U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:20-cv-02206

La O Munoz et al v. Wolf et al Assigned to: Judge Vanessa D Gilmore Related Case: 4:20-cv-02149 Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 06/23/2020 Date Terminated: 07/31/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner Roger Ernesto La O Munoz

represented by Alayna Leigh Monroe Gibson Dunn Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 213-229-7000 Email: amonroe@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Marquart Gibson Dunn & Crutcher LLP 200 Park Avenue New York, NY 10166 212-351-4000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee G Durst Gibson, Dunn & Crutcher LLP 200 Park Avenue New York, NY 10166 212-351-4000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas M Parker Gibson Dunn Crutcher LLP 555 Mission St Suite 3000 San Francisco, CA 94015 415-393-8200 Email: nparker@gibsondunn.com

Petitioner Jorge Luis Morales-Diaz

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pooja R. Patel Gibson Dunn Crutcher LLP 2001 Ross Ave Suite 2100 Dallas, TX 75201 214-698-3100 Email: ppatel@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Patrick LeGrand Gibson Dunn Crutcher LLP 2001 Ross Avenue Suite 2100 Dallas, TX 75201 214-698-3405 Email: alegrand@gibsondunn.com ATTORNEY TO BE NOTICED
represented by Alayna Leigh Monroe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine Marquart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee G Durst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas M Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pooja R. Patel (See above for address) LEAD ATTORNEY

Petitioner Hugo Sanchez-Valdes
Petitioner Kelvin Armando Ulloa Escobar TERMINATED: 07/01/2020

ATTORNEY TO BE NOTICED
Andrew Patrick LeGrand (See above for address) ATTORNEY TO BE NOTICED
represented by Alayna Leigh Monroe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine Marquart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee G Durst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas M Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pooja R. Patel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Patrick LeGrand (See above for address) ATTORNEY TO BE NOTICED
represented by Alayna Leigh Monroe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine Marquart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Respondent Chad F. Wolf
Respondent U.S. Immigration and Customs Enforcement
Respondent Patrick Contreras
Respondent

Lee G Durst (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas M Parker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pooja R. Patel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Patrick LeGrand (See above for address) ATTORNEY TO BE NOTICED
represented by Ariel Nicole Wiley US Attorney's Office 1000 Louisiana Street #2300 Houston, TX 77002 713-567-9344 Email: ariel.wiley@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ariel Nicole Wiley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ariel Nicole Wiley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William P. Barr
Respondent Randy Tate

represented by Ariel Nicole Wiley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ariel Nicole Wiley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/23/2020
06/24/2020 06/24/2020 06/24/2020 06/24/2020 06/24/2020 06/24/2020

# Docket Text
1 PETITION for Writ of Habeas Corpus (Filing fee $ 5 receipt number 0541-24836347) filed by Hugo Sanchez-Valdes, Jorge Luis Morales-Diaz, Roger Ernesto La O Munoz, Kelvin Armando Ulloa Escobar. (Attachments: # 1 Declaration of Nicholas M. Parker, # 2 Parker Decl. Ex. A, # 3 Parker Decl. Ex. B, # 4 Parker Decl. Ex. C, # 5 Civil Cover Sheet)(LeGrand, Andrew) (Entered: 06/23/2020)
2 MOTION for Lee G. Dunst to Appear Pro Hac Vice by Roger Ernesto La O Munoz, Jorge Luis Morales-Diaz, Hugo Sanchez-Valdes, Kelvin Armando Ulloa Escobar, filed. Motion Docket Date 7/15/2020. (LeGrand, Andrew) (Entered: 06/24/2020)
3 MOTION for Katherine Marquart to Appear Pro Hac Vice by Roger Ernesto La O Munoz, Jorge Luis Morales-Diaz, Hugo Sanchez-Valdes, Kelvin Armando Ulloa Escobar, filed. Motion Docket Date 7/15/2020. (LeGrand, Andrew) (Entered: 06/24/2020)
4 MOTION for Alayna Monroe to Appear Pro Hac Vice by Roger Ernesto La O Munoz, Jorge Luis Morales-Diaz, Hugo Sanchez-Valdes, Kelvin Armando Ulloa Escobar, filed. Motion Docket Date 7/15/2020. (LeGrand, Andrew) (Entered: 06/24/2020)
5 MOTION for Nicholas M. Parker to Appear Pro Hac Vice by Roger Ernesto La O Munoz, Jorge Luis Morales-Diaz, Hugo Sanchez-Valdes, Kelvin Armando Ulloa Escobar, filed. Motion Docket Date 7/15/2020. (LeGrand, Andrew) (Entered: 06/24/2020)
6 MOTION for Pooja R. Patel to Appear Pro Hac Vice by Roger Ernesto La O Munoz, Jorge Luis Morales-Diaz, Hugo Sanchez-Valdes, Kelvin Armando Ulloa Escobar, filed. Motion Docket Date 7/15/2020. (LeGrand, Andrew) (Entered: 06/24/2020)
7 Request for Issuance of Summons as to William P. Barr, Patrick Contreras, Randy Tate, U.S. Immigration and Customs Enforcement, Chad F. Wolf, filed. (Attachments: # 1 Request for Issuance of Summons (U.S.

06/25/2020 06/26/2020
06/26/2020
06/26/2020 06/28/2020 06/29/2020

Immigration and Customs Enforcement), # 2 Request for Issuance of Summons (Patrick Contreras), # 3 Request for Issuance of Summons (William P. Barr), # 4 Request for Issuance of Summons (Randy Tate))(LeGrand, Andrew) (Entered: 06/24/2020)
8 Summons Issued as to Patrick Contreras, Randy Tate, U.S. Immigration and Customs Enforcement, Chad F. Wolf, and U.S. Attorney General. Issued summons returned to plaintiff by NEF, filed. (Attachments: # 1 Summons Patrick D. Contreras, # 2 Summons Randy Tate, # 3 Summons U.S. Immigration, # 4 Summons W.Barr)(JacquelineMata, 4) (Entered: 06/25/2020)
9 MOTION for Temporary Restraining Order by Roger Ernesto La O Munoz, Jorge Luis Morales-Diaz, Hugo Sanchez-Valdes, Kelvin Armando Ulloa Escobar, filed. Motion Docket Date 7/17/2020. (Attachments: # 1 Memorandum of Law in Support of Motion for Temporary Restraining Order, # 2 Appendix of Cited Cases, # 3 Appx. Ex. 1, # 4 Appx. Ex. 2, # 5 Appx. Ex. 3, # 6 Appx. Ex. 4, # 7 Appx. Ex. 5, # 8 Appx. Ex. 6, # 9 Appx. Ex. 7, # 10 Appx. Ex. 8, # 11 Appx. Ex. 9, # 12 Appx. Ex. 10, # 13 Appx. Ex. 11, # 14 Appx. Ex. 12, # 15 Appx. Ex. 13, # 16 Proposed Order)(LeGrand, Andrew) (Entered: 06/26/2020)
10 DECLARATION of ALAYNA MONROE re: 9 MOTION for Temporary Restraining Order, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36)(LeGrand, Andrew) (Entered: 06/26/2020)
11 DECLARATION of NICHOLAS M. PARKER re: 9 MOTION for Temporary Restraining Order, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(LeGrand, Andrew) (Entered: 06/26/2020)
12 NOTICE of Appearance by Ariel N. Wiley on behalf of William P. Barr, Patrick Contreras, Randy Tate, U.S. Immigration and Customs Enforcement, Chad F. Wolf, filed. (Wiley, Ariel) (Entered: 06/28/2020)
13 NOTICE of Setting as to 9 MOTION for Temporary Restraining Order. Parties notified. Motion Hearing set for 7/1/2020 at 10:00 AM in by video before Judge Vanessa D Gilmore, filed. (bthomas, 4) (Entered: 06/29/2020)

06/29/2020 06/29/2020 06/29/2020 06/29/2020 06/29/2020 06/30/2020
07/01/2020
07/01/2020 07/01/2020 07/02/2020

14 ORDER granting 3 Motion for Katherine Marquart to Appear Pro Hac Vice.(Signed by Judge Vanessa D Gilmore) Parties notified.(jdav, 4) (Entered: 06/29/2020)
15 ORDER granting 2 Motion for Lee G. Durst to Appear Pro Hac Vice.(Signed by Judge Vanessa D Gilmore) Parties notified.(jdav, 4) (Entered: 06/29/2020)
16 ORDER granting 4 Motion for Alayna Monroe to Appear Pro Hac Vice.(Signed by Judge Vanessa D Gilmore) Parties notified.(jdav, 4) (Entered: 06/29/2020)
17 ORDER granting 5 Motion for Nicholas M. Parker to Appear Pro Hac Vice.(Signed by Judge Vanessa D Gilmore) Parties notified.(jdav, 4) (Entered: 06/29/2020)
18 ORDER granting 6 Motion for Pooja R. Patel to Appear Pro Hac Vice.(Signed by Judge Vanessa D Gilmore) Parties notified.(jdav, 4) (Entered: 06/30/2020)
19 RESPONSE in Opposition to 9 MOTION for Temporary Restraining Order, filed by William P. Barr, Patrick Contreras, Randy Tate, U.S. Immigration and Customs Enforcement, Chad F. Wolf. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Proposed Order)(Wiley, Ariel) (Entered: 06/30/2020)
Minute Entry for proceedings held before Judge Vanessa D Gilmore. MOTION HEARING held on 7/1/2020 re: 9 Motion for Temporary Restraining Order. Arguments presented. The parties may file any supplemental documentation to their pleadings. The Motion for Temporary Restraining Order is taken under advisement. Appearances: Nicholas Parker. Alayna Monroe. Pooja Patel. Ariel Wiley. (Court Reporter: Heather Alcaraz), filed. (bthomas, 4) (Entered: 07/01/2020)
20 SUPPLEMENT to 9 MOTION for Temporary Restraining Order by Roger Ernesto La O Munoz, Jorge Luis Morales-Diaz, Hugo Sanchez-Valdes, filed. (Attachments: # 1 Exhibit A)(bthomas, 4) (Entered: 07/01/2020)
21 SUPPLEMENT to 19 Response in Opposition to Motion by William P. Barr, Patrick Contreras, Randy Tate, U.S. Immigration and Customs Enforcement, Chad F. Wolf, filed. (Attachments: # 1 Notice to Appear and Form I-213s)(bthomas, 4) (Entered: 07/01/2020)
22 SUPPLEMENT to 9 MOTION for Temporary Restraining Order by Kelvin Armando Ulloa Escobar, Roger Ernesto La O Munoz, Jorge Luis Morales-Diaz, Hugo Sanchez-Valdes, filed.(Parker, Nicholas) (Entered: 07/02/2020)

07/06/2020 07/06/2020 07/31/2020
07/31/2020

23 NOTICE of Supplemental Authority re: 19 Response in Opposition to Motion, 21 Supplement by William P. Barr, Patrick Contreras, Randy Tate, U.S. Immigration and Customs Enforcement, Chad F. Wolf, filed. (Wiley, Ariel) (Entered: 07/06/2020)
24 ORDER denying 9 Petitioner's Motion for Temporary Restraining Order.(Signed by Judge Vanessa D Gilmore) Parties notified.(bthomas, 4) (Entered: 07/06/2020)
25 NOTICE of Dismissal as to William P. Barr, Patrick Contreras, Randy Tate, U.S. Immigration and Customs Enforcement, Chad F. Wolf by Hugo Sanchez-Valdes, Jorge Luis Morales-Diaz, Kelvin Armando Ulloa Escobar, Roger Ernesto La O Munoz, filed. (LeGrand, Andrew) (Entered: 07/31/2020)
26 ORDER OF DISMISSAL granting 25 Notice of Dismissal. Case terminated on 7/31/2020. (Signed by Judge Vanessa D Gilmore) Parties notified. (bthomas, 4) (Entered: 08/03/2020)

 
 Case 4:20-cv-02206 Document 24 Filed on 07/06/20 in TXSD
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Page 1 of 17
United States District Court Southern District of Texas
ENTERED
July 06, 2020
David J. Bradley, Clerk

§

ROGER ERNESTO LA O MUNOZ, et al., §

§

Plaintiffs,

§

§

v.

§

§

CHAD F. WOLF, et al.,

§

§

Defendants.

§

CASE NO. 4:20-CV-2206

O R D E R Pending before the Court is Petitioners’ Motion for a Temporary Restraining Order. (Instrument No. 9).
I. Petitioners Roger Ernesto La O Munoz (“La O Munoz”), Jorge Luis Morales-Diaz (“Morales-Diaz”), Hugo Sanchez-Valdes (“Sanchez-Valdes”), and Kelvin Armando Ulloa Escobar (“Ulloa Escobar”) (collectively, “Petitioners”) filed a Petition for Writ of Habeas Corpus and this Motion for Temporary Restraining Order to seek their immediate release from detention based on their exposure to COVID-19. (Instrument No. 9 at 1). Petitioners filed their Petition against Chad F. Wolf, in his official capacity as Acting Secretary of U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement (“ICE”), Patrick Contreras, in his official capacity as Field Office Director of ICE, William P. Barr, in his official capacity as Attorney General of the United States, and Randy Tate, in his official capacity as Warden at the Facility (collectively, “Respondents”). (Instrument No. 1).

Case 4:20-cv-02206 Document 24 Filed on 07/06/20 in TXSD Page 2 of 17
A. Petitioners have been in custody of ICE for at least six months and, for some portion of that time, detained at Joe Corley Detention Facility (the “Facility”) in Conroe, Texas. (Instrument No. 11 at 2). Petitioners are seeking asylum in the United States based on physical and psychological persecution they have suffered in their home countries due to political beliefs. Id. Petitioner La O Munoz is a 35-year-old citizen and national of Cuba. (Instrument No. 1 at 3). La O Munoz seeks asylum in the United States due to physical and psychological abuse inflicted upon him by Cuban authorities due to his political views and opposition of the Castro regime. Id. La O Munoz is a college graduate with a degree in hygiene and epidemiology. Id. La O Munoz entered the United States on or about July 15, 20191 and, shortly thereafter, was sent to Mexico as a part of the Migrant Protection Protocols (“MPP”).2 Id. After being beaten and robbed in Mexico, on December 3, 2019, La O Munoz demonstrated a credible fear during his non-refoulement interview3 and returned to the United States. Id. He has been under ICE custody since. Id. La O Munoz has no criminal history in any country and has close family ties to the United States. Id. His individual merits hearing before the immigration court is scheduled for
1 Respondents indicate that La O Munoz entered on July 14, 2019. (Instrument No. 19 at 8). 2 The MPP is a U.S. Government action where individuals seeking admission to the U.S. from Mexico—either illegally or without proper documentation—will return Mexico and wait there for the duration of their immigration proceedings. Migrant Protection Protocols, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols (last visited June 30, 2020). 3 Non-refoulement is a principle enshrined in Article 33 of the 1951 Convention Relating to the Status of Refugees (“1951 Convention”) and its 1967 Protocol. Article 33(1) of the 1951 Convention provides,
“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Convention Relating to the Status of Refugees, art. 33(1), July 28, 1951, 189 U.N.T.S. 137. The United States is not a party to the 1951 Convention but is a party to the 1967 Protocol.
2

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July 2, 2020. (Instrument No. 1 at 4). Respondents indicate that La O Munoz is scheduled for a final hearing on the merits on July 9, 2020. (Instrument No. 19 at 8).
La O Munoz is receiving medication for adjustment disorder and gastro-esophageal reflux disease without esophagitis. (Instrument No. 19 at 8). Respondents have provided him treatment on eight occasions from March 2020 to June 2020. Id. at 8-9. La O Munoz most recently refused medical care on June 9, 2020. Id. at 9.
Petitioner Morales-Diaz is a 53-year-old citizen and national of Cuba who seeks asylum due to persecution he suffered in Cuba based on his political beliefs. (Instrument No. 1 at 4). No additional information has been provided as to the persecution he faced in Cuba. Morales-Diaz has been in custody of ICE since around November 4, 2019 and has been at the Facility since March 12, 2020. Id. Morales-Diaz has no known criminal history in any country and has close community ties to the United States. Id. His final hearing on the merits before the immigration court is scheduled for July 9, 2020. (Instrument No. 1 at 4).
Petitioner Sanchez-Valdes is a 31-year-old citizen and national of Cuba. (Instrument No. 1 at 4). Sanchez-Valdes seeks asylum or, alternatively, withholding of removal or protection under the Convention Against Torture, due to the persecution he suffered in Cuba as a result of being a political dissident and opponent of the Castro regime. Id. Sanchez-Valdes presented himself for inspection at El Paso, Texas on November 6, 2019. Id. There, he was detained and sent to Mexico as a part of the Migrant Protection Protocols. On February 12, 2020, during a non-refoulement interview, Sanchez-Valdes demonstrated a credible fear of returning to Mexico and was permitted to re-enter the United States. Id. Sanchez-Valdez has remained under ICE custody during this time. Id. Sanchez-Valdes has no criminal history in any country and has close family ties to the United States. Id. Sanchez-Valdes has been diagnosed with Post-
3

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Traumatic Stress Disorder (“PTSD”) and is on a treatment plan with medication. (Instrument No. 19 at 10). His final hearing on the merits before the immigration court is scheduled for July 7, 2020. (Instrument No. 1 at 4).
Petitioner Ulloa Escobar is a 26-year-old citizen and national of Honduras. Id. Ulloa Escobar is seeking political asylum for being an active member of and activist for the Liberal Party of Honduras, which he and his family have supported since 2016. (Instrument No. 11-3 at 5). On June 1, 2020 Ulloa Escobar was paroled and released. (Instruments No. 19 at 8; No. 19-1 at 2-6). Currently, Ulloa Escobar is in New Jersey. Id.
With the exception of Ulloa Escobar, Petitioners have sought parole and ICE has denied it. (Instrument No. 9-1 at 7).
B. While Petitioners were detained at the Facility, the novel coronavirus that caused COVID-19 began spreading throughout the world and was declared to be a pandemic. See, e.g., Jamie Ducharme, World Health organization Declares COVID-19 a ‘Pandemic.’ Here’s What That Means, Time (March 11, 2020), https://time.com/5791661/who-coronavirus-pandemicdeclaration/. As of July 6, 2020, there were over 2.8 million confirmed cases of COVID-19 in the United States. Cases in the U.S., Coronavirus Disease 2019 (COVID 2019), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited July 6, 2020). As of June 16, 2020, over 68,000 people in state and federal prisons nationwide had tested positive for COVID-19. (Instrument No. 9-1 at 14; No. 10-25 at 2). As of June 2, 2020, ICE tested 2,781 detainees under its custody and over half had tested positive for COVID-19. (Instrument No. 10-15 at 4). To date, the Facility has reported 44 confirmed cases of COVID19—an infection rate of approximately fourteen percent—and one death due to COVID-19.
4

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(Instrument No. 10-15 at 3). At the motion hearing, Respondents reported that there are currently only three active COVID-19 cases in the Facility.
Petitioners allege that it is impossible for detainees to take prophylactic measures recommended by the Centers for Disease Control and Prevention (“CDC”) to prevent exposure to COVID-19. (Instrument No. 9 at 15). Petitioners state that there was a lack of personal protective equipment and cleaning supplies to sanitize common areas, cramped sleeping quarters, and inability to engage in social distancing. (Instrument No. 9-1 at 14-15). Petitioners allege that the Facility does not sanitize the shared toilets, sinks, and showers. Id. Detainees are only able to clean the common bathrooms with the rationed soap and shampoo they are given for bathing. (Instruments No. 9-1 at 15; No. 11 at 2 ¶ 7). Morales-Diaz states that he is detained with 35 other detainees in a room measuring 15 meters by 7 meters. (Instrument No. 11 at 3). La O Munoz claims that he shares a room with 33 other detainees with such proximity that it is difficult to access his bunk. Id. Petitioners also allege a high turnover of the detained population in the Facility and a high traffic flow consisting of staff, contractors, and vendors that engage with the Facility on a daily basis. (Instrument No. 9-1 at 13-14). Petitioners state that their dormitories are poorly ventilated and that they are not permitted to spend time outside where it is known to be less risky to contract the virus. (Instrument No. 11 at 3). Petitioners also allege that Respondents offered to provide face masks if the detainees signed a document that was neither translated into, nor explained in, Spanish. (Instrument No. 11 at 3). Petitioners contend that those who resisted signing the document faced aggression and threats from ICE agents and/or officials. Id.
Respondents state that the Facility has been providing consistent medical care and has had an evolving response to the growing pandemic. (Instrument No. 19 at 7, 16). This includes utilizing ICE epidemiologists to track the outbreak, preventing visitors from entering the Facility,
5

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and holding sessions on best practices and symptoms of COVID-19. (Instruments No. 19 at 1617; 19-3 at 2-3, 6). Respondents state that the Facility is operating at twenty percent of its maximum capacity, with only 303 detainees currently in the Facility. (Instrument No. 19-3 at 5). Each housing unit in the Facility hosts between 10 to 36 detainees each. Id. Bunk beds in these housing units are slightly under six feet apart from each other. Id. At the hearing, Respondents state that if the bunk beds are adjacent to each other, a metal divider separates the two adjoining beds and detainees sleep in every other bed to encourage social distancing. See also (Instrument No. 19-7 at 5). Detainees are provided meals in the housing units to minimize movement and cleaning supplies so they can clean the common showers, toilets, sinks, tables, and common areas between uses. (Instruments No. 19 at 17; No. 19-3 at 5-6). At the motion hearing, Respondents stated that detainees are able to receive additional cleaning supplies and masks upon request. Respondents also assert that they have increased sanitization of the common areas, provided masks to detainees, and limited movement between detention centers. Id. at 17-18. Respondents allege that incoming detainees and staff are screened for COVID-19 before entering the Facility. Id. Lastly, Respondents claim that the Facility has limited the transfer and movement of detainees among the detention centers and that the Facility is not allowing visitors. Id. at 18.
On June 23, 2020, Petitioners filed their Petition for Writ of Habeas Corpus. (Instrument No. 1). Petitioners challenge the constitutionality of their continued detention under the Fifth Amendment to the Constitution, in light of the COVID-19 pandemic. (Instrument No. 9-1 at 7).
On June 26, 2020, Petitioners filed their Motion for Temporary Restraining Order. (Instrument No. 9). On June 29, 2020, Respondents filed their Response. (Instrument No. 19).
6

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On June 30, 2020, the Court held a hearing on the Petitioners’ Motion for Temporary Restraining Order.
At the hearing, Petitioners clarified that in light of the additional information provided by Respondents, their remaining Fifth Amendment allegations were based on the following issues: 1) no hand sanitizer, 2) no gloves, 3) only one mask provided per detainee, 4) limited Facility signage in Spanish, and 5) failure to provide COVID-19 testing for all detainees and staff.
II. “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). To obtain a temporary restraining order or a preliminary injunction, a plaintiff must show the following:
(1) a substantial likelihood that the plaintiff will prevail on the merits; (2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is not granted; (3) a showing that the threatened injury to the plaintiff outweighs the potential harm to the defendants if the injunctive relief is not granted; and (4) a showing that issuance of the injunction will not disserve the public interest. Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989). When the government is a party, such as here, “its interest and harm merges with that of the public.” See Planned Parenthood v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013). The decision whether to grant a temporary restraining order is within the sound discretion of the district court. Id. A party is not required to prove his case in full at the temporary restraining order hearing and the evidence presented at the hearing may be less complete than in a trial on the merits. Camenisch, 451 U.S. at 395. However, a temporary restraining order is “an
7

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extraordinary remedy” that courts should only grant if the moving party has clearly carried its burden of persuasion with respect to all four factors. Allied Mktg., 878 F.2d at 809.
As a tool of equity, temporary restraining orders can be mandatory, in that it mandates a specific course of conduct or the performance of an affirmative act. State of Ala. v. United States, 304 F.2d 583, 590 (5th Cir. 1962), aff’d sub nom. Alabama v. United States, 371 U.S. 37 (1962). Mandatory preliminary relief is “particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.” Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976); see also United States v. Texas, 601 F.3d 354, 362 (5th Cir. 2010).
III. Petitioners seek a temporary restraining order, directing Respondents to release Petitioners from detention immediately as a remedy for the ongoing Fifth Amendment due process violation. (Instrument No. 9-1 at 8).
A. Petitioners argue that their continued, prolonged detention at the Facility violates their Fifth Amendment due process rights. (Instrument No. 19-1 at 17). Petitioners further contend that Respondent violated their due process rights because during their prolonged detention they have been subjected to conditions that bear no reasonable relationship to a legitimate governmental interest. Id. Respondents argue that Petitioners (1) are unable to invoke habeas corpus to challenge their conditions of confinement and (2) fail to plead a constitutional violation. (Instrument No. 19 at 11-14). As a preliminary matter, Respondents argue that, because Ulloa Escobar was no longer detained in the Facility when Petitioners filed their Petition for Writ of Habeas Corpus, his case
8

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is moot. (Instrument No. 19 at 8). Indeed, Petitioners conceded this point. (Instrument No. 20 at 1). Thus, the Court renders his claim moot.
1. As a preliminary matter, during the motion hearing, parties disputed what statute governed Petitioners’ detention. Respondents argued that Petitioners are presently subject to mandatory detention under 8 U.S.C. § 1225(b). See (Instrument No. 21). Petitioners argued that they are subject to discretionary detention under 8 U.S.C. § 1226(a). (Instruments No. 20; No. 22). In either case, habeas claims are permissible to challenge detention under both 8 U.S.C. §§ 1225(b) and 1226(a). See Jennings v. Rodriquez, 138 S. Ct. 830, 837-39 (2018) (considering habeas petition challenging indefinite detention under 8 U.S.C §§ 1225(b) and 1226(a)); Demore v. Kim, 538 U.S. 510, 517 (2003) (holding that habeas petitions are permissible to challenge detention under 8 U.S.C. § 1226(c)). Therefore, the Court need not decide this issue here. Petitioners argue that their habeas claim involves a fact of confinement issue or, in the alternative, a conditions of confinement issue. See generally (Instrument No. 9). Petitioners argue that this is a fact of confinement issue because of the fact that they are confined during a pandemic and the prolonged duration of confinement. Respondents argue that Petitioners assert a conditions-of-confinement issue. (Instrument No. 19 at 11). Because of this, Respondents contend, Petitioners are unable to invoke habeas corpus when seeking injunctive relief unrelated to the unlawfulness or cause of their detention. Id. at 11-13. Respondents assert that a civil rights action, not habeas, is the appropriate vehicle for this issue. Id. at 12. Petitioners argue that this is a fact of confinement case because they are being held at the Facility indefinitely, however, Respondents make clear that Petitioners have their final merits hearing on July 7, 2020 and July 9, 2020. See (Instruments No. 9-1 at 19; No. 19 at 8-9).
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Moreover, central to Petitioners’ argument is that they are detained during a pandemic and the Facility has taken insufficient prophylactic measures to prevent exposure to COVID-19. See (Instrument No. 9-1 at 18-20). Petitioners fail to point to case law—and the Court knows of none—that allows conditions of confinement to be considered for fact or duration of confinement cases. Cf., e.g., Zadvydas v. Davis, 533 U.S. 678, 678-702 (2001) (analyzing a fact or duration of confinement case without considering confinement conditions). Since Petitioners’ argument stems from the conditions in which they are confined, the Court finds that this is a conditions-of-confinement case.
Respondents argue that habeas is not available to review conditions of confinement issues. (Instrument No. 19 at 12-13). Respondents heavily rely on district court cases to argue that precedent in the Fifth Circuit bars Petitioners’ claims. Id. at 13; (Instrument No. 21 at 2-3) (citing to eight district court cases).
District courts have jurisdiction over petitions for writ of habeas corpus where a petitioner is “in custody in violation of the Constitution or law or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see INS v. St. Cyr., 533 U.S. 289, 305 (2001). While typically habeas is used to challenge the fact or duration of confinement and civil rights actions are used to challenge conditions of confinement, the line distinguishing the two is “a blurry one.” Poree v. Collins, 866 F.3d 235, 242-43 (5th Cir. 2017) (quoting Cook v. Tex. Dep’t of Criminal Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994)). A habeas corpus petition is an appropriate vehicle for noncitizens to challenge the fact of their civil immigration detention. See Zadvydas v. Davis, 533 U.S. at 688. The Supreme Court has deliberately “left open the question whether [detainees] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1862-63 (2017).
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Even the Fifth Circuit has been “less clear” on the categorization of claims. See Poree, 866 F.3d at 243-44. Compare, e.g., Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997) (creating a bright line rule to determine when habeas is appropriate) and Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993) (holding that a detainee cannot avail himself of the writ of habeas corpus when seeking injunctive relief unrelated to the cause of his detention) with Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017) and Coleman v. Dretke, 409 F.3d 665, 670 (5th Cir. 2005) (per curiam) (noting that the Fifth Circuit has not held that certain claims must be brought under § 1983 rather than habeas). This blurred line has created a split amongst our district courts as well. Compare, e.g., Cureno Hernandez v. Mora, No. 1:20-CV-000104-H, 2020 WL 3246753, at *4 (N.D. Tex. June 15, 2020) (dismissing habeas claims related to conditions of confinement because it was the improper vehicle for that issue) with Vazquez Barrera v. Wolf, No. 4:20-CV1241, 2020 WL 1904497, at *3 (S.D. Tex. Apr. 17, 2020) (holding that habeas was appropriate for detainee’s conditions-of-confinement case). However, even when the Fifth Circuit dismissed the use of habeas corpus for conditions-of-confinement claims, the Court acknowledged that the distinction is muddled when a detainee challenges confinement conditions that affect the timing of his release from custody. See, e.g., Carson, 112 F.3d at 821. At minimum, if a challenge to the conditions of confinement would entitle a detainee to accelerated release, “then the challenge must be pursued by writ of habeas corpus.” Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996); see Carson, 112 F.3d at 821.
It is clear that the conditions-of-confinement issues do not neatly fall into habeas or § 1983 claims and the Court need not solve this debate today. Instead, for the purpose of resolving Petitioners’ claim, the Court will follow sister district courts that have allowed habeas claims for conditions-of-confinement issues. At the very least, Petitioners’ claim falls within the bright line
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rule stated in Carson, as Petitioners seek immediate release from detention due to the inadequate conditions. A favorable determination on this issue would result in the accelerated release of Petitioners. Because Petitioners are challenging the constitutionality of their detention and seek relief in the form of their immediate relief, Petitioners appropriately invoked habeas corpus.
2. Respondents first argue that Petitioners are unable to bring direct constitutional claims in the Fifth Circuit. (Instrument No. 19 at 14). However, Respondents fail to recognize that Petitioners are not asserting a standalone constitutional claim but, rather, a writ of habeas corpus on the basis of a Fifth Amendment due process violation. Therefore, Petitioners are appropriately bringing their constitutional claim. Having determined that Petitioners are able to bring their Fifth Amendment claim, the Court turns to the merits of the claim. Respondents argue that even if Petitioners’ direct constitutional due process claim were cognizable, Petitioners fail to plead the claim. (Instrument No. 19 at 14). The State cannot punish pretrial civil detainees. See Cadena v. El Paso Cty., 946 F.3d 717, 727 (5th Cir. 2020); Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996). Immigration detainees, as civil detainees, are entitled to the same constitutional due process protections as pretrial detainees. See Zadvydas v. Davis, 533 US. 678, 690 (2001). There is no special justification for indefinite civil detention. Id. at 690. In situations where the constitutional violation resulted from an episodic act or omission of a state actor, a plaintiff must show deliberate indifference on the part of the municipality. Duvall v. Dallas Cty., Tex., 631 F.3d 203, 207 (5th Cir. 2011). In cases based on the unconstitutional conditions of confinement, a plaintiff must show that the condition at issue has
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“no reasonable relationship to a legitimate governmental interest.” Duvall, 631 F.3d at 207. “[E]ven where a State may not want to subject a detainee to inhumane conditions of confinement or abusive jail practices, its intent to do so is nevertheless presumed when it incarcerates the detainee in the face of such known conditions and practices.” Hare, 74 F.3d at 644. Because this case is grounded in the unconstitutional conditions of confinement, Petitioners must meet the reasonable-relationship test.
To prevail on a conditions of confinement case, a plaintiff must (1) identify “a rule or restriction,” or “an identifiable intended condition or practice,” or “that the jail official’s acts or omissions were sufficiently extended or pervasive[,]” show that it (2) “was not reasonably related to a legitimate governmental objective,” and that it (3) “caused the violation of [the plaintiff’s] constitutional rights.” Duvall, 631 F.3d at 207.
Petitioners provide evidence to identify an “intended condition.” Respondents contend that Petitioners impermissibly proffer hearsay statements and newspaper articles to demonstrate the intended condition. (Instrument No 19 at 15). However, district courts are permitted to rely on hearsay evidence at the preliminary injunction stage. See Federal Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554, 558 (5th Cir. 1987). Thus, the Court is permitted to consider the Petitioners’ evidence at this stage of the case.
To identify an “intended condition,” Petitioners’ Motion presents a list of inadequacies that overwhelmed the Facility’s ability to safeguard detainees from exposure to COVID-19. As detailed in the factual summary of this Order, Petitioners stated—among other things—that there was a lack of personal protective equipment and cleaning supplies to sanitize common areas, cramped sleeping quarters, and inability to engage in social distancing. (Instrument No. 9-1 at 14-15). Petitioners also observed a high turnover of the detained population in the Facility and
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high traffic flow consisting of staff, contractors, and vendors that engage with the Facility on a daily basis. (Instrument No. 9-1 at 13-14). In its Response, the Government provided an updated account of the measures the Facility has taken to prevent COVID-19 exposure. See (Instrument No. 19 at 16-18). At the hearing, counsel amended the identified condition based on the Government’s updated account. What was initially an insurmountable list of grievances has now whittled down to a handful of concerns: no hand sanitizer provided, no gloves provided, only one mask provided per detainee, limited Spanish signage throughout the Facility, and failure to provide COVID-19 testing for all detainees and staff.
The modified list of intended conditions identified at the hearing is a significant departure from those identified in Petitioners’ Motion. This modified list of inadequacies fails to show an intended condition or pervasive omission to act that bears no reasonable relationship to a legitimate governmental purpose. Conversely, it demonstrates that the Facility has taken significant steps to minimize detainees’ exposure to COVID-19. As stated at the motion hearing, the Facility is operating at twenty percent of its maximum capacity to accommodate for social distancing, providing cleaning supplies for detainees to sanitize shared facilities before use, holding informational sessions on COVID-19 for detainees and staff, and limiting transfers among detention centers. See also (Instruments No. 19 at 17; No. 19-2 at 3-4). At the motion hearing, Respondents stated that detainees can receive additional cleaning supplies and masks. Additionally, staff and detainees are screened upon entering the Facility with questionnaires and temperature checks. (Instruments No. 19 at 17; No. 19-2 at 3-4). While COVID-19 testing is limited to asymptomatic detainees, this policy reasonably relates to a legitimate governmental purpose of rationing supplies and operating within possible budgetary restrictions. The measures implemented by the Facility do not show a systemic failure of medical care that the Fifth Circuit
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typically finds to be an unconstitutional condition of confinement. See Brown v. Bolin, 500 F. App’x 309, 313 (5th Cir. 2012). In contrast, they show that the Facility learned how to control the spread of COVID-19 and implemented known measures to control the situation. Cf. Duvall, 631 F.3d at 208 (holding that there was an unconstitutional condition of confinement because the County jail was aware of the spread of bacterial infection where it housed inmates but did not implement known measures to eradicate the situation). Thus, because Petitioners have not identified an intended condition that bears no reasonable relationship to a legitimate governmental purpose, Petitioners have not shown that there is an unconstitutional condition of confinement at this time.
Accordingly, Petitioners have not demonstrated a substantial likelihood of success on the merits.
B. Even if Petitioners did show that there was a substantial likelihood of success on the merits, Petitioners fall short of showing irreparable injury. Petitioners allege that there is a threat of imminent harm that warrants immediate relief. (Instrument No. 9-1 at 20). Respondents argue that Petitioners are unlikely to suffer irreparable injury because Petitioners do not have underlying medical conditions that make them more susceptible for COVID-19 nor would cause irreparable injury if they were to contract the virus that causes COVID-19. (Instrument No. 19 at 19). A party seeking immediate injunctive relief need only show a “significant threat” of “imminent” injury. Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986). However, a party need not show that the threatened harm has already occurred. Helling v. McKinney, 509 U.S. 25, 33 (1993); Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004) (holding that a prisoner
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“does not need to show that death or serious illness has yet occurred to obtain relief.”). Nor does the party need to show that the harm is inevitable. Humana, 804 F.2d at 1394.
Petitioners have proffered evidence that there have been confirmed cases of COVID-19 in the Facility. While there is a risk that they could be exposed to COVID-19, the risk is reduced given the extensive measures Respondents have recently implemented to prevent exposure to COVID-19. Additionally, Petitioners have final hearings on the merits of their asylum case scheduled within the next few days. Sanchez-Valdes’s final hearing on the merits is scheduled for July 7, 2020. (Instrument No. 19 at 9). La O Munoz and Morales-Diaz have their final hearings on the merits scheduled for July 9, 2020. Id. at 8-9. Because Petitioners have final merit hearings scheduled that could potentially result in their release and the Facility has taken significant steps to minimize COVID-19 exposure, there is a low likelihood of irreparable harm.
Thus, the Court finds that Petitioners have not shown irreparable injury. Because the Court finds that Petitioners have failed to satisfy the first two prongs to obtain a temporary restraining order, the Court need not address the final prong.
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For the foregoing reasons, Petitioners’ Motion for a Temporary Restraining Order is DENIED. (Instrument No. 9).
The Clerk shall enter this Order and provide a copy to all parties. SIGNED on this _6_t_h__ day of July, 2020.
____________________________________ VANESSA D. GILMORE
UNITED STATES DISTRICT JUDGE
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 Case 4:20-cv-02206 Document 1 Filed on 06/23/20 in TXSD Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ROGER ERNESTO LA O MUNOZ; JORGE LUIS MORALES-DIAZ; HUGO SANCHEZVALDES; KELVIN ARMANDO ULLOA ESCOBAR,
Petitioners-Plaintiffs,
vs.
CHAD F. WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; PATRICK CONTRERAS, in his official capacity as Field Office Director, Houston Field Office, Enforcement and Removal Operations, U.S. Immigration & Customs Enforcement; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; RANDY TATE, in his official capacity as Warden, Joe Corley Detention Facility,
Respondents-Defendants.

Case No. 4:20-cv-2206

VERIFIED PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
PRELIMINARY STATEMENT
1. Petitioners are civil immigration detainees who—by virtue of their participation in the Migrant Protection Protocols (“MPP”) and their status as citizens and nationals of countries that are not currently accepting deportees from the United States—face unwarranted, prolonged detention at the Joe Corley Detention Facility (“JCDF”) in Conroe, Texas, in the midst of the COVID-19 pandemic. These four men—three citizens of Cuba and one of Honduras, none of whom have a criminal record of any kind in any country—have each been detained by U.S. Immigration and Customs Enforcement (“ICE”) for at least six months pursuant to a discretionary detention

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statute, and are now trapped in a facility that has seen a surge in COVID-19 infections rivaling that of any other detention facility nationwide. As has been well-documented in the media—and by ICE itself—the COVID-19 virus runs rampant in such facilities, creating a risk of harm to Petitioners that is both unconscionably high and entirely preventable. Indeed, the pandemic has wrecked particular devastation on those, like Petitioners, detained at JCDF: as of June 22, 2020, at least 42 detainees at JCDF have tested positive for COVID-19 and at least one detainee there has died as a result of the virus. As COVID-19 cases spike in Texas, the risks that Petitioners face at JCDF are more acute than ever.
2. Infectious disease specialists warn that no conditions of confinement can adequately mitigate or reduce the risk of harm to detainees during the COVID-19 pandemic. Packed into overcrowded, close quarters with other detainees and correctional staff; forced to share necessities like showers, toilets, sinks, and telephones with dozens of others; and deprived of basic forms of preventative hygiene such as soap, hand sanitizer, or adequate personal protective equipment, Petitioners are helpless to take the only risk-mitigation steps known to limit transmission of the virus.
3. Medical experts agree that reducing populations in prisons, jails, and detention centers is a necessary component of risk mitigation during the COVID-19 pandemic. A failure to heed public health advice to reduce inmate and detainee populations will not only harm the inmates and detainees, but will also have ripple effects across communities as rapid transmission of the disease taxes already overburdened hospitals and healthcare systems—indeed, it already has.
4. It is against this backdrop that ICE has refused to release Petitioners on parole without any meaningful explanation, despite Petitioners’ demonstrated ties to the United States and despite their lack of any criminal record whatsoever. Faced with a global pandemic that has upended virtually every aspect of life, ICE remains steadfast in its unwillingness to act, despite the reality that its failure to do so exacerbates the risks faced by Petitioners and many more civil detainees in its custody at JCDF and elsewhere.
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5. Indeed, ICE has detained Petitioners indefinitely despite their strong ties to the United States and their lack of criminal history. Release from custody is the only effective means to protect Petitioners from the heightened risk they face of contracting the virus that causes COVID-19 at JCDF. Accordingly, this suit seeks immediate release of Petitioners from civil immigration detention. Their continued, prolonged detention violates their due process rights by constituting deliberate indifference to the health and safety risks they face as detainees at JCDF and by failing to provide constitutionally adequate safeguards commensurate with the deprivation of life and liberty that they face.
PARTIES 6. Petitioner-Plaintiff Roger Ernesto La O Munoz is a 35-year-old citizen and national of Cuba who seeks asylum in the United States as protection against physical and psychological abuse inflicted upon him by the Cuban authorities as a consequence of his political views and his opposition to the Castro regime. Mr. La O Munoz is a college graduate with a degree in hygiene and epidemiology who first entered the United States on or about July 15, 2019, at which point he was detained for two days in an ICE facility before being sent to Juarez, Mexico as part of the MPP program. Mr. La O Munoz returned to the United States on or about December 3, 2019 after being beaten and robbed by Mexican officials. After demonstrating a credible fear of returning to Mexico during his non-refoulement interview,1 Mr. La O Munoz was sent to the ICE Service Processing Center in El Paso, Texas, where he was detained from on or about December 3, 2019 until on or about March 12, 2020, at which point (and while exhibiting symptoms of COVID-19 for which he did not receive treatment) he was transferred to JCDF, where he remains in custody of ICE under 8 U.S.C. § 1226(a), a discretionary detention statute. Mr. La O Munoz has no known criminal history in any country and has close community and family ties to the United States such
1 The principle of non-refoulement—which is included in (among other sources of international human rights law) the Convention Against Torture (“CAT”)—prohibits countries from “transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.” Office of the High Comm’r, United Nations Human Rights, The Principle of Non-Refoulement Under International Human Rights Law, available at https://bit.ly/31fImjf.
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that he is not a flight risk. Mr. La O Munoz’s individual merits hearing before the immigration court is scheduled for July 2, 2020.
7. Petitioner-Plaintiff Jorge Luis Morales-Diaz is a 53-year-old citizen and national of Cuba who seeks asylum in the United States due to persecution he has suffered in Cuba on account of his political opinions. Mr. Morales-Diaz has been in custody of ICE under 8 U.S.C. § 1226(a), a discretionary detention statute, since on or about November 4, 2019, and has been detained at JCDF since on or about March 12, 2020. Mr. Morales-Diaz has no known criminal history in any country and has close community and family ties to the United States such that he is not a flight risk. Mr. Morales-Diaz’s individual merits hearing before the immigration court is scheduled for July 9, 2020.
8. Petitioner-Plaintiff Hugo Sanchez-Valdes is a 31-year-old citizen and national of Cuba who seeks asylum—or, alternatively, withholding of removal or protection under CAT—in the United States as protection against persecution he suffered in Cuba as a result of his status as a political dissident and opponent of the Castro regime. Mr. Sanchez-Valdes presented himself for inspection at El Paso, Texas on November 6, 2019, at which point he was detained and sent to Mexico as part of the MPP program. He re-entered the United States on February 12, 2020 after demonstrating a credible fear of returning to Mexico during a non-refoulement interview. Mr. Sanchez-Valdes has been detained in ICE facilities since that time, first in the Service Processing Center in El Paso and subsequently at JCDF, where he remains in custody of ICE under 8 U.S.C. § 1226(a), a discretionary detention statute. Mr. Sanchez-Valdes has no known criminal history in any country and has close community and family ties to the United States such that he is not a flight risk. His individual merits hearing before the immigration court is scheduled for July 7, 2020.
9. Petitioner-Plaintiff Kelvin Armando Ulloa Escobar is a 26-year-old citizen and national of Honduras who seeks asylum in the United States due to physical and psychological persecution he has suffered in Honduras on account of his political opinions. Mr. Ulloa Escobar entered the United States on or about April 30, 2019, at which time he was detained and sent to Mexico as part of the MPP program. After suffering additional violence in Mexico and being
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denied assistance by the Mexican authorities, Mr. Ulloa Escobar re-entered the United States on or about October 30, 2019 and demonstrated a credible fear of returning to Mexico during a nonrefoulement interview. Since that time, Mr. Ulloa Escobar has been detained at the ICE Service Processing Center in El Paso, Texas, at the Cibola County Correctional Center in Milan, New Mexico, and at JCDF, where he remains in custody of ICE under 8 U.S.C. § 1226(a), a discretionary detention statute. Mr. Ulloa Escobar has no known criminal history in any country and has close community and family ties to the United States such that he is not a flight risk. Despite the looming health and safety risks he faces while detained at JCDF, Mr. Ulloa Escobar does not have an individual merits hearing scheduled before the immigration court.
10. Respondent-Defendant Chad F. Wolf is named in his official capacity as Acting Secretary of the U.S. Department of Homeland Security (“DHS”). In his official capacity, Respondent-Defendant Wolf is responsible for administering the immigration laws pursuant to 8 U.S.C. § 1103(a); routinely transacts business in the Southern District of Texas; supervises Respondent-Defendant Patrick Contreras; and is legally responsible for the pursuit of non-citizens’ detention and removal. As such, he is a legal custodian of Petitioners.
11. Respondent-Defendant ICE is a federal law enforcement agency within DHS. ICE is responsible for the criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. Enforcement and Removal Operations (“ERO”), a division of ICE, manages and oversees the immigration detention system. As such, Respondent-Defendant ICE is a legal custodian of Petitioners.
12. Respondent-Defendant Patrick Contreras is named in his official capacity as Director, Houston Field Office, ICE ERO, a federal law enforcement agency within DHS. The Houston Field Office is responsible for, among other things, carrying out ICE’s immigration detention operations at JCDF, and Respondent-Defendant Contreras is responsible for administering the immigration laws and the execution of detention and removal determinations for individuals under the jurisdiction of the Houston Field Office. As such, he is a legal custodian of Petitioners.
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13. Respondent-Defendant William P. Barr is named in his official capacity as Attorney General of the United States. In this capacity, he is responsible for administering the immigration laws as exercised by the Executive Office for Immigration Review, pursuant to 8 U.S.C. § 1103(g). He routinely transacts business in the Southern District of Texas and is legally responsible for administering removal and bond proceedings and the standards used in those proceedings. As such, he is a legal custodian of Petitioners.
14. Respondent-Defendant Randy Tate is named in his official capacity as Warden of JCDF. In this capacity, he is the immediate custodian of Petitioners.
JURISDICTION AND VENUE 15. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because this action arises under the Constitution and the laws of the United States, including the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. This Court also has subject matter jurisdiction over the habeas petition pursuant to 28 U.S.C. § 2241. 16. This Court has the authority to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201–02 and 28 U.S.C. § 1651. 17. Venue is proper in this district under 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to the claims occurred in this judicial district, and because the officer who makes custody determinations regarding Petitioners is located within this judicial district and Petitioners are detained within this judicial district. Additionally, venue is proper under 28 U.S.C. § 2241 because Petitioners are currently detained in this jurisdiction under, or by color of, the authority of the United States.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 18. No statutory exhaustion requirement applies to Petitioners’ claims of unlawful detention because no administrative agency exists to adjudicate Petitioners’ constitutional challenges. Nonetheless, Petitioners have submitted to ICE multiple requests for release in light of the dangers presented by the COVID-19 pandemic. These requests were submitted in January 2020
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(Mr. Ulloa Escobar); on March 25, 2020 (Mr. La O Munoz); and on March 27, 2020 (Mr. MoralesDiaz and Mr. Sanchez-Valdes).
19. ICE swiftly denied these requests, as well as Mr. Sanchez-Valdes’ request for redetermination, which he submitted through counsel on April 16, 2020. ICE has failed to act upon Mr. Ulloa Escobar’s redetermination request, which he submitted through counsel on April 15, 2020. In failing to release Petitioners, ICE invites the very harm that Petitioners seek to avoid.
STATEMENT OF FACTS A. COVID-19 Poses a Grave Risk of Harm to Petitioners
20. On March 11, 2020, the World Health Organization (“WHO”) classified the spread of COVID-19, the disease caused by the novel coronavirus, as a pandemic.2 On March 13, 2020, President Trump declared the COVID-19 outbreak a national emergency under the National Emergencies Act, 50 U.S.C. § 1601 et seq.3 At the time, there were approximately 1,600 confirmed cases of COVID-19 in the United States and at least 46 deaths. Just over three months later, the number of confirmed cases and deaths has exploded: as of June 23, 2020, more than 2.3 million people in the United States have tested positive for the virus, and more than 120,000 have died.4
21. To combat the disease, and to halt its advance, the White House and the Centers for Disease Control and Prevention (“CDC”) have urged people in the United States to take basic preventive actions, such as avoiding crowds or large groups, staying six feet away from others, keeping surfaces disinfected, and frequently washing hands or using hand sanitizer.5
22. Although these efforts appear to have helped slow the spread of the disease in some states where case counts have leveled off or even begun to fall, new daily infections continue to rise in Texas (among other states), which just yesterday—on June 22, 2020—reported its highest
2 World Health Org., WHO Characterizes COVID-19 as a Pandemic (Mar. 11, 2020), https://bit.ly/2W8dwpS. 3 White House, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease
(COVID-19) Outbreak (Mar. 13, 2020), https://bit.ly/35x86aT. 4 U.S. Cntrs. for Disease Control & Prevention (“CDC”), Coronavirus Disease 2019 (COVID-19): Cases in the US
(last visited June 23, 2020), https://bit.ly/2SyyE6k. 5 See Sheri Fink, White House Takes New Line After Dire Report on Death Toll, New York Times (Mar. 17, 2020),
https://nyti.ms/3dl2yD4; CDC, Coronavirus Disease 2019 (COVID-19): Clinical Questions About COVID-19: Questions and Answers (June 4, 2020), https://bit.ly/2y6X6Eh; CDC, Coronavirus Disease 2019 (COVID-19): Social Distancing (last visited June 17, 2020), https://bit.ly/2N4b5PF.
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one-day increase in new confirmed cases (5,489) in any single day in the course of the pandemic.6
In fact, the last eight days have been the eight worst on record in Texas, as measured by new
reported infections.7 In total, as of June 23, 2020, Texas has reported 120,370 cases—and 2,220
deaths—in 242 of its 254 counties.8 Montgomery County, where JCDF is located, has reported
1,647 cases and 34 deaths.9
23. As a highly contagious infectious disease, COVID-19 has proven particularly
pernicious in enclosed, high-density environments like detention and correctional facilities, which
have become “hotbeds for the virus.”10 Indeed, even as the United States’ overall infection rate has
remained relatively constant, new infections in prisons and jails “have soared in recent weeks,”
doubling since mid-May to more than 68,000, with coronavirus-related deaths also rising by 73
percent since that time.11 According to media sources, the five largest known clusters of the virus
in the United States are in correctional institutions, and Texas alone has reported more than 7,500
confirmed cases among inmates and staff at correctional facilities in the state.12
24. ICE facilities fare no better than prisons and jails. As of June 2, 2020, ICE reported
that more than half of the nearly 2,800 detainees in its custody who had been tested were confirmed
to have had the virus, and ICE facilities in Texas have reported more positive cases than facilities
in any other state.13 JCDF is no exception: as of June 22, 2020, at least 42 detainees at JCDF—or
nearly 15 percent of the overall detainee population at the facility—had tested positive for COVID-
6 See Texas Dep’t of State Health Servs., Texas Case Counts: COVID-19 (last visited June 23, 2020), https://bit.ly/37BFIWa; see also Face Mask Requirements Grow Contentious, with States and Businesses Taking Divergent Paths, N.Y. Times (June 19, 2020), https://nyti.ms/3hNnhT1; cf. Florida, Texas and Arizona All Set Records for the Most Cases They Have Reported in a Single Day, N.Y. Times (June 16, 2020), https://nyti.ms/2YHysUB.
7 Texas Dep’t of State Health Servs., Texas Case Counts: COVID-19 (last visited June 23, 2020), https://bit.ly/37BFIWa.
8 Id. 9 Id. 10 Tammy La Gorce, ‘Everybody Was Sick’: Inside an ICE Detention Facility, N.Y. Times (May 15, 2020),
available at https://nyti.ms/2UUqF4F. 11 Timothy Williams, Libby Seline & Rebecca Griesbach, Coronavirus Cases Rise Sharply in Prisons Even as They
Plateau Nationwide, N.Y. Times (June 16, 2020), available at https://nyti.ms/3fwXKeT. 12 See id. 13 See ICE, ICE Guidance on COVID-19: ICE Detainee Statistics (last visited June 23, 2020),
https://bit.ly/2YB9BBS; Olivia P. Tallet, 1 in 5 Immigrants at ICE Detention in Houston Has COVID-19, Houston Chronicle (June 3, 2020), available at https://bit.ly/2C2tidZ.
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19.14 Tragically, at least one immigrant being held at JCDF has died from the virus.15 That JCDF has emerged as a COVID-19 hotspot is hardly surprising in light of reports of abysmal conditions at the facility.16
25. Public health officials have long warned that prisons, jails, and detention facilities were positioned to “become vectors in the pandemic because they are often overcrowded, unsanitary places where social distancing is impractical, bathrooms and day rooms are shared by hundreds of [people], and access to cleaning supplies is tightly controlled.”17 Indeed, individuals who are incarcerated or detained have limited ability to take the precautionary steps that public health officials recommend as a means to guard against infection and spread, such as social distancing, mask wearing, regular hand washing, and use of adequate ventilation. They also have no control over the movements of others with whom they live in close proximity, and share spaces and resources.
26. The design and operation of detention facilities, including JCDF, make it impossible for those inside to engage in these and other prophylactic measures. If anything, facilities that house pre-trial detainees, like JCDF, are at a particularly high-risk for contagion because of substantial daily turnover among the population inside. Nor are detainees in such facilities safe from infection by a virus that originates outside the facility itself, in light of the large number of staff, contractors, and vendors who come and go on a daily basis. Moreover, detention facilities typically are not well-equipped to contain the spread of, or to treat inmates or detainees sick with, a hyper-contagious infectious disease like COVID-19.
14 See ICE, ICE Guidance on COVID-19: ICE Detainee Statistics (last visited June 23, 2020), https://bit.ly/2YB9BBS; see also Olivia P. Tallet, 1 in 5 Immigrants at ICE Detention in Houston Has COVID19, Houston Chronicle (June 3, 2020), available at https://bit.ly/2C2tidZ.
15 Olivia P. Tallet, Immigrant Held at Conroe Detention Center Died from COVID-19, Family Says, Houston Chronicle (May 14, 2020), available at https://bit.ly/3ecuxFW.
16 See, e.g., Elizabeth Trovall, Inmate Dies of COVID-19 at Facility ICE Detainees Call Cramped and Unsanitary, Houston Pub. Media (May 14, 2020), https://bit.ly/3hMrkPj (describing “inhumane conditions” at JCDF, “including poor medical care, minimal protective equipment and unsanitary and crowded dorms”).
17 Timothy Williams, Libby Seline & Rebecca Griesbach, Coronavirus Cases Rise Sharply in Prisons Even as They Plateau Nationwide, N.Y. Times (June 16, 2020), available at https://nyti.ms/3fwXKeT.
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27. Accordingly, medical and public health experts agree that reducing the number of
detainees is a critical component of risk mitigation in a pandemic.18 To that end, correctional
systems and institutions nationwide have announced (and implemented) efforts to reduce their
detained populations.19 Even ICE has recognized the importance of reducing the number of
detainees in its facilities.20 And courts across the country have ordered inmates and detainees freed
en masse, including from ICE facilities.21 As of June 18, 2020, ICE has released 486 detainees
pursuant to court order.22
28. And yet, problems persist, particularly in Texas (and at JCDF). Of the 486 ICE
detainees released pursuant to court order as of June 18, 2020, only two were detained in Texas.23
That is so even though nearly half of all ICE detainees are detained at facilities in Texas.24
Moreover, ICE has acknowledged that, as of June 22, 2020, 837 of the approximately 24,000
individuals detained in its facilities have tested positive for the virus.25 B. Conditions at JCDF Increase the Risk of Infection from COVID-19
29. Conditions at JCDF place immigrant detainees like Petitioners at risk of infection
from COVID-19.
30. As noted herein, COVID-19 is spreading rapidly through ICE detention centers
nationwide. If anything, the 837 individuals whom ICE describes as “COVID-19 positive cases
currently in custody” understates the true scope of the pandemic’s reach in ICE facilities because,
18 See United Nations News, Take ‘All Appropriate Public Health Measures’ to Protect Detainees from Coronavirus, UN Urges (May 13, 2020), https://news.un.org/en/story/2020/05/1063862.
19 See, e.g., Timothy Williams, Benjamin Weiser & William K. Rashbaum, ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), available at https://nyti.ms/37FKMZz.
20 See E-mail from Peter B. Berg, Assistant Dir., Field Operations, ICE, to ICE Field Office Dirs. and Deputy Field Office Dirs. (Apr. 4, 2020) (recommending release of detainees with certain medical conditions).
21 See, e.g., Dada v. Witte, No. 20-cv-458, 2020 WL 2614616 (W.D. La. May 22, 2020); Gayle v. Meade, No. 2021553, 2020 WL 2086482 (S.D. Fla. Apr. 30, 2020); Roman v. Wolf, No. 20-768, 2020 WL 1952656 (C.D. Cal. Apr. 23, 2020); Fraihat v. ICE, No. 19-1546, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020); In re Request to Commute or Suspend County Jail Sentences, No. 084230, 2020 WL 2831186 (N.J. Mar. 22, 2020).
22 See ICE, ICE Guidance on COVID-19: Judicial Releases (last visited June 23, 2020), https://www.ice.gov/coronavirus.
23 See id. 24 See Emily Ryo & Ian Peacock, Am. Immigration Council, The Landscape of Immigration Detention in the United
States 12 (Dec. 2018), available at https://bit.ly/3hQwMRe. 25 See ICE, ICE Guidance on COVID-19: ICE Detainee Statistics (last visited June 23, 2020),
https://www.ice.gov/coronavirus.
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although that number “includes detainees who tested positive for COVID-19 and are currently in ICE custody under isolation or monitoring,” it “excludes detainees who previously tested positive for COVID-19 and were either returned to the general population after a discontinuation of medical monitoring/isolation or are no longer in ICE custody.”26 Indeed, ICE does not report the total number of detainees who have tested positive for COVID-19 (although it was at least 1,406 as of June 2, 2020).27
31. JCDF alone has had at least 42 confirmed COVID-19 cases, equating to an infection rate among detainees of nearly 15 percent.28
32. Like other detention facilities, JCDF is an enclosed environment in which contagious diseases spread quickly and easily. Detainees live in close quarters and are subject to security measures that make it impossible for them to take the precautionary steps that medical and public health officials recommend as a means of guarding against infection. For example, the design and operation of JCDF is such that detainees are unable to practice effective (and necessary) social distancing. Further, detainees are rarely let outside, and are instead confined indoors in a facility with inadequate ventilation and where they are unable regularly to wash their hands or use hand sanitizer. Moreover, they have no control over the movements of (i) the other detainees with whom they live in close proximity and share spaces and resources, or (ii) the guards and other staff at the facility who are themselves potential carriers of the virus.29
33. It is no surprise, then, that correctional institutions and detention facilities like JCDF have become incubators for the virus. As of June 16, 2020, more than 68,000 people in state
26 Id. (emphasis added). 27 Olivia P. Tallet, 1 in 5 Immigrants at ICE Detention in Houston Has COVID-19, Houston Chronicle (June 3,
2020), available at https://bit.ly/2C2tidZ. 28 See ICE, ICE Guidance on COVID-19: ICE Detainee Statistics (last visited June 23, 2020),
https://bit.ly/2YB9BBS; see also Olivia P. Tallet, 1 in 5 Immigrants at ICE Detention in Houston Has COVID19, Houston Chronicle (June 3, 2020), available at https://bit.ly/2C2tidZ. 29 Nomaan Merchant, 2 Guards at ICE Jail Die After Contracting Coronavirus, ABC News (Apr. 29, 2020), https://abcn.ws/3dm9JdC; see also John Hudak and Christine Stenglein, As COVID-19 Spreads in ICE Detention, Oversight Is More Critical Than Ever, Brookings Inst. (May 14, 2020), available at https://brook.gs/2AMJdNv.
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and federal prisons nationwide had tested positive for COVID-19,30 and more than 520 had died.31
With approximately 7,500 inmates in its state-run prisons having tested positive, Texas has more
confirmed cases of COVID-19 among prisoners than any other state—or the federal government.32
And Texas’ 54 COVID-19-related deaths among prisoners ranks third highest among all states,
behind only Ohio and Michigan.33
34. Petitioners are especially vulnerable to infection because of the particularly
unsanitary and hazardous conditions at JCDF, which has a history of ignoring detainees’ concerns
regarding their health and safety and of providing inadequate medical treatment.34 Detainees have
described “inhumane conditions” at JCDF, including “poor medical care, minimal protective
equipment and unsanitary and crowded dorms.”35 As a result, Petitioners, who have echoed these
sentiments, including in an op-ed by Mr. La O Munoz in the Houston Chronicle,36 face imminent
and irreparable harm.
35. Petitioners report that they are unable to practice social distancing at JCDF. See
Parker Decl. ¶¶ 6, 9. They live in small, poorly ventilated dormitories that hold as many as 36
detainees, and they sleep in bunk beds that are placed fewer than six feet apart. See Parker Decl.
¶¶ 9-10. They share a communal bathroom with few sinks, toilets, and showers, and they have
sporadic—and inadequate—access to soap and no access to hand sanitizer, making it impossible
for them to follow CDC guidance regarding frequent hand washing and personal hygiene.37 See
Parker Decl. ¶¶ 7-9. They have little, if any, access to personal protective equipment like face
30 Timothy Williams, Libby Seline & Rebecca Griesbach, Coronavirus Cases Rise Sharply in Prisons Even as They Plateau Nationwide, N.Y. Times (June 16, 2020), available at https://nyti.ms/3fwXKeT.
31 See Marshall Project, A State-by-State Look at Coronavirus in Prisons (last updated June 18, 2020), https://bit.ly/2NkLIt4.
32 See id. 33 See id. 34 See Jay R. Jordan, Former Inmate Suing Joe Corley Detention Facility, Courier of Montgomery Cnty. (Apr. 16,
2016), available at https://bit.ly/2Bo15hv. 35 Elizabeth Trovall, Inmate Dies of COVID-19 at Facility ICE Detainees Call Cramped and Unsanitary, Houston
Pub. Media (May 14, 2020), https://bit.ly/3hMrkPj; see also Olivia P. Tallet, 1 in 5 Immigrants at ICE Detention in Houston Has COVID-19, Houston Chronicle (June 3, 2020), available at https://bit.ly/2C2tidZ (noting that, at JCDF, units “with a capacity of 10 or more detainees have only one toilet”). 36 Roger Ernesto La O Munoz, Op-Ed., Cuban ICE Detainee Exposes Unsafe Texas Facilities, Pleads for Release to Help Battle Coronavirus, Houston Chronicle (May 19, 2020), available at https://bit.ly/2CmhC5Y. 37 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 27, 2020), available at https://bit.ly/2YnNFuZ.
12

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masks and gloves, or to medical care. See Parker Decl. ¶¶ 6, 8, 12. And they are rarely, if ever, allowed to leave their poorly ventilated dormitories or to go outside. See Parker Decl. ¶ 10.
36. These crowded and unsanitary conditions increase the risk that Petitioners will be infected.
37. As described by Petitioners, detainees at JCDF are deprived of the supplies necessary for them to maintain basic hygiene, let alone the supplies necessary to guard against infection from COVID-19, which (according to the CDC) include no-cost access to soap, running water, hand dryers or disposable paper towels, and, where possible, hand sanitizer.38 To make matters worse, ICE does not clean the bathrooms at JCDF or provide the cleaning supplies necessary to do so properly, instead requiring detainees to do it themselves—using the soap and/or shampoo that they are supposed to use for bathing. See Parker Decl. ¶¶ 7, 9.
38. Finally, Petitioners report that guards and staff at JCDF have flouted CDC guidance regarding the use of personal protective equipment such as face masks and gloves,39 wearing them irregularly and thereby increasing the risk of exposure to COVID-19 for detainees such as Petitioners. See Parker Decl. ¶ 11. Furthermore, guards regularly go back and forth between rooms at JCDF, increasing the number of detainees with whom they interact—and the risk that they will become vectors for the virus. See Parker Decl. ¶ 11.
39. Ultimately, Petitioners have described a facility in which it is not possible for them to take adequate precautions to guard against infection from COVID-19, and in which ICE continues to exhibit a flagrant disregard for the guidance of medical and public health officials. Nevertheless, Respondents continue to hold Petitioners in conditions in which they cannot adequately protect themselves from infection, and to do so indefinitely under a discretionary detention statute.
38 See id. 39 CDC, Recommendation Regarding the Use of Cloth Face Coverings (Apr. 10, 2020), available at
https://bit.ly/2zW7r7w.
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CLAIMS FOR RELIEF FIRST CAUSE OF ACTION Violation of the Right to Substantive Due Process 40. Petitioners reallege and incorporate by reference each and every allegation in the preceding paragraphs as if set forth fully herein. 41. The Due Process Clause of the Fifth Amendment to the United States Constitution guarantees persons in civil immigration detention the right to reasonable safety and to be free from punitive conditions of confinement, and requires the government to put forth a constitutionally adequate, non-punitive purpose for continued detention. 42. The government violates this right to substantive due process when it fails to satisfy its affirmative duty to provide conditions of reasonable health and safety to the people it holds in its custody, and violates the Constitution when it fails to provide for basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety for those in custody. The government also violates the right to substantive due process when, acting with deliberate indifference, it subjects civil detainees to objectively unreasonable risks to their health and safety, to cruel treatment, or to conditions of confinement that amount to punishment. 43. By continuing to detain Petitioners at JCDF—for periods of six months or more (and counting) under a discretionary detention statute—Respondents are subjecting Petitioners to an unreasonable risk of contracting COVID-19, a sometimes lethal disease for which there is no vaccine or cure. In so doing, Respondents are acting with deliberate indifference to serious and irreparable harm. 44. By subjecting Petitioners to these risks, Respondents are maintaining detention conditions that amount to punishment and are failing to ensure Petitioners’ safety and health in violation of Petitioners’ substantive due process rights. Respondents are aware of the serious risk posed by COVID-19 and are failing to take the only action that can adequately protect Petitioners from contracting the disease, which is to release them from custody.
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45. Petitioners’ ongoing confinement is by now so prolonged that it lacks a reasonable relationship to any legitimate government purpose, including effectuating removal. Petitioners do not pose a danger to the community or a risk of flight and, in any case, these considerations alone are insufficient to countervail the risk of serious illness or death that Petitioners face if they are not released.
46. Absent judicial relief in the form of release from detention, Petitioners are suffering—and will continue to suffer—irreparable harm.
PRAYER FOR RELIEF WHEREFORE, Petitioners-Plaintiffs pray that this Court grant the following relief: A. Assume jurisdiction over this matter; B. Issue a Writ of Habeas Corpus and order Respondents to immediately release Petitioners from custody, with appropriate precautionary public health and safety measures, on the grounds that their continued, prolonged detention violates the Due Process Clause of the Fifth Amendment to the United States Constitution; C. In the alternative, issue an Order to Show Cause against Respondents as to why Petitioners should not immediately be released from custody, with appropriate precautionary public health and safety measures; D. In the alternative, enter a declaration that Respondents’ conduct is unconstitutional and unlawful and issue an injunction ordering Respondents to immediately release Petitioners from custody, with appropriate precautionary public health and safety measures, on the grounds that their continued, prolonged detention violates the Due Process Clause of the Fifth Amendment to the United States Constitution; E. Award Petitioners their reasonable attorneys’ fees and costs in this action as provided for by the Equal Access to Justice Act, 28 U.S.C. § 2412, or any other statute; and F. Any other and further relief that this Court deems just, equitable, and proper.
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Case 4:20-cv-02206 Document 1 Filed on 06/23/20 in TXSD Page 16 of 17

Dated: June 23, 2020

GIBSON, DUNN & CRUTCHER LLP

By:

/s/ Andrew LeGrand

Andrew LeGrand (Texas Bar No. 24070132)

S.D. Tex. ID No. 2827698

Pooja R. Patel (pro hac vice forthcoming)

GIBSON, DUNN & CRUTCHER LLP 2001 Ross Avenue, Suite 2100

Dallas, TX 75201

Tel: 214.698.3100

alegrand@gibsondunn.com

ppatel@gibsondunn.com

Lee Dunst (pro hac vice forthcoming) Katherine Marquart (pro hac vice forthcoming) GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, NY 10166 Tel: 212.351.4000 ldunst@gibsondunn.com kmarquart@gibsondunn.com

Nicholas M. Parker (pro hac vice forthcoming) GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 Tel: 415.393.8200 nparker@gibsondunn.com

Alayna Monroe (pro hac vice forthcoming) GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 Tel: 213.229.7000 amonroe@gibsondunn.com

Attorneys for Petitioners-Plaintiffs

16

Case 4:20-cv-02206 Document 1 Filed on 06/23/20 in TXSD Page 17 of 17
VERIFICATION BY SOMEONE ACTING ON PETITIONERS’ BEHALF PURSUANT TO 28 U.S.C. § 2242
We are submitting this verification on behalf of Petitioners as their attorneys. We have each discussed with Petitioners the events described in this Petition. On the basis of those discussions, we hereby verify that the statements made in the attached Petition for Writ of Habeas Corpus are true and correct to the best of our knowledge.
Dated: June 23, 2020 /s/ Nicholas M. Parker Nicholas M. Parker, Attorney for Petitioners
/s/ Alayna Monroe Alayna Monroe, Attorney for Petitioners

CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing Petition for Writ of Habeas Corpus via the Court’s ECF filing system and via email to the office of the United States Attorney for the Southern District of Texas. A paper copy is also being mailed to the Civil Process Clerk, United States Attorney’s Office, 1000 Louisiana Street, Suite 2300, Houston, Texas 77002.

Dated: June 23, 2020

/s/ Nicholas M. Parker Nicholas M. Parker

17

 
 Case 4:20-cv-02206 Document 9-1 Filed on 06/26/20 in TXSD Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ROGER ERNESTO LA O MUNOZ; JORGE LUIS MORALES-DIAZ; HUGO SANCHEZVALDES; KELVIN ARMANDO ULLOA ESCOBAR,
Petitioners-Plaintiffs,
vs.
CHAD F. WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; PATRICK CONTRERAS, in his official capacity as Field Office Director, Houston Field Office, Enforcement and Removal Operations, U.S. Immigration & Customs Enforcement; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; RANDY TATE, in his official capacity as Warden, Joe Corley Detention Facility,
Respondents-Defendants.

Case No. 4:20-cv-2206

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

Case 4:20-cv-02206 Document 9-1 Filed on 06/26/20 in TXSD Page 2 of 24
TABLE OF CONTENTS Page
PRELIMINARY STATEMENT ................................................................................................ 1 NATURE AND STAGE OF THE PROCEEDINGS ................................................................ 2 SUMMARY OF ISSUES ............................................................................................................. 3 SUMMARY OF ARGUMENT ................................................................................................... 4 STATEMENT OF FACTS.......................................................................................................... 4
I. COVID-19 Is a Serious, Potentially Fatal Disease and Cases Are Surging in Texas .................................................................................................................. 4
II. COVID-19 Poses a Grave Risk of Harm to Petitioners ......................................... 6 III. Conditions at JCDF Increase the Risk to Petitioners of Infection from
COVID-19.............................................................................................................. 9 IV. Release from Detention Is the Only Adequate Means of Protecting
Petitioners ............................................................................................................ 11 ARGUMENT.............................................................................................................................. 11
I. Petitioners Are Likely to Succeed on the Merits ................................................. 12 A. Petitioners’ Continued Detention Bears No Reasonable Relationship to Any Legitimate Governmental Interest .......................... 12 B. By Continuing to Detain Petitioners in Unsanitary Conditions, ICE Acts with Deliberate Indifference Toward a Violation of Their Constitutional Rights ............................................................................... 14
II. Petitioners Face Immediate, and Irreparable, Harm ............................................ 15 III. The Remaining Factors Weigh Heavily in Favor of a Temporary
Restraining Order................................................................................................. 17 CONCLUSION .......................................................................................................................... 18
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Case 4:20-cv-02206 Document 9-1 Filed on 06/26/20 in TXSD Page 3 of 24
TABLE OF AUTHORITIES
Page(s)
Cases Ali v. U.S. Dep’t of Homeland Sec.,
No. 4:20-cv-140, 2020 WL 1666074 (S.D. Tex. Apr. 2, 2020)...............................................15 Amaya-Cruz v. Adducci,
No. 1:20-cv-789, 2020 WL 1903123 (N.D. Ohio Apr. 18, 2020) ...........................................16 Ball v. Leblanc,
792 F.3d 584 (5th Cir. 2015) ...................................................................................................14 Basank v. Decker,
No. 20-Civ-2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020)......................................15, 16 Bell v. Wolfish,
441 U.S. 520 (1979).................................................................................................................12 Bent v. Barr,
No. 19-cv-06123, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020)................................................4 Boumediene v. Bush,
553 U.S. 723 (2008)...................................................................................................................3 Cadena v. El Paso Cnty.,
946 F.3d 717 (5th Cir. 2020) .............................................................................................12, 13 Carson v. Johnson,
112 F.3d 818 (5th Cir. 1997) .....................................................................................................3 Coreas v. Bounds,
No. TDC-20-0780, 2020 WL 1663133 (D. Md. Apr. 3, 2020) .................................................4 Coronel v. Decker,
No. 20-cv-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020)..............................................16 Dada v. Witte,
No. 20-cv-458, 2020 WL 2614616 (W.D. La. May 22, 2020) ..................................................8 Duvall v. Dallas Cnty., Tex.,
631 F.3d 203 (5th Cir. 2011) ...................................................................................................13 Edwards v. Johnson,
209 F.3d 772 (5th Cir. 2000) ...................................................................................................12
ii

Case 4:20-cv-02206 Document 9-1 Filed on 06/26/20 in TXSD Page 4 of 24
Fraihat v. ICE, No. 19-1546, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020) .....................................................8
Garza v. City of Donna, 922 F.3d 626 (5th Cir. 2019), cert. denied, 140 S. Ct. 651 (2019)..........................................13
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) .................................................................................................14
Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) ...................................................................................................16
Gayle v. Meade, No. 20-21553, 2020 WL 2086482 (S.D. Fla. Apr. 30, 2020) ....................................................8
Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005).....................................................................................................17
Hare v. City of Corinth, Miss., 74 F.3d 633 (5th Cir. 1996) ...............................................................................................12, 13
Helling v. McKinney, 509 U.S. 25 (1993).............................................................................................................14, 15
Hinojosa v. Livingston, 807 F.3d 657 (5th Cir. 2015) ...................................................................................................15
Humana, Inc. v. Jacobson, 804 F.2d 1390 (5th Cir. 1986) ...........................................................................................15, 16
Hutto v. Finney, 437 U.S. 678 (1978)...................................................................................................................3
INS v. St. Cyr, 533 U.S. 289 (2001)...................................................................................................................3
Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014) ...................................................................................................17
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) .................................................................................................................3
Jones v. Tex. Dep’t of Criminal Justice, 880 F.3d 756 (5th Cir. 2018) ...................................................................................................11
Kaepa, Inc. v. Achilles Corp., 76 F.3d 624 (5th Cir. 1996) .....................................................................................................18
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Case 4:20-cv-02206 Document 9-1 Filed on 06/26/20 in TXSD Page 5 of 24
Malam v. Adducci, No. 20-10829, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020) ..................................................4
Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279 (5th Cir. 2012) ...................................................................................................16
Palacios v. U.S. Dep’t of Homeland Sec., 407 F. Supp. 3d 691 (S.D. Tex. 2019) .....................................................................................11
Poree v. Collins, 866 F.3d 235 (5th Cir. 2017) .....................................................................................................3
Roman v. Wolf, No. 20-768, 2020 WL 1952656 (C.D. Cal. Apr. 23, 2020) .......................................................8
Scott v. Moore, 114 F.3d 51 (5th Cir. 1997) .....................................................................................................13
Shepherd v. Dallas Cnty., 591 F.3d 445 (5th Cir. 2009) ...................................................................................................15
Smith v. Tarrant Cnty. College Dist., 670 F. Supp. 2d 534 (N.D. Tex. 2009) ....................................................................................11
United States v. Garlock, No. 20-cr-418, 2020 WL 1439980 (N.D. Cal. Mar. 25, 2020) ................................................15
United States v. Martin, No. 19-140-13, 2020 WL 1274857 (D. Md. Mar. 17, 2020) .....................................................7
Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977) ...................................................................................................3
Zadvydas v. Davis, 533 U.S. 678 (2001).......................................................................................................3, 12, 14
Statutes 28 U.S.C. § 2241(c)(3).....................................................................................................................3
Other Authorities Case Counts (COVID-19), Tex. Dep’t of State Health Servs., https://bit.ly/3idN9Yu
(last visited June 25, 2020)..........................................................................................................4
Rules Fed. R. Civ. P. 65(b)(1)(A) ............................................................................................................11
iv

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PRELIMINARY STATEMENT Petitioners are civil immigration detainees who seek a temporary restraining order to secure their immediate release from unwarranted, prolonged detention at the Joe Corley Detention Facility (“JCDF”) in Conroe, Texas, in the midst of the COVID-19 pandemic.1 These four men—three citizens of Cuba and one of Honduras, none of whom has a criminal record of any kind in any country—have each been detained by U.S. Immigration and Customs Enforcement (“ICE”) for at least six months pursuant to a discretionary detention statute, and are now trapped in a facility that has seen a surge in COVID-19 infections rivaling that of any other detention facility nationwide. As has been well-documented in the media—and by ICE itself—the virus that causes COVID-19 runs rampant in such facilities, creating a risk of harm to Petitioners that is both unconscionably high and entirely preventable. Indeed, the pandemic has wreaked particular devastation on those, like Petitioners, detained at JCDF: as of June 24, 2020, at least 42 detainees at JCDF have tested positive for COVID-19 and at least one detainee there has died as a result of the virus. And as COVID-19 cases surge in Texas, the risks that Petitioners face at JCDF are ever more acute. Infectious disease specialists warn that no conditions of confinement can adequately mitigate or reduce the risk of harm to detainees during the COVID-19 pandemic. Packed into overcrowded, close quarters with other detainees and correctional staff; forced to share necessities like showers, toilets, sinks, and telephones with dozens of others; and deprived of basic forms of preventative hygiene such as soap, hand sanitizer, or adequate personal protective equipment, Petitioners are helpless to take the only risk-mitigation steps known to limit transmission of the virus. Medical experts agree that reducing populations in prisons, jails, and detention centers is a necessary component of risk mitigation during the pandemic. A failure to heed public health advice
1 Undersigned counsel has conferred with counsel for Respondents, who has stated that ICE opposes this motion.
1

Case 4:20-cv-02206 Document 9-1 Filed on 06/26/20 in TXSD Page 7 of 24
to reduce inmate and detainee populations will not only harm the inmates and detainees, but will also have ripple effects across communities as rapid transmission of the disease taxes already overburdened hospitals and healthcare systems—indeed, it already has.
It is against this backdrop that ICE has refused to release Petitioners on parole without any meaningful explanation, despite Petitioners’ demonstrated ties to the United States and lack of any criminal record whatsoever. Faced with a global pandemic that may imminently overwhelm Texas’ healthcare system, ICE steadfastly has refused to act, despite the reality that its failure to do so exacerbates the risks faced by Petitioners and other detainees in its custody at JCDF and elsewhere.
Release from custody is the only effective means to protect Petitioners from the heightened risk they face of contracting the virus that causes COVID-19 at JCDF. Indeed, by electing to detain Petitioners indefinitely—for periods of six months or more (and counting)—despite the many factors militating in favor of their release, ICE violates Petitioners’ due process rights by showing deliberate indifference to their health and safety and by failing to provide constitutionally adequate safeguards commensurate with the deprivation of life and liberty that they face. Accordingly, Petitioners seek the only relief that remains available to them: a temporary restraining order from this Court ordering their immediate release from detention.
NATURE AND STAGE OF THE PROCEEDINGS On June 23, 2020, Petitioners filed a Verified Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief on the grounds that their continued, prolonged detention violates their due process rights under the Fifth Amendment to the United States Constitution. See ECF No. 1. Petitioners—all of whom have been in custody of ICE for at least six months despite their strong ties to the United States and their lack of a criminal record—now seek a temporary restraining order requiring their immediate release from detention.
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SUMMARY OF ISSUES Petitioners seek a temporary restraining order directing Respondents to release them from detention immediately as a remedy for the ongoing violation of their Fifth Amendment due process rights that is a result of their continued, prolonged confinement at JCDF. This Court has the authority to order Petitioners’ release. Courts have broad power to fashion equitable remedies to address constitutional violations in correctional institutions, see Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978), and “when constitutional violations of rights of individuals . . . are brought to [a court’s] attention,” the court is “bound to redress them,” Williams v. Edwards, 547 F.2d 1206, 1218 (5th Cir. 1977). Federal law confers on district courts jurisdiction over petitions for habeas corpus where the petitioner is “in custody in violation of the Constitution or law or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also INS v. St. Cyr, 533 U.S. 289, 305 (2001). And habeas is an appropriate vehicle through which noncitizen, civil immigration detainees may challenge the fact of their confinement. See Zadvydas v. Davis, 533 U.S. 678, 688 (2001); see also Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (ruling on merits of petition challenging validity of indefinite mandatory detention). Moreover, while it is often challenges to the “fact or duration of confinement” that are brought in habeas proceedings, Poree v. Collins, 866 F.3d 235, 242-43 (5th Cir. 2017), the Supreme Court has not foreclosed the use of habeas for conditions-of-confinement claims, see Boumediene v. Bush, 553 U.S. 723, 792 (2008), and the Fifth Circuit has not limited habeas petitions to “fact or duration” challenges, see Poree, 866 F.3d at 243-44 & n.28 (describing Fifth Circuit precedent on the subject as “less clear”). Indeed, the Fifth Circuit has said that habeas is appropriate if a ruling in the petitioner’s favor would “automatically entitle [the petitioner] to accelerated release.” Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997). Moreover, courts across the country have ordered ICE detainees immediately released under writs of habeas corpus during
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the COVID-19 pandemic. See, e.g., Bent v. Barr, No. 19-cv-06123, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020); Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *2-3 (E.D. Mich. Apr. 5, 2020); Coreas v. Bounds, No. TDC-20-0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020).
SUMMARY OF ARGUMENT In light of the conditions of their confinement at JCDF, and of the recent (and ongoing) explosion of COVID-19 cases in Texas, Petitioners face an imminent threat that, unless this Court orders their immediate release, they will contract the virus that causes COVID-19 and suffer grave injury or death. ICE’s continued, prolonged confinement of Petitioners under a discretionary detention statute and in unsanitary, unhygienic conditions violates Petitioners constitutional due process rights and is not rationally related to any legitimate government purpose. Moreover, continued detention of Petitioners—all of whom have strong ties to the United States and none of whom has a criminal record of any kind in any country—is not in the public interest, particularly as COVID-19 cases surge in Texas and threaten to overwhelm the state’s healthcare system.
STATEMENT OF FACTS I. COVID-19 Is a Serious, Potentially Fatal Disease and Cases Are Surging in Texas
As of June 25, 2020, more than 121,800 people in the United States have died from COVID-19, the disease caused by the novel coronavirus, and more than 2.3 million have tested positive for the virus. See Monroe Decl., Ex. 1. In Texas, where Petitioners are detained, cases are spiking: the Texas Department of State Health Services has reported 17,036 new infections in just the last three days, a staggering figure that represents more than 12.9 percent of all infections in Texas during the entire course of the pandemic.2 In fact, the last 10 days have been the 10 worst on record in Texas, as measured by new reported infections. See id.
2 See Case Counts (COVID-19), Tex. Dep’t of State Health Servs., https://bit.ly/3idN9Yu (last visited June 25, 2020).
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COVID-19 is a highly contagious infectious disease that spreads, perhaps among other means, through respiratory droplets that infected individuals emit when they cough or sneeze and through contact with surfaces or objects where the virus is present. See Monroe Decl., Ex. 3. Among other effects, COVID-19 may severely damage lung tissue, requiring an extensive period of rehabilitation and in some cases causing a permanent loss of respiratory capacity and/or death. See Monroe Decl., Ex. 5. It may also cause heart problems, including myocarditis (inflammation of the heart muscle) and/or myocardial infarction, including in individuals who do not have preexisting risk factors or comorbidities. See Monroe Decl., Exs. 6-7. Although the full scope of the dangers presented by COVID-19 remains uncertain, evidence increasingly suggests that the virus may send the immune system into overdrive, causing organ damage or failure and neurologic injury. See Monroe Decl., Ex. 8. Moreover, the virus can wreak havoc with astonishing speed—some patients who are infected begin to exhibit symptoms within two days of exposure, and their condition can deteriorate rapidly within as few as five days. See Monroe Decl., Exs. 4, 9.
Because there is no known treatment for the disease, much less a vaccine, the only method of preventing serious complications and/or death from COVID-19 is to prevent infection in the first place. See Monroe Decl., Ex. 10. To minimize the risk of infection, public health experts have urged people in the United States to take basic preventive actions, such as avoiding crowds or large groups, staying six feet away from others, keeping surfaces disinfected, frequently washing hands or using hand sanitizer, and wearing face masks and gloves in certain circumstances. See Monroe Decl., Exs. 10-11. Accordingly, public health officials in all 50 states have declared emergencies, or otherwise taken action to stop the spread of the virus. See Monroe Decl., Ex. 12. And although Texas was among the first states to ease those constraints, cases there presently are increasing at an alarming rate and Gov. Greg Abbott has acknowledged that the state is facing a “massive
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outbreak” that may require the re-imposition of restrictions on people’s movement as authorities scramble to contain the virus and to prevent hospitals’ intensive care units (“ICUs”) from becoming overwhelmed. See Monroe Decl., Exs. 13, 21, 24. II. COVID-19 Poses a Grave Risk of Harm to Petitioners
Even as cases skyrocket statewide in Texas, the situation in and around Houston, where Petitioners are detained, is particularly dire: Harris and Montgomery Counties have reported more than 27,600 of the state’s approximately 132,000 total cases (and 382 of its 2,296 deaths), and the area’s ICUs are now filled to 97 percent of capacity. See Texas Department of State Health Services, supra note 2; Monroe Decl., Ex. 22.
Moreover, COVID-19 has proven particularly pernicious in enclosed, high-density environments like detention and correctional facilities, which have become “hotbeds for the virus.” Monroe Decl., Ex. 23. Indeed, even as the United States’ overall infection rate has remained relatively constant, new infections in prisons and jails “have soared in recent weeks,” doubling since mid-May to more than 68,000, with coronavirus-related deaths also rising by 73 percent since that time. Monroe Decl., Ex. 25. According to media sources, the five largest known clusters of the virus in the United States are in correctional institutions, and Texas has reported more confirmed cases of COVID-19 (more than 7,500) among inmates and staff at its state-run facilities than any other state—or the federal government. See id.; Monroe Decl., Ex. 33.
ICE facilities fare no better than prisons and jails. As of June 2, 2020, ICE reported that more than half of the nearly 2,800 detainees in its custody who had been tested were confirmed to have had the virus, and ICE facilities in Texas have reported more positive cases than facilities in any other state. See Monroe Decl., Exs. 14-15. JCDF is no exception: as of June 24, 2020, at least 42 detainees at JCDF—or nearly 15 percent of the overall detainee population at the facility—had tested positive for COVID-19. See Monroe Decl., Exs. 14-15. Tragically, at least one immigrant
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being held at JCDF has died from the virus. See Monroe Decl., Ex. 26. That JCDF has emerged as a COVID-19 hotspot is hardly surprising in light of reports of abysmal conditions at the facility. See Monroe Decl., Ex. 27 (describing “inhumane conditions” at JCDF, “including poor medical care, minimal protective equipment and unsanitary and crowded dorms”).
Public health officials have long warned that prisons, jails, and detention facilities were positioned to “become vectors in the pandemic because they are often overcrowded, unsanitary places where social distancing is impractical, bathrooms and day rooms are shared by hundreds of [people], and access to cleaning supplies is tightly controlled.” Monroe Decl., Ex. 25; see also id. Ex. 16, at 3 (“One of the risks of detention of immigrants in congregant settings is the rapid spread of infectious diseases.”). Indeed, individuals who are incarcerated or detained have limited ability to take the precautionary steps that public health officials recommend as a means to guard against infection and spread, such as social distancing, mask wearing, regular hand washing, and use of adequate ventilation. See, e.g., United States v. Martin, No. 19-140-13, 2020 WL 1274857, at *2 (D. Md. Mar. 17, 2020) (“With no known effective treatment, and vaccines months (or more) away, public health officials have been left to urge the public to practice ‘social distancing,’ frequent (and thorough) hand washing, and avoidance of close contact with others (in increasingly more restrictive terms)—all of which are extremely difficult to implement in a detention facility.”). They also have no control over the movements of others with whom they live in close proximity, and they are required to share spaces and resources.
The design and operation of detention facilities, including JCDF, make it impossible for those inside to engage in the kinds of prophylactic measures recommended by public health experts. If anything, facilities that house pretrial detainees, like JCDF, are at a particularly high risk for contagion because of the substantial daily turnover among the population inside. Nor are detainees
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in such facilities safe from infection by a virus that originates outside the facility itself, in light of the large number of staff, contractors, and vendors who come and go on a daily basis. Moreover, detention facilities typically are not well-equipped to contain the spread of, or to treat inmates or detainees sick with, a hyper-contagious infectious disease like COVID-19.
Accordingly, medical and public health experts agree that reducing the number of detainees is a critical component of risk mitigation in a pandemic. See Monroe Decl., Ex. 28. To that end, correctional systems and institutions nationwide have announced (and implemented) efforts to reduce their detained populations. See Monroe Decl., Ex. 29. Even ICE has recognized the importance of reducing the number of detainees in its facilities. See Monroe Decl., Ex. 30 (recommending release of detainees with certain medical conditions). And courts across the country have ordered inmates and detainees freed en masse, including from ICE facilities. See, e.g., Dada v. Witte, No. 20-cv-458, 2020 WL 2614616 (W.D. La. May 22, 2020); Gayle v. Meade, No. 20-21553, 2020 WL 2086482 (S.D. Fla. Apr. 30, 2020); Roman v. Wolf, No. 20-768, 2020 WL 1952656 (C.D. Cal. Apr. 23, 2020); Fraihat v. ICE, No. 19-1546, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020). As of June 25, 2020, ICE has released 490 detainees pursuant to court order. See Monroe Decl., Ex. 31.
And yet, problems persist, particularly in Texas (and at JCDF). Of the 490 ICE detainees released pursuant to court order as of June 25, 2020, only two were detained in Texas. See Monroe Decl., Ex. 31. That is so even though nearly half of all ICE detainees are detained at facilities in Texas. Monroe Decl., Ex. 32. And ICE has acknowledged that, as of June 24, 2020, 810 of the approximately 23,500 individuals currently detained in its facilities have tested positive for the virus. See Monroe Decl., Ex. 14.
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III. Conditions at JCDF Increase the Risk to Petitioners of Infection from COVID-19 COVID-19 is spreading rapidly through correctional institutions and detention facilities,
which have become incubators for the virus. As of June 16, 2020, more than 68,000 people in state and federal prisons nationwide had tested positive for COVID-19, and more than 520 had died. See Monroe Decl., Exs. 25, 33. ICE does not report the total number of detainees who have tested positive for COVID-19—although it was at least 1,406 as of June 2, 2020, see Monroe Decl., Ex. 15—but, if anything, the 810 individuals whom ICE describes as “COVID-19 positive cases currently in custody” likely understates the true scope of the virus’ reach in ICE facilities because, although that number “includes detainees who tested positive for COVID-19 and are currently in ICE custody under isolation or monitoring,” it “excludes detainees who previously tested positive for COVID-19 and were either returned to the general population after a discontinuation of medical monitoring/isolation or are no longer in ICE custody.” See Monroe Decl., Ex. 14.
Like other detention facilities, JCDF is an enclosed environment in which contagious diseases spread quickly and easily, placing immigrant detainees like Petitioners at a heightened risk of infection from the virus. Detainees at JCDF live in close quarters and are subject to security measures that make it impossible for them to take the precautionary steps that medical and public health officials recommend as a means of guarding against infection.
For example, Petitioners are unable to practice effective (and necessary) social distancing at JCDF. See Parker Decl. ¶¶ 6, 9. They live in small, poorly ventilated dormitories that hold as many as 36 detainees, and they sleep in bunk beds that are placed fewer than six feet apart. See Parker Decl. ¶¶ 9-10. They share a communal bathroom with few sinks, toilets, and showers, and they have sporadic—and inadequate—access to soap and no access to hand sanitizer, making it impossible for them to follow CDC guidance regarding frequent hand washing and personal hygiene. See Parker Decl. ¶¶ 7-9; Monroe Decl., Ex. 17. They have little, if any, access to personal
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protective equipment like face masks and gloves, or to medical care. See Parker Decl. ¶¶ 6, 8, 12. And they are rarely, if ever, allowed to leave their poorly ventilated dormitories or to go outside. See Parker Decl. ¶ 10. Moreover, they have no control over the movements of (i) the other detainees with whom they live in close proximity and share spaces and resources, or (ii) the guards and other staff at the facility who are themselves potential carriers of the virus and who have flouted CDC guidance regarding the use of personal protective equipment such as face masks and gloves. See Parker Decl. ¶ 11; Monroe Decl., Exs. 18, 34, 35.
Ultimately, detainees at JCDF are deprived of the supplies necessary for them to maintain basic hygiene, let alone the supplies necessary to guard against infection from the virus that causes COVID-19, which (according to the CDC) include no-cost access to soap, running water, hand dryers or disposable paper towels, and, where possible, hand sanitizer. See Monroe Decl., Ex. 17. To make matters worse, ICE does not clean the bathrooms at JCDF or provide the cleaning supplies necessary to do so properly, instead requiring detainees to do it themselves—using the soap and/or shampoo that they are supposed to use for bathing. See Parker Decl. ¶¶ 7, 9. These crowded and unsanitary conditions increase the risk that Petitioners will be infected.
Petitioners are especially vulnerable to infection because of the particularly unsanitary and hazardous conditions at JCDF, which has a history of ignoring detainees’ concerns regarding their health and safety and of providing inadequate medical treatment. See Monroe Decl., Ex. 36. Detainees have described “inhumane conditions” at JCDF, including “poor medical care, minimal protective equipment and unsanitary and crowded dorms.” Monroe Decl., Ex. 27; see also id. Ex. 15 (noting that, at JCDF, units “with a capacity of 10 or more detainees have only one toilet”). Petitioners have echoed these sentiments, including in an op-ed by Mr. La O Munoz in the Houston Chronicle. See Monroe Decl., Ex. 2. By continuing to detain Petitioners in conditions in which
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they cannot adequately protect themselves from infection (and as COVID-19 cases surge in Texas), and to do so indefinitely under a discretionary detention statute, ICE exhibits a flagrant disregard for the guidance of medical and public health officials and subjects Petitioners to imminent and irreparable harm. IV. Release from Detention Is the Only Adequate Means of Protecting Petitioners
As even former Acting Director of ICE John Sandweg has acknowledged, release from detention is the only relief adequate to protect Petitioners from the risks they face from continued, prolonged detention at JCDF and to vindicate their constitutional rights. See Monroe Decl., Ex. 19 (“ICE can, and must, reduce the risk [COVID-19] poses to so many people, and the most effective way to do so is to drastically reduce the number of people it is currently holding.”).
ARGUMENT Petitioners meet each of the four requirements for issuance of a temporary restraining order because they have shown: “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the [temporary restraining order] is not issued, (3) that the threatened injury if the [temporary restraining order] is denied outweighs any harm that will result if [it] is granted, and (4) that the grant of a [temporary restraining order] will not disserve the public interest.” Jones v. Tex. Dep’t of Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018) (internal quotation marks omitted); see also Palacios v. U.S. Dep’t of Homeland Sec., 407 F. Supp. 3d 691, 696-97 (S.D. Tex. 2019) (citing Jones and noting that the same standard applies, whether the movant seeks a temporary restraining order or a preliminary injunction). Indeed, Petitioners have demonstrated that they “will suffer ‘immediate and irreparable injury’ without injunctive relief,” thereby meriting a temporary restraining order. Smith v. Tarrant Cnty. College Dist., 670 F. Supp. 2d 534, 537 (N.D. Tex. 2009) (quoting Fed. R. Civ. P. 65(b)(1)(A)).
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Immediate release from detention is the only adequate means to protect Petitioners’ health and safety and to vindicate their due process rights. By continuing to detain Petitioners at JCDF, ICE exposes them to a life-threatening infectious disease in a constitutionally intolerable manner, causing irreparable harm. Moreover, there is an overwhelming public interest in limiting the spread of COVID-19, both to minimize further infections and to reduce the strain on overburdened healthcare systems. Finally, the balance of equities weighs heavily in favor of Petitioners, whose health and lives are at stake. I. Petitioners Are Likely to Succeed on the Merits
Petitioners’ continued, prolonged detention at JCDF violates their due process rights under the Fifth Amendment to the United States Constitution. Civil immigration detainees are entitled to the same due process protections as pretrial detainees. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000) (“We consider a person detained for deportation to be the equivalent of a pretrial detainee; a pretrial detainee’s constitutional claims are considered under the due process clause instead of the Eighth Amendment.”). Thus, ICE may not subject Petitioners to conditions that bear no reasonable relationship to a legitimate governmental interest. See Cadena v. El Paso Cnty., 946 F.3d 717, 727 (5th Cir. 2020). Nor may ICE act with deliberate indifference toward violations of Petitioners’ constitutional rights. See id. By continuing to detain Petitioners in conditions that do not permit adequate social distancing and do not provide for adequate hygiene, ICE fails Petitioners on both counts.
A. Petitioners’ Continued Detention Bears No Reasonable Relationship to Any Legitimate Governmental Interest
It is axiomatic that “the State cannot punish a pretrial detainee.” Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996); see also Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). The same is true of civil detainees. See Cadena, 946 F.3d at 727. And when pretrial or civil detainees’
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conditions of confinement bear “no reasonable relationship to a legitimate governmental interest,” they “amount to punishment” in violation of the detainees’ due process rights. Duvall v. Dallas Cnty., Tex., 631 F.3d 203, 207 (5th Cir. 2011); see also Garza v. City of Donna, 922 F.3d 626, 632 (5th Cir. 2019), cert. denied, 140 S. Ct. 651 (2019). Moreover, the Fifth Circuit has acknowledged that knowingly detaining individuals in conditions where a highly contagious, sometimes-lethal infectious disease is present bears no reasonable relationship to a legitimate governmental purpose. See Duvall, 631 F.3d at 207 (accepting the parties’ stipulation to that effect regarding the presence of dangerous bacteria in a jail). Indeed, in such cases, “it is assumed that ‘by the [defendant’s] very promulgation and maintenance of the complained-of condition . . . it intended to cause the alleged constitutional deprivation.’” Cadena, 946 F.3d at 727 (quoting Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997) (en banc)); see also Duvall, 631 F.3d at 207 (“[T]he law is well settled that even where a State may not want to subject a detainee to inhumane conditions of confinement or abusive jail practices, its intent to do so is nevertheless presumed when it incarcerates the detainee in the face of such known conditions and practices” (internal quotation marks omitted)); Hare, 74 F.3d at 644 (“[I]n the face of [an] inadequately controlled [communicable disease] contamination,” the government’s “continued . . . hous[ing of] inmates,” “refus[al] to install the necessary hand washing and disinfecting stations,” and “fail[ure] to use alcohol-based hand sanitizers” are “conditions of confinement.”).
Dozens of detainees at JCDF have tested positive for COVID-19, and that number is poised to rise as the virus surges in Texas. Conditions at JCDF are unsanitary. ICE has been derelict in its duties to maintain clean living conditions and to provide detainees with adequate personal protective equipment and/or cleaning supplies, and the cramped quarters make it impossible for Petitioners and other detainees to engage in social distancing or otherwise to follow the guidance
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of public health officials. ICE’s efforts to confine Petitioners at JCDF indefinitely under a discretionary detention statute in the midst of the COVID-19 pandemic and in spite of the demonstrably unhygienic conditions at the facility serves no legitimate governmental purpose and is not reasonably related to enforcement of the immigration laws. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (“There is no sufficiently strong special justification for indefinite civil detention.”). All Petitioners have strong ties to the United States, such that they are not flight risks, and none has a criminal record of any kind in any country. If ICE’s interest in effectuating Petitioners’ removal from the United States cannot justify indefinite detention, nor can it justify the “potentially permanent” harm (including serious injury, illness, or death) that Petitioners face at JCDF. See id. at 690-91. That is especially so in light of the overwhelming evidence that continuing to detain Petitioners at JCDF needlessly increases the risk that Petitioners will be exposed to, and contract, the virus that causes COVID-19.
B. By Continuing to Detain Petitioners in Unsanitary Conditions, ICE Acts with Deliberate Indifference Toward a Violation of Their Constitutional Rights
Similarly, ICE violates Petitioners’ due process rights by maintaining unsanitary living conditions at JCDF that, under present circumstances, are “tantamount to the infliction of cruel and unusual punishment” because they “pose ‘an unreasonable risk of serious damage’ to [Petitioners’] health” and because ICE has “acted with deliberate indifference to the risk posed.” Ball v. Leblanc, 792 F.3d 584, 592 (5th Cir. 2015) (quoting Helling v. McKinney, 509 U.S. 25, 33-35 (1993)).
The Supreme Court and the Fifth Circuit have recognized that the government tramples on the Constitution when it crowds prisoners (or detainees) into cells with others who have “infectious maladies,” “even though the possible infection might not affect all of those exposed.” McKinney, 509 U.S. at 33; see also Gates v. Collier, 501 F.2d 1291, 1300 (5th Cir. 1974) (holding that conditions of confinement violated the Constitution where “[u]nsanitary conditions [we]re rampant”
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and “[s]ome inmates with serious contagious diseases [we]re allowed to mingle with the general prison population”). And the Fifth Circuit has held that deliberate indifference may be inferred from “the open and obvious nature of” conditions that pose a risk to health and safety. Hinojosa v. Livingston, 807 F.3d 657, 667 (5th Cir. 2015).
By continuing to detain Petitioners at JCDF—and by failing to take sufficient steps to mitigate the risk to Petitioners of infection from the virus that causes COVID-19—ICE is engaging in a “pervasive pattern of serious deficiencies,” Shepherd v. Dallas Cnty., 591 F.3d 445, 454 (5th Cir. 2009), and acting with deliberate indifference to “an unreasonable risk of serious damage to [Petitioners’] health” in violation of their constitutional rights. McKinney, 509 U.S. at 35. Indeed, courts around the country, including this one, have recognized that “[t]he risk of contracting COVID-19 in tightly-confined spaces, especially jails, is now exceedingly obvious.” Basank v. Decker, No. 20-Civ-2518, 2020 WL 1481503, at *5 (S.D.N.Y. Mar. 26, 2020); see also Ali v. U.S. Dep’t of Homeland Sec., No. 4:20-cv-140, 2020 WL 1666074, at *5 (S.D. Tex. Apr. 2, 2020) (“[T]imely release” of “individuals housed within detention centers,” who “remain particularly vulnerable to infections,” is “especially important now during the COVID-19 pandemic.”); United States v. Garlock, No. 20-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.”). Indeed, the Fifth Amendment does not permit civil detention to become a death sentence. II. Petitioners Face Immediate, and Irreparable, Harm
Threat of imminent harm warrants immediate relief. But a party seeking immediate injunctive relief need only show “a significant threat” of “imminent” injury. Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986). By contrast, the party need not show that the threatened harm has already occurred. See McKinney, 509 U.S. at 33 (explaining that “a prison inmate . . . could
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successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery” and noting that “[i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them”); Gates v. Cook, 376 F.3d 323, 339 (5th Cir. 2004) (holding that a prisoner “does not need to show that death or serious illness has yet occurred to obtain relief”). Nor must the party show “that harm is inevitable.” Jacobson, 804 F.2d at 1394. With these precepts in mind, several courts nationwide recently have determined that the elevated risk of infection that civil detainees face at ICE facilities constitutes irreparable harm warranting issuance of a temporary restraining order. See, e.g., Amaya-Cruz v. Adducci, No. 1:20-cv-789, 2020 WL 1903123 (N.D. Ohio Apr. 18, 2020); Coronel v. Decker, No. 20-cv-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Basank, 2020 WL 1481503, at *4 (“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.”).
Petitioners have demonstrated that COVID-19 has infiltrated, and spread within, JCDF and that, by maintaining an overcrowded and unsanitary facility, ICE has failed to mitigate or control the risk that Petitioners face of contracting the virus while detained there. Given that the virus is highly contagious and easily communicable, and that cases in Texas presently are surging to unprecedented levels, the risk that Petitioners will become infected if they remain detained at JCDF is real—and imminent. Moreover, because COVID-19 is a life-threatening disease with no cure or vaccine, Petitioners are at great risk of serious illness or death if they do become infected. Of course, ICE’s ongoing violation of Petitioners’ constitutional due process rights is itself an irreparable injury. See, e.g., Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” (internal quotation marks omitted)).
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III. The Remaining Factors Weigh Heavily in Favor of a Temporary Restraining Order The public interest and balance of the equities overwhelmingly favor Petitioners’ immediate
release. First, and fundamentally, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014) (internal quotation marks omitted). Moreover, the public has a further interest in minimizing the spread of COVID-19, which overlaps with Petitioners’ interest—both Petitioners and the public benefit from ensuring individual and community health and safety. See Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest[]”). Further, the general public—including JCDF staff and their families—benefits from the release of detainees, like Petitioners, who do not pose an immediate risk to public safety, because they are less likely to become ill outside JCDF and, thus, less likely to contribute to the burden that is already taxing the public health system in surrounding communities. See Monroe Decl., Ex. 16, at 6 (“[A]cting immediately” to reduce detainee populations “will save lives of not only those detained, but also detention staff and their families, and the community-at-large.”).
Finally, the balance of equities tilts heavily in favor of Petitioners’ release. Whatever minimal interest Respondents may assert in Petitioners’ continued detention, it is outweighed by the serious risk of illness (and, potentially, death) that Petitioners—not to mention other detainees, JCDF staff, and the public at large—face from COVID-19 if Petitioners remain detained in violation of their constitutional due process rights. Moreover, ICE has several tools available to it, beyond physical detention, to meet its enforcement goals. For example, ICE’s Intensive Supervision Appearance Program relies on the use of electronic ankle monitors, biometric voice recognition software, unannounced home visits, employer verification, and in-person reporting to supervise participants and to ensure they attend court proceedings. A government-commissioned
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evaluation of this program reported a 99 percent attendance rate at all immigration court hearings and a 95 percent attendance rate at final hearings. See Monroe Decl., Ex. 20.
CONCLUSION For the foregoing reasons, Petitioners respectfully request that this Court grant their Motion for Temporary Restraining Order and order their immediate release from detention.3

Dated: June 26, 2020

GIBSON, DUNN & CRUTCHER LLP

By:

/s/ Andrew LeGrand

Andrew LeGrand (Texas Bar No. 24070132)

S.D. Tex. ID No. 2827698

Pooja R. Patel (pro hac vice pending)

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, TX 75201

Tel: 214.698.3100

alegrand@gibsondunn.com

ppatel@gibsondunn.com

Lee Dunst (pro hac vice pending) Katherine Marquart (pro hac vice pending) GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, NY 10166 Tel: 212.351.4000 ldunst@gibsondunn.com kmarquart@gibsondunn.com

Nicholas M. Parker (pro hac vice pending) GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 Tel: 415.393.8200 nparker@gibsondunn.com

3 As detained individuals seeking to enforce their civil rights, Petitioners request that this Court exercise its discretion not to require them to post a bond in connection with the relief they seek. See, e.g., Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996).
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Case 4:20-cv-02206 Document 9-1 Filed on 06/26/20 in TXSD Page 24 of 24 Alayna Monroe (pro hac vice pending) GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 Tel: 213.229.7000 amonroe@gibsondunn.com Attorneys for Petitioners-Plaintiffs
19

 
 Case 4:20-cv-02206 Document 19 Filed on 06/30/20 in TXSD Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ROGER ERNESTO LA O MUNOZ, §

et al.,

§

Petitioner,

§

§

v.

§

§

CHAD F. WOLF, et al.,

§

Respondents.

§

§

Civil No. 4:20-cv-2206

RESPONDENTS’ RESPONSE TO TEMPORARY RESTRAINING ORDER
RYAN K. PATRICK United States Attorney
By: Ariel N. Wiley Assistant United States Attorney Attorney-in-Charge Southern District No. 2554283 Texas Bar No. 24093366 1000 Louisiana Street, Suite 2300 Houston, Texas 77002 Tel.: (713) 567-9000 Fax: (713) 718-3303 Email: Ariel.Wiley@usdoj.gov
Counsel for Respondents/Defendants

Case 4:20-cv-02206 Document 19 Filed on 06/30/20 in TXSD Page 2 of 21

TABLE OF CONTENTS

Table of Contents ............................................................................................................................................... i

Table of Authorities...........................................................................................................................................ii

Exhibits................................................................................................................................................................ v

Introduction and Summary ..............................................................................................................................1

Factual and Procedural Background ...............................................................................................................2

Issues.................................................................................................................................................................... 4

Standard ............................................................................................................................................................... 5

Argument ............................................................................................................................................................5

I.

Petitioners’ habeas motion is unlikely to succeed on the merits. .........................................5

A.

Under Fifth Circuit precedent, Petitioners cannot invoke habeas corpus to

challenge the conditions of their confinement. ....................................................5

B.

Petitioners’ direct constitutional claims seeking release are not cognizable,

and, even if they were, the facts here do not support a constitutional

violation. .....................................................................................................................8

II.

Petitioners will not suffer an irreparable injury if the temporary restraining order is

denied. .........................................................................................................................................13

III.

Petitioners’ proposed injunction will disserve the public interest. .....................................13

Conclusion ........................................................................................................................................................14

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TABLE OF AUTHORITIES Page(s)
Cases Alexander v. Trump,
753 F. App’x 201 (5th Cir. 2018).................................................................................................................8
Bell v. Wolfish, 441 U.S. 520 (1979) .......................................................................................................................................8
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) ...................................................................................................................................6, 8
Dawson v. Asher, 2020 WL 1704324 (W.D. Wash. Apr. 8, 2020)........................................................................................13
Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752 (5th Cir. 2001) ........................................................................................................................9
Gobert v. Caldwell, 463 F.3d 339 (5th Cir. 2006) ........................................................................................................................9
Guy Carpenter & Co. v. Provenzale, 334 F.3d 459 (5th Cir. 2003) ........................................................................................................................5
Hearth, Inc. v. Dep’t of Public Welfare, 617 F.2d 381 (5th Cir. 1980) ........................................................................................................................8
Hernandez v. Garrison, 916 F.2d 291 (5th Cir. 1990) ........................................................................................................................6
Jorge V. S. v. Green, 2020 WL 1921936 (D.N.J. Apr. 21, 2020) ...............................................................................................13
Livas v. Myers, 2020 WL 1939583 (W.D. La. Apr. 22, 2020) .........................................................................................6, 7
Martinez v. Mathews, 544 F.2d 1233 (5th Cir. 1976) ......................................................................................................................5
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Nken v. Holder, 556 U.S. 418 (2009) .....................................................................................................................................14
Northup v. Thaler, 2012 WL 4068676 (S.D. Tex. Aug. 7, 2012) ..............................................................................................6
Parker v. Ryan, 960 F.2d 543 (5th Cir. 1992) ........................................................................................................................5
Patrick v. Whitaker, 2019 WL 588465, n.36 (S.D. Tex. 2019) ....................................................................................................7
Pierre v. United States, 525 F.2d 933 (5th Cir. 1976) ....................................................................................................................6, 7
Poree v. Collins, 866 F.3d 235 (5th Cir. 2017) ........................................................................................................................6
Rivera Rosa v. McAleenan, 2019 WL 5191095 (S.D. Tex. 2019)............................................................................................................7
Rourke v. Thompson, 11 F.3d 47 (5th Cir. 1993).........................................................................................................................6, 7
Sacal-Micha v. Longoria, 2020 WL 1815691 n.6 (S.D. Tex. Apr. 9, 2020) ......................................................................... 6, 7, 8, 13
Sarres Mendoza v. Barr, 2019 WL 1227494 (S.D. Tex. 2019)............................................................................................................7
Schipke v. Van Buran, 239 F. App’x 85 (5th Cir. 2007) ...................................................................................................................6
Shepherd v. Dallas Cty., 591 F.3d 445 (5th Cir. 2009) ................................................................................................................. 8, 10
Spencer v. Bragg, 310 F. App’x 678 (5th Cir. 2009).................................................................................................................6
Sunbeam Products, Inc. v. West Bend Co., 123 F.3d 246 (5th Cir. 1997) ........................................................................................................................5
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United States v. Martinez-Fuerte, 428 U.S. 543 (1976) .....................................................................................................................................14
United States v. Robinson, 2009 WL 1507130 (S.D. Tex. 2009)............................................................................................................6
Valentine v. Collier, No. 20-20207, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) ............................................................ 10, 12
Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047 (5th Cir. 1997) ......................................................................................................................5
Statutes 28 U.S.C. § 2241.................................................................................................................................................7 42 U.S.C. § 1983.................................................................................................................................................6 U.S.C. § 1983 ......................................................................................................................................................6 Rules Fed. R. Civ. P. 65 ...............................................................................................................................................5
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EXHIBITS

Number 1 2 3 4 5 6 7

Description Ulbo-Escobar Release Papers GEO Declaration for Joe Corley Detention Center Robert D. Murray Declaration for Joe Corley Detention Center Bryan C. Mentz Sworn Declaration for Morales Aaron S. Crisp Sworn Declaration for La O Munoz Bryan C. Mentz Sworn Declaration for Sanchez Joe Corley Detention Center Photos

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INTRODUCTION AND SUMMARY Petitioners’ temporary restraining order should be denied because their allegations are not based in any substantiated facts or law. This is amplified by the fact that one of the Petitioners was paroled and released nearly a month before the habeas petition and temporary restraining order were filed. Petitioners are essentially arguing that immigration detention is now unconstitutional and ask the Court to order their immediate release. Petitioners are bringing habeas corpus claims alleging that their continued detention at the Joe Corley Detention Center (JCDC) violates the Fifth and Eighth Amendments to the Constitution. Their claims focus on the alleged dangers of being detained while COVID-19 is a risk. Even assuming Petitioners’ allegations are true, they do not state a claim. The Fifth Circuit does not recognize a conditions-of-confinement habeas corpus claim, and a cause of action against the federal government directly under the Constitution is similarly not cognizable. Even if these claims could be brought in the Fifth Circuit, Petitioners have pled merely the potential introduction of a disease coupled with typical conditions of a densely populated detention facility—allegations the Fifth Circuit has made clear do not amount to a constitutional violation. Moreover, the evidence submitted here shows that these allegations are without merit. Petitioners do not provide any firsthand accounts of the conditions that they claim are unconstitutional This case—with dubious claims and a detailed record of the actions Respondents are taking to prevent COVID-19—does not warrant the release of Petitioners. Respondents’ evolving proactive measures show that they are responsive to the ever-changing threat of COVID-19 and are working to protect their detainees.
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FACTUAL AND PROCEDURAL BACKGROUND
Kelvin Armando Ulloa Escobar. Ulloa Escobar was paroled and released on June 1, 2020, nearly a month before this habeas was filed.1 On June 2, 2020 an immigration judge changed Ulloa’s
venue to Newark, New Jersey, where Ulloa would be staying. Ulloa is not at JCDC; he is in New
Jersey, and his case is moot.
Roger Ernesto La O Munoz. On July 14, 2019, U.S. Border Patrol (USBP) encountered La O Munoz after he entered the country without inspection near El Paso, Texas.2 La O Munoz was issued a Notice to Appear (NTA) and had immigration hearings on October 8th, October 30th, and December 9, 2019.3 On March 12, 2020, he was transferred to the JCDC.4 On March 27, 2020, ERO
Houston denied La O Munoz’s request for parole because he did not fall into any of the categories of aliens whom parole would be generally justified.5 Immigration proceedings continued on May 5th, May 19th, and June 1, 2020. 6 La O Munoz is currently scheduled for a final hearing on the merits on July 9, 2020.7
La O Munoz is on medication for adjustment disorder and gastro-esophageal reflux disease without esophagitis.8 He is also on a treatment plan for adjustment disorder with anxiety.9 On March
15, 2020 La O Munoz made a request for health services, and attended a medical appointment on March 19, 2020. 10 On April 1, 2020 he made another request and received a flu shot the next day. 11 On April 6, 2020 he received a follow up medical appointment. 12 La O Munoz made another request
1 Ex. 1. 2 Ex. 5 ¶ 4. 3 Id. 4 Id. 5 Ex. 5 ¶ 5. 6 Ex. 5 ¶ 4. 7 Ex. 5 ¶ 4. 8 Ex. 5 ¶ 6. 9 Id. 10 Id. 11 Id. 12 Id.
2

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on May 3, 2020 and he received an appointment on May 6th and 8th, 2020. 13 He received a medication adjustment on May 12, 2020. 14 Then he made another request for medical care on June 3, 2020; he attended an appointment the next day and refused care on June 9, 2020.15
Jorge Luis Morales-Diaz. On November 4, 2019, USBP encountered Morales after he applied for admission in El Paso, Texas.16 Morales was issued a Notice to Appear (NTA) and had immigration hearings on February 12, 2020.17 On March 12, 2020, he was transferred to the JCDC.18
On April 7, 2020 ERO Houston denied Morales request for parole because he did not fall into any of the categories of aliens whom parole would be generally justified.19 Immigration proceedings continued on May 5th, May 14th, May 26th, June 3rd, and June 30, 2020. 20 Morales is currently scheduled for a final hearing on the merits on July 9, 2020.21
Morales does not have any medical health concerns.22
Hugo Sanchez-Valdes. On November 4, 2019, USBP encountered Sanchez after he applied for admission in El Paso, Texas.23 Sanchez was issued a Notice to Appear (NTA) and had an immigration hearing on February 12, 2020.24 On March 12, 2020, he was transferred to the JCDC.25 On April 3rd and 29, 2020, ERO Houston denied Sanchez request for parole because he did not fall into any of the categories of aliens whom parole would be generally justified.26 Immigration
13 Id. 14 Id. 15 Id. 16 Ex. 4 ¶ 4. 17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 22 Ex. 4 ¶ 5-6. 23 Ex. 6 ¶ 4. 24 Id. 25 Id. 26 Id.
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proceedings continued on May 6th, May 14th, May 26th, June 3rd, and June 27, 2020. 27 Sanchez is currently scheduled for a final hearing on the merits on July 7, 2020.28
Sanchez has been diagnosed with Post-Traumatic Stress Disorder (PTSD) and is on a treatment plan, including medication.29 On May 19, 2020, Sanchez requested that medical cleared him to work and he was cleared on May 28, 2020.30
Joe Corley Detention Center. The JCDC has been providing consistent medical care and protection from COVID-19. ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.31 On April 10, 2020, ICE ERO released its ERO COVID-19 Pandemic Response Requirements (PRR), a guidance document that builds upon previously issued guidance and sets forth specific mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities, to ensure that detainees are appropriately housed and that available mitigation measures are implemented during this pandemic. 32 JCDC has issued masks, conducted training, and provided cleaning equipment to staff and detainees.33 Additionally, incoming detainees and staff are screened for signs of COVID-19, and detainees have around the clock access to medical care.
ISSUES 1. Whether Petitioners’ habeas petition has a substantial likelihood has a success on the
merits. 2. Whether Petitioners will suffer an irreparable injury if the injunction is denied.
27 Id. 28 Id. 29 Ex. 6 ¶ 5-6. 30 Id. 31 Ex. 3 ¶ 3. 32 Ex. 3 ¶ 4. 33 Ex. 2 ¶ 9-12; Ex. 4 ¶ 17.
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3. Whether the Petitioners’ injunction will disserve the public interest. STANDARD
A temporary restraining order is an equitable remedy that may be granted only if the movant satisfies four requirements: “(1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) that the injunction will not disserve the public interest.”34 Failure to establish any of these elements results in the denial of the motion for injunctive relief.35 Such relief is an extraordinary remedy that requires the applicant to unequivocally show the need for its issuance.36 This standard is particularly stringent when the movant seeks mandatory preliminary relief as opposed to an order to maintain the status quo.37
The standard is heightened further when a party seeks mandatory preliminary relief that alters the status quo.38 Although Petitioners filed a separate motion for a temporary restraining order for a preliminary injunction, Respondents respond to their arguments in conjunction with their response to the habeas petition.
ARGUMENT I. Petitioners’ habeas motion is unlikely to succeed on the merits.
A. Under Fifth Circuit precedent, Petitioners cannot invoke habeas corpus to challenge the conditions of their confinement.
Petitioners invoke habeas corpus to challenge the constitutionality of their conditions of confinement and seeks release. But habeas corpus is not a means by which to challenge conditions of confinement. “Simply stated, habeas is not available to review questions unrelated to the cause of
34 Sunbeam Products, Inc. v. West Bend Co., 123 F.3d 246, 250 (5th Cir. 1997); see also Parker v. Ryan, 960 F.2d 543, 545 (5th Cir. 1992) (“[T]he requirements of rule 65 apply to all injunctions.”) (citing Fed. R. Civ. P. 65). 35 Guy Carpenter & Co. v. Provenzale, 334 F.3d 459, 464 (5th Cir. 2003) (citation omitted). 36 Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1050 (5th Cir. 1997) (citation omitted). 37 Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976). 38 Id.
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detention.”39 In other words, a petitioner “cannot avail himself of the writ of habeas corpus when seeking injunctive relief unrelated to the cause of his detention.”40
The Fifth Circuit, and district courts within this Circuit, have long recognized that habeas
corpus actions are the proper vehicle to “challenge the fact or duration of confinement,” whereas
allegations that challenge an individual’s “conditions of confinement” are “properly brought in civil rights actions.”41 Even when a petitioner alleges that inadequate conditions of confinement create the
risk of serious physical injury, illness, or death, a petition for a writ of habeas corpus is not the proper vehicle for such a claim.42
The same is true in the civil immigration context. When a Mexican national sought release
from ICE custody due to concerns for COVID-19, another member of this Court dismissed the
petition, noting, “The Fifth Circuit has not recognized [habeas corpus as a permissible avenue for relief from alleged inadequate conditions of confinement].”43 Likewise, when civil Border Patrol
detainees sought release from custody to cure allegedly unconstitutional conditions, that Court noted,
“Any person in custody can obtain relief from allegedly inadequate conditions by being released, but
39 Pierre v. United States, 525 F.2d 933, 935 (5th Cir. 1976). 40 Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993) (emphasis added). 41 Schipke v. Van Buran, 239 F. App’x 85, 85–86 (5th Cir. 2007); see also Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017) (noting the “instructive principle that challenges to the fact or duration of confinement are properly brought under habeas, while challenges to the conditions of confinement are properly brought under [civil rights actions]”) (citations omitted); Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (holding that claims of overcrowding, denial of medical treatment, and access to an adequate law library were not proper subjects of a habeas corpus petition); Livas v. Myers, 2020 WL 1939583, at *8 (W.D. La. Apr. 22, 2020) (“Neither party nor this Court found a single precedential case in the Fifth Circuit . . . allowing conditions of confinement claims to be brought under § 2241.”); United States v. Robinson, 2009 WL 1507130, at *4 (S.D. Tex. 2009) (“Claims concerning the conditions of confinement are actionable, if at all, under 42 U.S.C. § 1983 or Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and not under the habeas corpus statutes.”). 42 Spencer v. Bragg, 310 F. App’x 678, 679 (5th Cir. 2009) (affirming the lower court’s dismissal of petitioner’s habeas claim even though he alleged that the conditions of confinement endangered his life); Northup v. Thaler, 2012 WL 4068676, at *2 (S.D. Tex. Aug. 7, 2012), rep. & rec. adopted, 2012 WL 4068997 (S.D. Tex. Sept. 14, 2012) (dismissing petitioner’s habeas claim based on alleged risk of abuse by other inmates). 43 Sacal-Micha v. Longoria, 2020 WL 1815691, at *5 n.6 (S.D. Tex. Apr. 9, 2020) (Rodriguez, J.).
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this fact does not create a permissible habeas corpus claim when the complaint turns on the conditions of confinement.”44
“A detention facility’s protocols for isolating individuals, controlling the movement of its staff and detainees, and providing medical care are part and parcel of the conditions in which the facility maintains custody over detainees.”45 These conditions of confinement are precisely what Petitioners challenge here.46 Because their request for release is due to the conditions, the Fifth Circuit has barred his claims. If their habeas claims are allowed here, any detainee could simply seek release to sidestep the Fifth Circuit’s express admonition that habeas corpus is not a means to challenge conditions of confinement. This loophole would swallow the rule.
Finally, habeas corpus is meant to correct only unlawful detention. Petitioners do not challenge the lawfulness of their custody or the cause of their detention.47 Thus, Petitioners cannot invoke habeas to seek relief unrelated to the cause of their detention.48
44 Rivera Rosa v. McAleenan, 2019 WL 5191095, at *18 (S.D. Tex. 2019). See also Sarres Mendoza v. Barr, 2019 WL 1227494, at *2 (S.D. Tex. 2019) (denying Honduran detainee’s motion for leave to amend because the proposed claims on “conditions of confinement may not be brought in a habeas corpus proceeding, and are actionable, if at all, in a civil rights action”); Patrick v. Whitaker, 2019 WL 588465, at *4, n.36 (S.D. Tex. 2019), appeal dismissed, 2019 WL 4668409 (5th Cir. 2019) (ICE detainee’s “motion for leave to file supplemental pleadings concerning the conditions of his confinement” is denied because “Petitioner’s proposed claims are not actionable under 28 U.S.C. § 2241.”). 45 Sacal-Micha, 2020 WL 1815691, at *4. 46 (See, e.g., Dkt. 1 ¶ 41 (“The Due Process Clause of the Fifth Amendment to the United States Constitution guarantees persons in civil immigration detention the right to reasonable safety and to be free from punitive conditions of confinement, and requires the government to put forth a constitutionally adequate, non-punitive purpose for continued detention.”); 47 See Pierre, 525 F.2d at 935–36; Livas, 2020 WL 1939583, at *7–8 (denying prisoners’ requests for home confinement because of concerns of COVID-19 and noting that they incorrectly invoked habeas corpus to challenge their lawful imprisonment). 48 See Rourke, 11 F.3d at 49.
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B. Petitioners’ direct constitutional claims seeking release are not cognizable, and, even if they were, the facts here do not support a constitutional violation. i. Petitioners do not plead a constitutional violation.
To the extent Petitioners bring direct constitutional claims seeking their release, they may not do so in the Fifth Circuit. “Although there have been a few notable exceptions, the federal courts, and this Circuit in particular, have been hesitant to find causes of action arising directly from the Constitution.”49 Recognizing a claim directly under the Fifth Amendment to order Petitioners’ release would be a departure from Fifth Circuit precedent.50
Even if a direct constitutional claim were cognizable in this Circuit, Plaintiffs have not pled it. In a conditions-of-confinement case, “the proper inquiry is whether those conditions amount to punishment of the detainee.”51 Under Fifth Circuit case law, “isolated examples of illness, injury, or death, standing alone, cannot prove that conditions of confinement are constitutionally adequate. Nor can the incidence of diseases or infections, standing alone, . . . since any densely populated residence may be subject to outbreaks.”52 A detainee does not establish a case simply by alleging that the detention center has disease or infection present or that it may in the future. “Rather, a detainee . . . must demonstrate a pervasive pattern of serious deficiencies in providing for his basic human needs.”53
Petitioners claim that Respondents do not have a legitimate government interest detain the Petitioners in their present conditions. Notably, however, Petitioners do not provide any sworn statements about the condition of JCDC.54 Instead Petitioners rely on newspaper articles, statements
49 Alexander v. Trump, 753 F. App’x 201, 206 (5th Cir. 2018) (rejecting a freestanding constitutional complaint against the FBI seeking injunctive relief). See also Hearth, Inc. v. Dep’t of Public Welfare, 617 F.2d 381, 382 (5th Cir. 1980) (citing Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), as one “notable exception”). 50 Sacal-Micha, 2020 WL 1815691, at *5–6. 51 Bell v. Wolfish, 441 U.S. 520, 535 (1979). 52 Shepherd v. Dallas Cty., 591 F.3d 445, 454 (5th Cir. 2009). 53 Id. 54 Dkt. 9-1 at 17.
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from other detainees, and a hearsay declaration from their counsel regarding the conditions. Furthermore, the information provided in that declaration must be at least a month old since Petitioner Ulloa has not been detained since June 1, 2020.55 It is notable that the declaration does not provide any dates regarding the alleged conditions of JCDC. The response to the COVID-19 virus is constantly shifting. Thus, hearsay that was gathered two or three months ago would likely not be applicable today.
Alternatively, if the detainee challenges an officer’s episodic act or omission, he must demonstrate that the official acted with deliberate indifference to his medical needs or safety.56 Officials disregard a risk to an inmate when they “refuse to treat him, ignore his complaints, intentionally treat him incorrectly, or engage in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.”57
Petitioners’ allegations do not support either a “pervasive pattern of serious deficiencies in providing for basic human needs” or a “wanton disregard for serious medical needs.” First, Petitioners do not have any medical conditions or risk factors that the Centers for Disease Control and Prevention (CDC) has determined make someone more vulnerable to COVID-19.58 Furthermore, Petitioners have access to around the clock medical care and have not made any complaints of symptoms.59
Second, to the extent that Petitioners claim that they are in danger because they are detained with others in typical detention-facility conditions, his claims fail as a matter of law. Even taking these
55 Ex. 1. 56 Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). 57 Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). 58 See Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19), People Who Need to Take Extra Precautions, Centers for Disease Control and Prevention, available at https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/index.htmlhttps://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-withmedical-conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html 59 Ex. 2 ¶ 26-28.
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allegations as true, Fifth Circuit expressly forecloses Petitioners’ claim: “any densely populated
residence may be subject to outbreaks,” and the existence of a disease does not state a constitutional violation.60 The Fifth Circuit recently reaffirmed this principle in the context of COVID-19 in staying
the preliminary injunction order against the Texas Department of Criminal Justice (TDCJ) relating to its COVID-19 prevention procedures.61 Where the district court imposed detailed procedures on
TDCJ, going beyond CDC guidance and impeding TDCJ’s ability to adapt to changing circumstances, the Fifth Circuit noted that TDCJ is likely to prevail on the merits of its appeal.62
ii. The proactive measures Respondents have taken to prevent COVID-19 show that they are neither punishing Petitioners nor deliberately indifferent to their needs.
In staying the district court’s injunction against TDCJ, the Fifth Circuit found that Texas
prisoners challenging the prisons’ COVID-19 measures failed to show deliberate indifference because
“the evidence shows that TDCJ has taken and continues to take measures—informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus.”63 The same
is true here.
The JCDC has taken extensive measures to prevent COVID-19:
 Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.64
 On April 10, 2020, ICE ERO released its ERO COVID-19 Pandemic Response Requirements (PRR), a guidance document that builds upon previously issued guidance and sets forth specific mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities, to ensure that detainees are
60 Shepherd, 591 F.3d at 454. 61 . Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *3 (5th Cir. Apr. 22, 2020) (citing Shepherd, 591 F.3d at 454). 62 Id. at *3–4. 63 Valentine, 2020 WL 1934431, at *4. 64 Ex. 3 ¶ 3.
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appropriately housed and that available mitigation measures are implemented during this pandemic. 65
 Informed staff and detainees how to recognize symptoms of COVID-19.66
 The facility is operating below capacity. The facility is designed to accommodate 1533 detainees, currently they are housing 303 detainees.67
 All multi-occupant housing units are equipped with bunk beds. The bunk beds in the 36occupant units are set five (5) feet eight (8) inches apart from the center of one lower bunk to the other lower bunk; however, there are bunks that are arranged side by side with a metal plate separating them. Detainees are encouraged to sleep head to foot. The bunk beds in the rest of the housing units are set five (5) feet ten (10) inches apart from the center of one lower bunk to the other lower bunk.68
 Detainees at the Joe Corley Processing Center are provided meals in their housing units (satellite feeding) which reduces potential exposure to other detainees and staff. There are cleaners and sanitizers as well as clean cloth towels and/or paper towels available for cleaning of the day room tables and floors after a meal service. 69
 All Joe Corley Processing Center housing units have ample supplies of cleaning products and disinfectant available for detainees to clean showers, toilets, sinks, tables and common areas between uses. 70
 All detainees have been issued masks.71
 The Center has posted signage in multiple languages that identify symptoms of COVID-19 as well as hand hygiene instructions.72
 Joe Corley Processing Center staff have initiated town hall informational sessions with detainees to present the proper usage of the masks and to encourage usage.73
 Limited transfers and movement among the detention centers. Incoming detainees that are symptomatic are placed in a single housing unit. Health care professionals may test individual detainees per medical standards, and medically treat any detainee in need of care. Individuals are not placed back into the general population without medical clearance provided by a medical doctor and monitored.74
 Staff and detainees are screened upon entering JCDC with questionnaires and temperature checks.75
65 Ex. 3 ¶ 4. 66 Ex. 2 ¶ 8. 67 Ex. 2 ¶ 9; Ex. 4 ¶ 17. 68 Ex. 4 ¶ 17. 69 Ex. 4 ¶ 17. 70 Ex. 4 ¶ 17. 71 Ex. 2 ¶ 10. 72 Ex. 2 ¶ 11. 73 Ex. 4 ¶ 17. 74 Ex. 2 ¶ 12 (B)(i). 75 Ex. 2 ¶ 12 (B)(ii); ¶ 22.
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 Twice a week, each detainee is provided with shampoo/body wash, tissue paper along with other hygiene products, as required and followed by facility issuance schedule, exceeding the Performance Based National Detention Standards (PBNDS).76
 Living areas are sanitized and supplies are monitored to assure adequate supplies long term and there is no shortage.77
 There is a respiratory protection program with fit testing and training so that PPE is correctly donned, doffed, and disposed of properly. 78
 JCPC has implemented intensified cleaning of surfaces and objects that are frequently touched, especially in common areas. This includes the video telecommunications (VTC) consoles, telephone and visitation rooms that are cleaned between each use. GEO has instructed detainees and staff to clean and disinfect shared equipment and property with frequency.79
 Cleaning occurs throughout the day, multiple times a day, with EPA registered disinfectants that are represented as effective against COVID-19.80
 JCPC follows the guidelines from the CDC to increase fresh air exchange to reduce the risk of the spread of airborne illness throughout JCPC. Twice daily a complete air exchange within JCPC is performed. 81
 JCPC has limited open movement and individual detainees are not moving in mass from location to location at will. 82
 JCPC has temporarily stopped visitors from meeting with detainees, except legal counsel who confer with clients in visitation rooms while practicing social distancing. Each visitation room is sanitized before and after each use.83
 Staff have personal protective gear, including N95 respirators. PPE are stored in spaces in JCPC where PPE can be accessed when needed and in an emergency. Staff have been trained to perform hand hygiene after removing PPE. 84
 JCPC has onsite health care services. Detainees at JCPC have immediate access to timely and appropriate health care. 85
76 Ex. 2 ¶ 13. 77 Ex. 2 ¶ 13. 78 Ex. 2 ¶ 14. 79 Ex. 2 ¶ 15. 80 Id. 81 Ex. 2 ¶ 17. 82 Ex. 2 ¶ 18. 83 Ex. 2 ¶ 20. 84 Ex. 2 ¶ 21. 85 Ex. 2 ¶ 24.
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Based on the steps that Respondents have taken to protect detainees during the pandemic,
Petitioners cannot show a constitutional violation.86 Further, to the extent Petitioners argue that all
the steps taken by Respondents are still inadequate to “fully guarantee [Plaintiffs’] safety,” that is not
the applicable standard, and release is still not warranted.87
II. Petitioners will not suffer an irreparable injury if the temporary restraining order is denied.
Petitioners are unlikely to suffer an irreparable injury if the temporary restraining order is
denied. None of the Petitioners have underlying medical conditions or other risk factors that make
them more susceptible for COVID-19.88 It is notable that no Court in the Fifth Circuit has authorized
the release of detainees due to COVID-19 who do not have medical vulnerabilities. As such, even if
the Petitioners were to contract COVID-19, they are unlikely to suffer an irreparable injury.
III. Petitioners’ proposed injunction will disserve the public interest.
Concern for potential exposure to COVID-19 is shared by all, but mandating release of ICE
detainees is against the public interest. The public interest in enforcement of immigration laws is
significant.89 The Petitioners are all arriving aliens subject to mandatory detention under Section
212(a)(7)(A)(i)(I). The Petitioners have been determined to be flight risks because they do not have
86 Sacal-Micha, 2020 WL 1815691, at *6 (“But ultimately, Sacal does not assert that Respondents are doing nothing to protect him, other detainees, and staff members from COVID-19, but only that Respondents are not doing enough. . . . Courts have refused to provide habeas relief even when the claimed inadequacies allegedly placed the petitioner in grave peril.”). 87 Sacal-Micha, 2020 WL 1518861, at *6. (“[I]t is possible that despite ICE’s best efforts, Sacal may be exposed and contract the virus. . . . But the fact that ICE may be unable to implement the measures that would be required to fully guarantee Sacal’s safety does not amount to a violation of his constitutional rights and does not warrant his release.”). See also Jorge V. S. v. Green, 2020 WL 1921936, at *3 (D.N.J. Apr. 21, 2020) (“That these steps [by ICE in accordance with CDC guidance for detention facilities] do not guarantee Petitioner will remain healthy and free of the disease is immaterial, the constitution requires no such perfection.”); Dawson v. Asher, 2020 WL 1704324, at *12 (W.D. Wash. Apr. 8, 2020) (“No one can entirely guarantee safety in the midst of a global pandemic. However, the standard under which the court evaluates Petitioners’ second TRO motion is not guaranteed safety—an impossible standard to meet no matter the circumstances—but rather a likelihood of irreparable harm.”). 88 Ex. 2 ¶ 26-28. 89 United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976); Nken v. Holder, 556 U.S. 418, 435 (2009).
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any ties to the area and there is a lack of confidence that they will appear for their hearing and possible removal if one is ordered.90
Furthermore, all the Petitioners have a final hearing on merits of their immigration case coming up; Sanchez will be on July 7, 2020,91 La Munoz will be on July 9, 2020,92 and Morales will be on July 9, 2020.93 If Petitioners are released, their hearings will be cancelled and they will be taken off the detained docket. Once the immigration judge transfers their case to the closest immigration court to their new residence, it will take months, possibly years, before a new hearing can be scheduled. The public interest is best served by allowing the immigration process to continue, especially when the Petitioners have hearings so soon, and those hearings could moot their claims. As such, Petitioner’s proposed injunction will disserve the public interest and should be denied.
CONCLUSION Respondents respectfully request that the Court deny Petitioners’ temporary injunction.
90 Ex. 4 ¶ 7; Ex. 5 ¶ 7; Ex. 6 ¶ 6. 91 Ex. 6 ¶ 4. 92 Ex. 5 ¶ 4. 93 Ex. 4 ¶ 4.
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Respectfully submitted, RYAN K. PATRICK United States Attorney By: /s/ Ariel N. Wiley Ariel N. Wiley Assistant United States Attorney Attorney-in-Charge Southern District No. 2554283 Texas Bar No. 24093366 1000 Louisiana Street, Suite 2300 Houston, Texas 77002 Tel.: (713) 567-9000 Fax: (713) 718-3303 Email: Ariel.Wiley@usdoj.gov Counsel for Respondents/Defendants
CERTIFICATE OF SERVICE I certify that on June 30, 2020, the foregoing motion was filed with the Court and served on all parties through the Court CM/ECF system.
/s/Ariel N. Wiley Ariel N. Wiley Assistant United States Attorney
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 Case 4:20-cv-02206 Document 25 Filed on 07/31/20 in TXSD Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ROGER ERNESTO LA O MUNOZ; JORGE LUIS MORALES-DIAZ; HUGO SANCHEZVALDES; KELVIN ARMANDO ULLOA ESCOBAR,
Petitioners-Plaintiffs,
vs.
CHAD F. WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; PATRICK CONTRERAS, in his official capacity as Field Office Director, Houston Field Office, Enforcement and Removal Operations, U.S. Immigration & Customs Enforcement; WILLIAM P. BARR, in his official capacity as Attorney General of the United States; RANDY TATE, in his official capacity as Warden, Joe Corley Detention Facility,
Respondents-Defendants.

Case No. 4:20-cv-2206

PLAINTIFFS’ NOTICE OF VOLUNTARY DISMISSAL
Pursuant to Federal Rule of Civil Procedure 41, Petitioners-Plaintiffs Roger Ernesto La O Munoz, Jorge Luis Morales-Diaz, Hugo Sanchez-Valdes, and Kelvin Armando Ulloa Escobar— all of whom have been released from Joe Corley Detention Facility—hereby dismiss this action. See Fed. R. Civ. P. 41(a)(1)(A) (allowing plaintiffs to dismiss an action, without court order, by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment”).

Case 4:20-cv-02206 Document 25 Filed on 07/31/20 in TXSD Page 2 of 3

Dated: July 31, 2020

Respectfully submitted, GIBSON, DUNN & CRUTCHER LLP

By:

/s/ Andrew LeGrand

Andrew LeGrand (Texas Bar No. 24070132)

S.D. Tex. ID No. 2827698

Pooja R. Patel (admitted pro hac vice)

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, TX 75201

Tel: 214.698.3100

alegrand@gibsondunn.com

ppatel@gibsondunn.com

Lee Dunst (admitted pro hac vice) Katherine Marquart (admitted pro hac vice) GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, NY 10166 Tel: 212.351.4000 ldunst@gibsondunn.com kmarquart@gibsondunn.com

Nicholas M. Parker (admitted pro hac vice) GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 Tel: 415.393.8200 nparker@gibsondunn.com

Alayna Monroe (admitted pro hac vice) GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 Tel: 213.229.7000 amonroe@gibsondunn.com

Attorneys for Petitioners-Plaintiffs

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Case 4:20-cv-02206 Document 25 Filed on 07/31/20 in TXSD Page 3 of 3

CERTIFICATE OF SERVICE
I hereby certify that on July 31, 2020, I served a copy of the foregoing Notice of Voluntary Dismissal via the Court’s electronic filing system and via email to the office of the United States Attorney for the Southern District of Texas, care of AUSA Ariel N. Wiley who has been assigned to this case.

Dated: July 31, 2020

/s/ Nicholas M. Parker Nicholas M. Parker

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