high risk of complications from COVID-19. The extraordinary circumstance of the COVID-19 crisis warrants a multi-party habeas petition permitting expeditious resolution of the claims before the Court.
The Court concludes, therefore, that considerations of “judicial economy and fairness argue persuasively for the construction of a procedure” such as this multi-party habeas action, where Petitioners “shar[e] certain complaints about the legality” of their confinement. Bertrand v. Sava, 535 F. Supp. 1020, 1024 (S.D.N.Y. 1982) (citations omitted), rev’d on other grounds, 684 F.2d 204 (2d Cir. 1982); see also id. at 1024–25 (“Such initiative and flexibility are essential to modern use of the writ [of habeas corpus] in order to cut through barriers of form and insure that miscarriages of justice are corrected.”).
Accordingly, Respondents’ request to sever the action into ten individual habeas petitions is DENIED.
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II. Mootness Prior to the Court’s issuance of the TRO, Respondents had decided to voluntarily release
five of the original Petitioners: Basank, Benitez Pineda, Hernandez Balbuena, Legall, and Menendez. Resp. Opp. at 18; see also Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1481503, at *1 n.1 (S.D.N.Y. Mar. 26, 2020) (noting that the Court had not yet been notified that those Petitioners had in fact been released). “Under Article III of the U.S. Constitution, when a case becomes moot, the federal courts lack subject matter jurisdiction over the action.” Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013) (internal quotation marks, citation, and alterations omitted). “Under 28 U.S.C. § 2241, the habeas statute under which 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). But the Second Circuit has explained that “[f]ollowing his release from ICE custody, [a petitioner] is no longer suffering an ‘actual injury,’” and the case is moot, at least where the petitioner “has not shown a ‘reasonable expectation’ that he will be subjected to the same action again.” Leybinsky v. U.S. Immigration and Customs Enforcement, 553 F. App’x 108, 109 (2d Cir. 2014) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998); Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990)); see also Diop v. Sessions, No. 18 Civ. 8245, 2019 WL 1894387, at *2 (S.D.N.Y. Mar. 20, 2019) (“[W]here a petitioner . . . is no longer in custody the petition no longer presents a live controversy and is moot, warranting dismissal for lack of subject matter jurisdiction.” (internal quotation marks, citation, and alterations omitted)).
Though it is possible that Respondents might seek to rearrest the five Petitioners who were voluntarily released, Petitioners have not demonstrated a “reasonable expectation” that they would be subject to rearrest while the dangerous conditions in ICE detention facilities persist.
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And if Respondents did seek to detain them before the threat of infection had passed, a renewed habeas petition would doubtless be successful. Because those Petitioners were voluntarily released from “ICE custody, the[ir] petition[s] ha[ve] been rendered moot divesting the Court of subject matter jurisdiction.” Diop, 2019 WL 1894387, at *2.
Accordingly, Petitioners’ motion for a preliminary injunction is DENIED as moot as to Basank, Benitez Pineda, Hernandez Balbuena, Legall, and Menendez.
However, the Court does not conclude that the action is moot as to the remaining five Petitioners: Barrera Carrero, Martinez, Mazariegos, Pena, and Picazo Nicolas. Given Respondents’ repeated emphasis on the statutory and regulatory regime that, in its regular course, would allow Petitioners to be “at any time . . . arrested and taken into custody,” it is clear that a live case or controversy exists as to the remaining Petitioners. Resp. Opp. at 23–24. Unlike in Leybinsky, where redetention was only possible if the former ICE detainee violated the conditions of his release, 533 F. App’x at 109–10, here, Respondents assert both a broad power and the specific intention to take into custody the five Petitioners whom ICE did not voluntarily release. See Resp. Opp. at 24 (opposing a preliminary injunction that would continue to “enjoin the government not only from [the] detention, but [the] reapprehension” of Petitioners, and relying on statutes and regulations that Respondents assert permit the rearrest of Petitioners “at any time”). But for the Court’s order restraining Respondents from rearresting Petitioners, Respondents would presumably seek to detain Petitioners anew. Therefore, a live case or controversy continues to exist as the Court considers whether to convert its TRO into a preliminary injunction—a step Respondents vigorously oppose. See generally Resp. Opp.
Accordingly, the Court turns to the claims of the remaining Petitioners.2
2 For the remainder of this opinion, the term “Petitioners” encompasses only Barrera Carrero, Martinez, Mazariegos, Pena, and Picazo Nicolas.
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III. Preliminary Injunction A. Legal Standard
A preliminary injunction sought against government action taken pursuant to a statute or regulatory scheme requires that “the moving party . . . demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction.” Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016). “A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citation omitted).
B. Analysis 1. Irreparable Harm
To establish irreparable harm, Petitioners “must demonstrate that absent a preliminary injunction 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.” Id. (internal quotation marks and citation omitted). Petitioners have shown irreparable injury by establishing the risk of harm to their health and constitutional rights. See Barbecho v. Decker, No. 20 Civ. 2821, 2020 WL 1876328, at *6 (S.D.N.Y. Apr. 15, 2020) (“[I]rreparable harm exists where, as here, petitioners face imminent risk to their health, safety, and lives.” (internal quotation marks and citation omitted)). The Court addresses each harm in turn.
a. Risk of Serious Illness or Death Based on the record before it, the Court concludes that Petitioners would face a risk of serious illness or death if returned to civil immigration detention at the Hudson, Bergen, and
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Essex County Jails. i. Hudson, Bergen, and Essex County Jails
As of the date of this opinion, there are more than 2.6 million confirmed cases of COVID-19 worldwide and over 854,000 cases in the United States. Center for Systems Science and Engineering at Johns Hopkins University, Coronavirus COVID-19 Global Cases, Coronavirus Resource Center (Apr. 23, 2020), https://coronavirus.jhu.edu/map.html. Some 186,640 people have died from the disease worldwide; at least 15,074 have died in New York City, all in the course of a few weeks. Id. New Jersey also has a significant outbreak of the virus, with 606 deaths in Hudson County, 907 deaths in Bergen County, and 932 deaths in Essex County. New Jersey Dep’t of Health, New Jersey COVID-19 Dashboard, Official Site of the State of New Jersey (Apr. 23, 2020), https://www.nj.gov/health/cd/topics/covid2019_dashboard. shtml (noting 99,989 confirmed cases and 5,368 deaths statewide).
The nature of detention facilities makes exposure and spread of the virus particularly harmful. Numerous courts have recognized that “individuals in carceral settings are at a significantly higher risk of spreading infectious diseases.” United States v. Gross, No. 15 Cr. 769, 2020 WL 1673244, at *1 (S.D.N.Y. Apr. 6, 2020) (internal quotation marks and alterations omitted) (collecting cases). Jaimie Meyer, M.D., M.S., who has worked extensively on infectious disease treatment and prevention in the context of jails and prisons, submitted a declaration in this district noting that the risk of COVID-19 to people held in New York-area detention centers, including the Hudson, Bergen, and Essex County Jails, “is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected.” Meyer Decl. ¶ 7, Velesaca v. Wolf, 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42; see also Cases Surge in an Ohio Prison, The New York Times (Apr. 20,
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2020), https://www.nytimes.com/2020/04/20/us/coronavirus-live-news.html (“Despite warnings from health officials and attempts to release some inmates to avoid outbreaks, jails, prisons and detention centers have emerged as major coronavirus spreaders. As of [April 20, 2020], four of the 10 largest-known sources of infection in the United States were correctional facilities . . . .”).
The three counties where the jails are located—Hudson, Bergen, and Essex Counties— contain over one-third of the COVID-19 cases in New Jersey. Petition ¶ 36; New Jersey Dep’t of Health, New Jersey COVID-19 Dashboard, Official Site of the State of New Jersey (Apr. 23, 2020), https://www.nj.gov/health/cd/topics/covid2019_dashboard.shtml. The jails are no exceptions. Each of the jails where a Petitioner was housed has reported confirmed cases of COVID-19. Petition ¶ 41. This includes, at the time of the Petition’s filing, two inmates in the Hudson County Jail; one detainee and a correctional officer at the Bergen County Jail; and a “superior officer” at the Essex County Jail. Id. Since then, the numbers of positive cases have only increased. See Pet. Reply at 5 n.19, ECF No. 26 (citing newspaper reporting as of April 6, 2020 at 7:00 p.m. of “two ICE detainees, one pretrial detainee, and 16 staff infected at the Bergen County Jail; two ICE detainees, 20 pretrial detainees, and 41 staff infected at the Hudson County Jail; and two ICE detainees and 16 staff infected at the Essex County Jail”).
Indeed, the Hudson County Jail faces rising numbers of COVID-19 cases. See John Heinis, County Jail COVID-19 Update: 4th Worker Dies, 26 in Custody Tested Positive, 87 COs Self-Isolating, Hudson County View (Apr. 7, 2020), https://hudsoncountyview.com/county-jailcovid-19-update-4th-worker-dies-26-in-custody-tested-positive-87-cos-self-isolating (reporting that “[t]he Hudson County Jail has infection rates at nearly ten times that of the state as a whole”; that seven out of a total ten ICE detainees tested at the Hudson County Jail were confirmed positive for COVID-19, and that a fourth worker at the facility died on April 6, 2020 from the
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virus, making him “the third civilian employee of the jail to pass in a span of about 48 hours”). With regard to the Bergen County Jail, another court in this district observed that the
“imminence” of the risk to detainees’ health “is underscored by the fact that since March 24, 2020”—and as of April 14, 2020—“the number of confirmed cases of COVID-19 among detainees, inmates, and staff at the Bergen County Jail has increased from only one to nearly 20, including 16 Bergen County Corrections Police Officers who work at the [j]ail.” Barbecho, 2020 WL 1876328, at *6 (citations omitted).
This Court also recently concluded that vulnerable detainees at the Essex County Jail are at risk of serious illness or death, notwithstanding the additional measures taken at the facility. Valenzuela Arias v. Decker, No. 20 Civ. 2802, 2020 WL 1847986, at *4 (S.D.N.Y. Apr. 10, 2020) (“Though ICE and the Essex County Jail have taken some steps to mitigate the spread of COVID-19, the risk of Petitioners’ infection is still very real.”). As of April 3, 2020, 78 detainees and inmates were in quarantine at the Essex County Jail. Pet. Reply at 6 (citation omitted).
A number of courts in this district and elsewhere have recognized the threat that COVID19 poses to individuals held in jails and detention facilities, and the Hudson, Bergen, and Essex County Jails are, unfortunately, no exception. See, e.g., Coronel, 2020 WL 1487274, at *3 (“[B]eing in immigration detention places [p]etitioners at significantly higher risk of contracting COVID-19. Individuals in carceral settings are at a ‘significantly higher’ risk of spreading infectious diseases.” (citation omitted)); United States v. Stephens, No. 15 Cr. 95, 2020 WL 1295155, at *2 (S.D.N.Y. Mar. 19, 2020) (“[I]nmates may be at a heightened risk of contracting COVID-19 should an outbreak develop.”) (collecting authorities); In the Matter of the Request to Commute or Suspend County Jail Sentences, Case No. 84230 (N.J. Mar. 22, 2020) (holding that
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“reduction of county jail populations, under appropriate conditions, is in the public interest to mitigate risks imposed by COVID-19” in light of “the profound risk posed to people in correctional facilities arising from the spread of COVID-19”).
ii. Petitioners’ Medical Conditions Courts have recognized the health risk posed by COVID-19 to be particularly acute for detainees who have underlying illnesses. See Jones v. Wolf, No. 20 Civ. 361, 2020 WL 1643857, at *13 (W.D.N.Y. Apr. 2, 2020) (“[P]etitioners with the CDC-identified vulnerabilities face a grave, irreparable risk to their health and safety if they remain confined under current conditions” in a facility where COVID-19 is spreading); United States v. Martin, No. 19 Cr. 14013, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“[T]he Due Process Clauses of the Fifth or Fourteenth Amendments, for federal and state pretrial detainees, respectively, may well be implicated if defendants awaiting trial can demonstrate that they are being subjected to conditions of confinement that would subject them to exposure to serious (potentially fatal, if the detainee is elderly and with underlying medical complications) illness.”). The Court takes judicial notice that COVID-19 causes severe medical complications and has increased lethality amongst people of advanced age, and those with underlying health problems, or both. People Who Are at Higher Risk for Severe Illness, Centers for Disease Control and Prevention (Apr. 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/specificgroups/high-risk-complications.html (“[O]lder adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19.”); Information for Healthcare Professionals: COVID-19 and Underlying Conditions, Centers for Disease Control and Prevention (Apr. 6, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/underlying-conditions.html (listing, among other medical diagnoses, “moderate to
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severe asthma,” “people who have serious heart conditions,” “severe obesity,” and “diabetes” as
conditions that trigger higher risk of severe illness from COVID-19); see Fed. R. Evid. 201(b)
(“The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is
generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot be reasonably questioned.”); Brickey v.
Superintendent, Franklin Corr. Facility, No. 10 Civ. 085, 2011 WL 868148, at *2 n.3 (N.D.N.Y.
Feb. 17, 2011) (taking judicial notice of the meaning and symptoms of sciatica), report and
recommendation adopted, 2011 WL 868087 (N.D.N.Y. Mar. 10, 2011); Lin v. Metro. Life Ins.
Co., No. 07 Civ. 03218, 2010 WL 668817, at *1 (S.D.N.Y. Feb. 25, 2010) (“In its decision, the
Court took judicial notice of certain medical background information about Hepatitis B.”).
Petitioners are at particular risk for serious illness or death, because their preexisting
medical conditions either make them more vulnerable to contracting COVID-19, or more likely
to develop serious complications due to COVID-19, or both. Each Petitioner has underlying
illnesses, including asthma, diabetes, heart disease, hypertension, obesity, and respiratory
problems such as COPD. Petition ¶¶ 5–14.3
The risk that Petitioners will face a severe, and quite possibly fatal, infection if they are
returned to immigration detention constitutes irreparable harm warranting a preliminary
3 Respondents do not dispute that Barrera Carrerro, Martinez, Pena, and Picazo Nicolas have underlying illnesses qualifying them as high-risk based on CDC guidelines. See generally Resp. Opp. Respondents, however, “note that Petitioner Mazariegos’s alleged medical conditions, high blood pressure and pre-diabetes, do not appear to qualify him as high risk.” Resp. Opp. at 21 n.6. The Court disagrees. The CDC has recognized that hypertension—i.e., high blood pressure—is a condition that puts an individual at “higher risk for severe disease or death from COVID19.” Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020, Centers for Disease Control and Prevention (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6913e2 htm. Accordingly, though Respondents make this passing observation in a footnote, and have not argued outright that Mazariegos’ high blood pressure is insufficient to warrant relief, the Court rejects any implication of the kind. The CDC has cautioned that “the potentially higher risk for more severe disease from COVID-19 associated with the presence of underlying conditions”—including hypertension— “highlight the importance of COVID-19 prevention in persons with underlying conditions.” Id.; see also In re Crude Oil Commodity Litig., No. 06 Civ. 6677, 2007 WL 2589482, at *3 (S.D.N.Y. Sept. 8, 2007) (“Arguments which appear in footnotes are generally deemed to have been waived.”).
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injunction. See Barbecho, 2020 WL 1876328, at *6 (concluding that petitioners “face a risk of severe, irreparable harm—including death—if they contract COVID-19” and met burden of showing irreparable harm); Valenzuela Arias, 2020 WL 1847986, at *5 (holding that immigration detainees at the Essex County Jail faced irreparable harm because of the threat of COVID-19); Coronel, 2020 WL 1487274, at *3 (“Due to their serious underlying medical conditions, all Petitioners face a risk of severe, irreparable harm if they contract COVID-19.”); see also Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) (upholding finding of irreparable injury “premised . . . upon [the district court’s] finding that [plaintiff] was subject to risk of injury, infection, and humiliation”); Mayer v. Wing, 922 F. Supp. 902, 909 (S.D.N.Y. 1996) (“[T]he deprivation of life-sustaining medical services . . . certainly constitutes irreparable harm.”).
b. Constitutional Violations Second, Petitioners have also shown irreparable injury because they allege a violation of their constitutional rights. In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes 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 citation omitted)); Statharos v. New York City Taxi & Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of success on the merits of a constitutional violation is not necessary); Sajous v. Decker, No. 18 Civ. 2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23,
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2018) (finding that immigration detainee established irreparable injury by alleging that prolonged immigration detention violated his constitutional due process rights).
The Court finds, therefore, that Petitioners have established the threat of irreparable harm absent the preliminary injunction.
2. Likelihood of Success on the Merits Petitioners argue that a return to confinement in the Hudson, Bergen, or Essex County Jails would violate their due process rights. Pet. Reply at 11. The Court agrees. Notwithstanding the steps that have been taken by those facilities since the Court issued its TRO, Petitioners have met their burden of showing a likelihood of success on the merits.
a. Legal Standard The Due Process Clause of the Fifth Amendment to the United States Constitution forbids the government from depriving a person of life, liberty, or property without due process of law. The protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). An application for habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (allowing a § 2241 application to challenge an inmate’s “transfer while seriously ill” where that transfer posed a risk of fatal heart failure). Immigration detainees can establish a substantive due process violation for unmet medical needs by showing that a government official “knew, or should have known” of a condition that “posed an excessive risk to health,” and failed to take appropriate action. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). “Deliberate indifference” to serious medical needs
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“can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendantofficial knew, or should have known, that the condition posed an excessive risk to the plaintiff’s health or safety.” Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (internal quotation marks, citation, and alterations omitted).
Additionally, the Supreme Court has recognized that government authorities may be deemed “deliberately indifferent to an inmate’s current health problems” where they “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,” including “exposure of inmates to a serious, communicable disease,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 33 (1993). Petitioners need not demonstrate that “they actually suffered from serious injuries” to show a due process violation. Darnell, 849 F.3d at 31; see Helling, 509 U.S. at 33. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to their future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35 (alteration omitted)).
b. Analysis Respondents argue that ICE has set in motion various steps to improve health and sanitation at the Hudson, Bergen, and Essex County Jails, and Respondents have submitted declarations of the facilities’ wardens attesting to the actions taken. See ECF Nos. 17, 19, 21, 23, 24, 29. Respondents contend that these measures dispel any notion of indifference, much less deliberate indifference. Resp. Opp. at 15–18. The standard for deliberate indifference, however, is not one of malice. Rather, Petitioners may establish deliberate indifference through intentional
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denial of care (the subjective standard), or by showing that Respondents “recklessly failed to act
with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even
though the [Respondents] knew, or should have known, that the condition posed an excessive
risk to [the Petitioners’] health or safety” (the objective standard). Charles, 925 F.3d at 87.4
Based on the record before it, the Court concludes that the objective standard for deliberate
indifference has been met.5
First, the Court finds that Respondents have not implemented specific measures to
identify, protect, and treat inmates who are at a heightened risk of contracting or suffering grave
complications from COVID-19. For example, Respondents do not mention processes for
screening, shielding from infection, or considering for release high-risk individuals. See
generally ECF Nos. 17, 18, 19, 23, 24, 29. Protection of detainees with underlying health
conditions appears to be limited to “daily monitoring,” with a “plan to remove the inmates from
the rest of the population should the need arise.” Edwards Decl. ¶ 12(g)(4), ECF No. 29-1; Ortiz
Decl. ¶ 15(f), ECF No. 29-2. It is not clear, however, what “daily monitoring” entails. For
4 Respondents repeatedly mischaracterize Charles to imply that the Court may find deliberate indifference only if, in addition to finding that Respondents have objectively failed to act with reasonable care, the Court separately finds that their actions “shock[] the contemporary conscience.” Resp. Opp. at 1, 16. That is not the law. Instead, the Second Circuit has explicitly stated that, with respect to a claim of unmet medical needs by detainees, once deliberate indifference is shown, a “court need not . . . conduct a separate analysis, over and above the deliberate indifference analysis, of whether the state’s conduct ‘shocks the conscience.’” Charles, 925 F.3d at 86; see id. n.11 (clarifying that the court of appeals has applied “separate ‘shocks the conscience’ analysis in cases that do not involve the medical needs of those the state has taken into custody”). In other words, the failure to take objectively necessary measures to protect vulnerable inmates from a deadly pandemic is per se conscience-shocking. See id. at 86 (“The Supreme Court has held that the point of conscience shocking is reached when government actors are deliberately indifferent to the medical needs of pretrial detainees.”). 5 The Court concludes that Petitioners have established a likelihood of success on the merits on their substantive due process claim, both articulated as a conditions of confinement claim, see Helling, 509 U.S. at 33 (discussing a conditions of confinement claim and raising “exposure of inmates to a serious, communicable disease” as an example), as well as an unmet medical needs claim, see Charles, 925 F.3d at 87 (discussing deliberate indifference to medical needs). Indeed, where, as here, a communicable disease renders the general conditions of confinement dangerous to Petitioners’ health, and meeting Petitioners’ medical needs requires that Respondents take specific measures to prevent their infection, the conditions of confinement and unmet medical needs claims essentially merge.
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vulnerable detainees like Petitioners, monitoring them for signs of infection is too little, too late. The best, and perhaps only, way to protect them is to prevent infection in the first place. Respondents have not taken meaningful steps to do so.
Second, with respect to general conditions of confinement, the evidence submitted by Respondents does not indicate that social distancing is being practiced in various daily situations inside the Hudson, Bergen, and Essex County Jails. See How to Protect Yourself & Others, Centers for Disease Control and Prevention (Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html (recommending maintaining at least six feet of distance from other persons at all times and noting that “keeping distance from others is especially important for people who are at higher risk of getting very sick”). Even crediting the declarations of the facilities’ wardens, who claim that social distancing is possible within the confines of a jail cell, Respondents cannot be heard to say that while asleep in bunk beds, inmates are positioned six feet apart from one another. Compare Ahrendt Decl. ¶ 6, ECF No. 29-3 (claiming that social distancing is possible in Bergen County Jail cells that measure 10 feet by 7 feet and have bunk beds, but failing to explain how cellmates can maintain a six-foot distance while asleep or when moving about the cell in order to use the toilet or stretch their legs); Ortiz Decl. ¶ 6 (claiming that “spacing in the buildings [in Essex County Jail] allow” for social distancing, but failing to address whether bunk beds in dorms permit social distancing); Edwards Decl. ¶ 11 (claiming that Hudson County Jail permits detainees to practice social distancing “outside of their cell,” but failing to address whether detainees can maintain social distancing within cells), with Picasso Decl. ¶ 6, ECF No. 26-3 (noting that detainees in Essex County Jail sleep “very close together—two people in a small room with bunk beds”); Lituma Marca Decl. ¶ 6, ECF No. 26-4 (describing close proximity of
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detainees within a cell in Hudson County Jail); Legall Decl. ¶ 6, ECF No. 26-1 (describing close proximity of detainees within a cell in Bergen County Jail).
Moreover, even in the common areas, it does not appear that detainees are being required to practice social distancing, including when using the telephones. See Sanchez Decl. ¶ 14, ECF No. 26-5 (noting that he tried to stay away from other detainees but “had to use the same phone that everyone else used”); Picasso Decl. ¶¶ 4–5 (attesting that it was impossible to maintain six feet of distance in the common space); Basank Decl. ¶¶ 4, 8, ECF No. 26-6 (same); Lituma Marca Decl. ¶¶ 5, 7, 16 (stating that social distancing was not enforced); Legall ¶ 14 (describing being stressed because of her asthma and knowing she was at risk, and she “tried [her] best to stay away from others but that was not always possible” in the dorm); Alvarez Santana Decl. ¶ 4, ECF No. 26-2 (noting that detainees were not asked to, nor could they, comply with social distancing rules, such as when making phone calls).
Additionally, in these facilities, individuals exhibiting symptoms of COVID-19 often wait to receive medical attention, are not separated from cellmates, and may be returned to the general population. See Sanchez Decl. ¶¶ 7, 9; Lituma Marca Decl. ¶¶ 7–8 (describing a man in the unit who had diabetes: “He was taken to the hospital, but they brought him back the same day in the afternoon. We asked him if he had contracted the virus and he told us that a doctor had told him that he probably contracted the virus. The prison administration returned him to his cell with his cellmate . . . he looked sick. His face was pale, he looked weak, and I heard him coughing.”). Each facility also uses “cohorting” to separate possibly infected detainees, but instead of isolating each individual, they are grouped together, see Ahrendt Decl. ¶ 9(i); Edwards Decl. ¶ 17; Ortiz Decl. ¶ 20; Moon Decl. ¶ 10, a practice which risks spreading the virus to otherwise healthy inmates, and which the Centers for Disease Control and Prevention (“CDC”)
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advises should be utilized only as a last resort. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention (Apr. 18, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html (indicating that individuals should be cohorted together only if facilities are unable to accommodate individual isolation). Respondents do not claim, however, that they cohort detainees because isolation of individual inmates is not possible at the Hudson, Bergen, and Essex County Jails.
Finally, Respondents have offered no evidence indicating that testing is widely offered or used to ascertain the scope of the outbreak, in order to better contain and treat the outbreak within the facilities. See Ahrendt Decl. ¶ 15 (failing to address whether symptomatic or highrisk individuals are tested and under what circumstances, or explain whether other individuals will be tested); Edwards Decl. ¶ 15 (stating that the Hudson County Jail “uses UTM-RT to test any detainees or inmates who require testing for COVID-19,” but failing to describe the criteria for testing or the rate at which tests are performed on inmates who “require” them); Ortiz Decl. ¶¶ 4, 16(a), 17–18 (indicating that the Essex County Jail acquired 50 testing kits, but failing to explain how those kits can be used effectively to protect a jail population of close to 2,000, and conceding that “mildly symptomatic detainees” are not tested).
A number of courts in this district and beyond have held that habeas petitioners have demonstrated a likelihood of success under similar conditions. In Valenzuela Arias, this Court ordered immediate release of two individuals detained in ICE custody at the Essex County Jail. 2020 WL 1847986, at *9. In Coronel, another court in this district released seven ICE detainees at the Bergen and Essex County Jails, due to their underlying medical conditions, which include obesity, hypertension, and gastrointestinal problems. 2020 WL 1487274, at *1, *6, *10. As in
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Coronel, “ICE has not taken any action to address the particular risks COVID-19 poses to high-
risk individuals like the Petitioners here.” Id. at *4. Likewise, in Avendaño Hernandez v.
Decker, a court in this district held that an immigration detainee had established a “substantial
claim for deliberate indifference” where ICE and the county jail in which he was held had “not
taken any action to address the particular risks that COVID-19 poses to high-risk individuals,”
but rather had carried out “only generalized proactive measures to prevent detainees within
[their] care from contracting and spreading the virus.” No. 20 Civ. 1589, 2020 WL 1547459, at
*2–3 (S.D.N.Y. Mar. 31, 2020) (internal quotation marks and citation omitted).6
To be clear, the Court does not hold that the CDC’s guidelines amount to strict rules of
constitutional law that Respondents must follow in every circumstance. The Court does,
however, take the numerous ways in which Respondents’ facilities’ failure to implement basic
elements of social distancing, isolation, and protective measures for high-risk individuals to be
an overwhelming indication that the conditions of confinement are dangerous to detainees like
Petitioners, and that their specific medical needs as vulnerable individuals would go unmet in the
6 Courts in other districts have also found that ICE detainees have shown a likelihood of success on their claims that continued confinement, without adequate protection for their health, violates their due process rights. In Hope v. Doll, a court granted the immediate release of 22 immigration detainees held at facilities with reported COVID-19 cases, finding that “the protective measures in place . . . are not working.” No. 20 Civ. 562, ECF. No. 11 at 13–14 (M.D. Pa. Apr. 7, 2020). As the court explained, “[i]t now seems that our worst fears have been realized—COVID19 is spreading, and not nearly enough is being done to combat it. We cannot allow the [p]etitioners before us, all at heightened risk for severe complications from COVID-19, to bear the consequences of ICE’s inaction.” Id. at 9. A court in that same district released 13 individuals from ICE detention, who suffered from medical conditions such as high blood pressure, diabetes, asthma, and trouble breathing. Thakker v. Doll, No. 20 Civ. 480, 2020 WL 1671563, at *1, *10 (M.D. Pa. Mar. 31, 2020). In finding that the petitioners had shown a likelihood of success on the merits, the court noted that the petitioners had demonstrated that, “despite their best efforts, they cannot practice these effective preventative measures in [detention] [f]acilities.” Id. at *8. “Considering . . . the grave consequences that will result from an outbreak of COVID-19, particularly to the high-risk [p]etitioners in this case,” the court determined that it “[could not] countenance physical detention in such tightly-confined, unhygienic spaces.” Id. In Malam v. Adducci, the court released an ICE detainee, notwithstanding the precautionary measures taken by the facility, because the petitioner was “not ensured anything close to reasonable safety.” No. 20 Civ. 10829, 2020 WL 1672662, at *12 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (internal quotation marks and citation omitted). The court found that “the only reasonable response by [r]espondents is the release of [p]etitioner; any other response demonstrates a disregard of the specific, severe, and life-threatening risk to [p]etitioner from COVID19.” Id.
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Hudson, Bergen, and Essex County Jails. As another court in this district recently concluded, “policies that are ‘generally justifiable’ may still ‘amount[ ] to deliberate indifference to’ the specific and unique medical needs of particular individuals.” Barbecho, 2020 WL 1876328, at *5 (quoting Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005)); see id. (concluding that, “even the increased precautions generally taken . . . do nothing to alleviate the specific, serious, and unmet medical needs of the high-risk detainees, who require greater precautions in light of their correspondingly greater risk of severe illness if they contract COVID-19”); see also Coronel, 2020 WL 1487274, at *5 (also noting the “specific, serious, and unmet medical needs” of inmates with underlying illnesses were sufficient to establish deliberate indifference). Thus, as the Court previously concluded, “[c]onfining vulnerable individuals . . . without enforcement of requisite social distancing and without specific measures to protect their delicate health poses an unreasonable risk of serious damage to their future health, and demonstrates deliberate indifference.” Basank, 2020 WL 1481503, at *5 (internal quotation marks, citation, and alteration omitted).
The Court holds, therefore, that Petitioners are likely to succeed on the merits of their due process claim that Respondents knew or should have known that Petitioners’ conditions of confinement pose excessive risks to their health and that their specific medical needs were unmet.7
3. Balance of Equities and Public Interest The equities and public interest weigh heavily in Petitioners’ favor. Petitioners face irreparable injury—to their constitutional rights and to their health. The potential harm to Respondents is limited. Respondents still have not identified any
7 The Court does not reach Petitioners’ additional argument that they are likely to succeed on the merits of the claim that their due process rights were violated because the facilities’ conditions are punitive. TRO Mem. at 8–9.
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specific danger to the public or risk of flight that would justify returning Petitioners to
confinement in an ICE detention facility, see generally Resp. Opp. In any event, in converting
the TRO to a preliminary injunction, the Court shall impose conditions of release that will
address any such concerns.8 Respondents note that Martinez and Pena were mandatorily
detained pursuant to 18 U.S.C. § 1226(c). Resp. Opp. at 14.9 However, courts have the
authority to order those detained in violation of their due process rights released, notwithstanding
§ 1226(c). See Cabral v. Decker, 331 F. Supp. 3d 255, 259 (S.D.N.Y. 2018) (collecting cases).
As such, Respondents have failed to justify Petitioners’ detention in unsafe conditions.
Finally, the public interest favors Petitioners’ release. Petitioners are confined for civil
violations of the immigration laws. In the highly unusual circumstances posed by the COVID-19
crisis, the continued detention of aging or ill civil detainees does not serve the public’s interest.
To the contrary, public health and safety are served best by rapidly decreasing the number of
individuals held in confined, unsafe conditions. See, e.g., 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”). As another court in this district has observed, “[d]ecreasing the [ICE detention]
8 In actions brought by ICE detainees seeking habeas relief amid the COVID-19 epidemic, courts in this district, including this one, have considered the individual circumstances of the Petitioners and crafted conditions of release for those individuals. See, e.g., Valenzuela Arias, No. 20 Civ. 2802, ECF Nos. 20 and 21 (S.D.N.Y. Apr. 11, 2020) (imposing conditions, inter alia, home incarceration—the most restrictive condition of release—with telephonic and electronic monitoring, including placement of a beacon device in petitioner’s residence); see also Barbecho v. Decker, No. 20 Civ. 2821, ECF No. 26 (S.D.N.Y. Apr. 16, 2020) (prohibiting petitioner from operating a motor vehicle and imposing other conditions such as telephonic and electronic monitoring); Avendaño Hernandez v. Decker, No. 20 Civ. 1589, ECF No. 20 (S.D.N.Y. Apr. 20, 2020) (requiring ankle monitoring and weekly call-ins to ICE); Coronel v. Decker, 20 Civ. 2472, ECF No. 28 (S.D.N.Y. Mar. 27, 2020) (releasing petitioners on their own recognizance and requiring enrollment in the Intensive Supervision Appearance Program in addition to electronic monitoring). 9 As represented by Petitioners’ counsel at oral argument on Petitioners’ request for a TRO, Martinez’s § 1226(c) detention was triggered by his conviction for controlled substances trafficking in 2014, an offense for which he served no term of imprisonment. TRO Hr’g Tr. at 23:11–16, ECF No. 30; see also Resp. Opp. at 6 (noting Martinez’s 2014 narcotics offense). Likewise, Petitioners’ counsel represented that Pena’s § 1226(c) detention was triggered by misdemeanor marijuana convictions. TRO Hr’g Tr. at 23:5–7; see also Resp. Opp. at 7–8 (noting that Pena pleaded guilty to criminal sale of marijuana in the fourth degree, a misdemeanor, in 2003).
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population will . . . ‘mitigate the damage’ to both the [j]ail and the surrounding community and thereby ‘reduce the death toll.’” Barbecho, 2020 WL 1876328, at *7 (discussing the Bergen County Jail) (quoting United States v. Nkanga Nkanga, No. 18 Cr. 713, 2020 WL 1529535, at *1 (S.D.N.Y. Mar. 31, 2020)). “Indeed, reducing the size of the population in jails and prisons reduces the level of risk both for those within those facilities and for the community at large.” Id. (internal quotation marks, citation, and alterations omitted).
Accordingly, the Court holds that Petitioners have established their entitlement to a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure.10
IV. Mapp v. Reno Even if Petitioners had not met the requirements for a preliminary injunction, the Court
would release them on bail pending final resolution of their habeas claims under the Second Circuit’s decision in Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). In Mapp, the Second Circuit held “that the federal courts have inherent authority to admit to bail individuals properly within their jurisdiction” including immigration detainees petitioning for habeas relief. Id. A habeas petitioner’s “fitness for bail” depends on “whether the habeas petition raises substantial claims and whether extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.” Id. at 230 (internal quotation marks, citation and alteration omitted).
10 Respondents argue that the preliminary injunction should terminate upon the entry of a final order of removal, and not extend to the pendency of any petition for review, because “the issuance of such final orders changes the legal basis of immigration detainees’ detention, and presents different public interests in facilitating lawfully ordered removals.” Resp. Opp. at 25. It is true that a different statutory provision authorizes detention of noncitizens against whom a final order of removal has been entered, see 8 U.S.C. § 1231(a)(2), but that change in statutory authority does not alter the unconstitutionality of holding detainees in conditions where they face an unreasonable risk of being infected with a deadly virus, the irreparable harm it causes, or the rank inequity and harm to the public that would result. Perhaps, if a final order of removal were entered against a Petitioner and not stayed by a court of appeals, and Respondents sought to execute that order without subjecting the Petitioner to unconstitutional conditions along the way, a modification of the preliminary injunction would be warranted, but the Court declines to pass on a hypothetical situation.
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For the reasons already stated, Petitioners’ habeas claims are plainly substantial. Indeed, as the Court has already held, they are likely to succeed on the merits. And releasing Petitioners from confinement pending final adjudication of their petition is necessary to “make the habeas remedy effective.” Id. “Severe health issues have been the prototypical but rare case of extraordinary circumstances that justify release pending adjudication of habeas.” Coronel, 2020 WL 1487274, at *9 (collecting cases); see, e.g., Barbecho, 2020 WL 1876328, at *8 (“If these Petitioners—whose medical conditions place them at a higher risk of severe illness, or death, from COVID-19—were to remain detained, they would face a significant risk that they would contract COVID-19—the very outcome they seek to avoid. Release is therefore necessary to make the habeas remedy effective.” (internal quotation marks and citation omitted)); United States v. Nkanga, No. 18 Cr. 713, 2020 WL 1695417, at *3 (S.D.N.Y. Apr. 7, 2020) (granting bail pending resolution of a habeas claim under 28 U.S.C. § 2255 given “the defendant’s age; his multiple health issues; the nature of the defendant’s offense; [and] the precise timing of the sentencing proceeding (which occurred on March 12, 2020) in relation to the emerging COVID19 pandemic” (internal quotation marks and citation omitted)); Avendaño Hernandez, 2020 WL 1547459, at *3 (“Petitioner argues that he is being subject to unconstitutional conditions of confinement—specifically, continued risk of exposure to COVID-19—and he seeks release so that he can avoid infection. If Petitioner were to remain detained, he would face a significant risk that he would contract COVID-19—the very outcome he seeks to avoid.” (internal quotation marks, citation and alterations omitted)). Detention of Petitioners pending final adjudication of this action could cause severe illness or death—precisely the harm their petition seeks to avert. The effectiveness of the habeas remedy can only be preserved, therefore, by Petitioners’ remaining released for the duration of this matter.
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Accordingly, the Court holds, in the alternative to granting Petitioners’ motion for a preliminary injunction, that bail shall be imposed pending final resolution of their petition for habeas corpus. Their bail conditions shall be the same as those to be set under the preliminary injunction, as indicated below.
CONCLUSION For the reasons stated in this opinion, it is hereby ORDERED that Petitioners’ request for a preliminary injunction is GRANTED as follows: (1) Petitioners shall remain released, subject to conditions to be set by the Court, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes unless Respondents first obtain the Court’s permission. It is further ORDERED that the parties shall meet and confer, and propose reasonable conditions of release for each Petitioner by April 24, 2020. The preliminary injunction shall remain in effect until further order of the Court. SO ORDERED. Dated: April 23, 2020 New York, New York
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Case 1:20-cv-02518-AT Document 38 Filed 04/27/20 Page 2 of 2 6. Petitioner shall provide ICE with a working telephone number at which he may be
reached; 7. Petitioner shall not commit a federal, state, or local crime; and 8. Petitioner shall appear for any court hearings at which his presence is required, including
proceedings before an immigration judge. SO ORDERED. Dated: April 27, 2020 New York, New York
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 Case 1:20-cv-02518-AT Document 40 Filed 04/27/20 Page 1 of 1

 
 Case 1:20-cv-02518-AT Document 41 Filed 04/27/20 Page 1 of 2

Case 1:20-cv-02518-AT Document 41 Filed 04/27/20 Page 2 of 2 6. Petitioner shall provide ICE with a working telephone number at which he may be
reached; 7. Petitioner shall not commit a federal, state, or local crime; and 8. Petitioner shall appear for any court hearings at which his presence is required, including
proceedings before an immigration judge. SO ORDERED. Dated: April 27, 2020 New York, New York
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 Case 1:20-cv-02518-AT Document 42 Filed 04/27/20 Page 1 of 2

Case 1:20-cv-02518-AT Document 42 Filed 04/27/20 Page 2 of 2 7. Petitioner shall appear for any court hearings at which his presence is required, including
proceedings before an immigration judge. SO ORDERED. Dated: April 27, 2020 New York, New York
2