ADMIN,AJrecused,DLrecused,JDrecused,JLrecused
U.S. District Court District of New Hampshire (Concord) CIVIL DOCKET FOR CASE #: 1:20-cv-00453-LM

Gomes v. US Department of Homeland Security, Acting Secretary et al Assigned to: Chief Judge Landya B. McCafferty Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

Date Filed: 04/15/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner Robson Xavier Gomes

represented by Colin Missett Nixon Peabody LLP Exchange Place 53 State St Boston, MA 02109-2835 617-345-1000 Email: cmissett@nixonpeabody.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Vicinanzo Nixon Peabody LLP 900 Elm St, 14th Flr Manchester, NH 03101-2031 603 628-4000 Email: dvicinanzo@nixonpeabody.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marx Calderon Nixon Peabody LLP Exchange Place 53 State St Boston, MA 02109-2835 617-345-1205 Email: mcalderon@nixonpeabody.com TERMINATED: 09/11/2020 LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Michael Strauss Nixon Peabody LLP 900 Elm St, 14th Flr Manchester, NH 03101-2031 603 628-4704 Email: mestrauss@nixonpeabody.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Daniel Deane Nixon Peabody LLP 900 Elm St, 14th Flr Manchester, NH 03101-2031 603 628-4047 Email: ddeane@nixonpeabody.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott O'Connell Nixon Peabody LLP 900 Elm St, 14th Flr Manchester, NH 03101-2031 603 628-4000 Email: soconnell@nixonpeabody.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Behzad Mirhashem (FPD) Federal Defender's Office The Ralph Pill Bldg 22 Bridge St Concord, NH 03301 603 226-7360 Email: behzad_mirhashem@fd.org ATTORNEY TO BE NOTICED
Cathy J. Green Shaheen & Gordon 107 Storrs St PO Box 2703 Concord, NH 03302-2703 603 225-7262

Email: cgreen@shaheengordon.com ATTORNEY TO BE NOTICED
Emily Assunta White Shaheen & Gordon PA 180 Bridge St Manchester, NH 03104 603-792-8472 Fax: 603-669-0903 Email: ewhite@shaheengordon.com ATTORNEY TO BE NOTICED
Gilles R. Bissonnette American Civil Liberties Union of New Hampshire 18 Low Ave Concord, NH 03301 603 224-5591 Email: Gilles@aclu-nh.org ATTORNEY TO BE NOTICED
Henry Klementowicz American Civil Liberties Union of New Hampshire 18 Low Ave Concord, NH 03301 603 333-2201 Email: henry@aclu-nh.org ATTORNEY TO BE NOTICED
Henry Clay Quillen Whatley Kallas LLP 159 Middle Street, Suite 2C Portsmouth, NH 03801 603-294-1591 Fax: 800-922-4851 Email: hquillen@whatleykallas.com ATTORNEY TO BE NOTICED
Laurel Gilbert Hinckley Allen & Snyder 28 State St Boston, MA 02109-1775 617-378-4160 Email: lgilbert@hinckleyallen.com ATTORNEY TO BE NOTICED

Nathan P. Warecki Nixon Peabody LLP 900 Elm St, 14th Flr Manchester, NH 03101-2031 603 628-4000 Email: nwarecki@nixonpeabody.com ATTORNEY TO BE NOTICED
Ronald L. Abramson Shaheen & Gordon PA 180 Bridge St Manchester, NH 03104 603-792-8472 Fax: 603-669-0903 Email: rabramson@shaheengordon.com ATTORNEY TO BE NOTICED
SangYeob Kim American Civil Liberties Union of New Hampshire 18 Low Ave Concord, NH 03301 603 224-5591 Fax: 603 617 7264 Email: SangYeob@aclu-nh.org ATTORNEY TO BE NOTICED
Timothy C. Ayer Shaheen & Gordon PA 140 Washington St PO Box 977 Dover, NH 03821-0977 603-749-5000 Fax: 603-749-1838 Email: tayer@shaheengordon.com ATTORNEY TO BE NOTICED
John P. Newman Newman Law Office PLLC 15 High St Manchester, NH 03101 603 935-5603 Fax: 603 606-5803

V.
Respondent
US Department of Homeland Security, Acting Secretary other Chad Wolf

Email: john@newmanlawnh.com ATTORNEY TO BE NOTICED
represented by Frances Susan Cohen DOJ-USAO NH USAO 53 Pleasant Street Ste 4th Floor Concord, NH 03301 603-225-1552 Email: frances.cohen2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Rabuck US Attorney's Office (NH) James C Cleveland Federal Bldg 53 Pleasant St, 4th Flr Concord, NH 03301 603 225-1552 Email: Rob.Rabuck@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terry L. Ollila US Attorney's Office (NH) James C Cleveland Federal Bldg 53 Pleasant St, 4th Flr Concord, NH 03301 603 225-1552 Email: Terry.Ollila@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Dronzek US Attorney's Office (NH) James C Cleveland Federal Bldg 53 Pleasant St, 4th Flr Concord, NH 03301 603 225-1552 Fax: 603 225-1470 Email: anna.dronzek@usdoj.gov

Respondent
Immigration and Customs Enforcement, Acting Field Office Director Enforcement and Removal Operations, in his official capacity

ATTORNEY TO BE NOTICED
Cam T. Le US Attorney's Office (NH) James C Cleveland Federal Bldg 53 Pleasant St, 4th Flr Concord, NH 03301 603 225-1552 Email: cam.le@usdoj.gov ATTORNEY TO BE NOTICED
Georgiana MacDonald US Attorney's Office (NH) James C Cleveland Federal Bldg 53 Pleasant St, 4th Flr Concord, NH 03301 603 230-2582 Email: georgiana.macdonald@usdoj.gov ATTORNEY TO BE NOTICED
John S. Davis US Attorney's Office (NH) James C Cleveland Federal Bldg 53 Pleasant St, 4th Flr Concord, NH 03301 603 230-2574 Email: john.davis8@usdoj.gov ATTORNEY TO BE NOTICED
Kasey A Weiland US Attorney's Office (NH) James C Cleveland Federal Bldg 53 Pleasant St, 4th Flr Concord, NH 03301 603 225-1552 Email: kasey.weiland2@usdoj.gov ATTORNEY TO BE NOTICED
represented by Frances Susan Cohen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Rabuck

other Todd Lyons
Respondent Strafford County Department of Corrections, Superintendent in his official capacity other Christopher Brackett

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terry L. Ollila (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Dronzek (See above for address) ATTORNEY TO BE NOTICED
Cam T. Le (See above for address) ATTORNEY TO BE NOTICED
Georgiana MacDonald (See above for address) ATTORNEY TO BE NOTICED
John S. Davis (See above for address) ATTORNEY TO BE NOTICED
Kasey A Weiland (See above for address) ATTORNEY TO BE NOTICED
represented by Anna Dronzek (See above for address) ATTORNEY TO BE NOTICED
Cam T. Le (See above for address) ATTORNEY TO BE NOTICED
Georgiana MacDonald (See above for address) ATTORNEY TO BE NOTICED
John S. Davis (See above for address) ATTORNEY TO BE NOTICED

Kasey A Weiland (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/15/2020
04/15/2020 04/15/2020
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# Docket Text
1 NEW CASE/PETITION FOR WRIT OF HABEAS CORPUS 2241/2254. (Filing fee $ 5, receipt number ANHDC-1964018.) filed by Robson Xavier Gomes. (Attachments: # 1 Exhibit 1, Declaration of Robert Greifinger, MD, # 2 Exhibit (Affidavit) 2, Affidavit of Bire Williams, M.D., # 3 Exhibit 3, Declaration of Susan Church, # 4 Exhibit 4, Civil Cover Sheet)(Newman, John) (Additional attachment(s) added on 4/15/2020: # 5 /s/ Civil Cover Sheet) (mc). (Entered: 04/15/2020)
Case assigned to Chief Judge Landya B. McCafferty. The case designation is: 1:20-cv-453-LM. Please show this number with the judge designation on all future pleadings. (mc) (Entered: 04/15/2020)
NOTICE. This case has been designated for Electronic Case Filing. All further submissions shall be filed in compliance with the Administrative Procedures for Electronic Case Filing. Pro se litigants are not required to file electronically and may continue to file documents in paper format. Persons filing electronically are strongly encouraged to complete the interactive training modules available on the courts website. To access these modules, click HERE. (mc) (Entered: 04/15/2020)
NOTICE of Filing - Case filed under 28 U.S.C. 2241. A copy of the petition has been electronically sent via ECF to your office. No further action is required by the United States Attorney unless directed by the presiding judge.(mc) (Entered: 04/15/2020)
2 ORDER Regarding Service and deadlines as outlined within. So Ordered by Magistrate Judge Andrea K. Johnstone.(de) (Entered: 04/15/2020)
3 NOTICE of Attorney Appearance by Nathan P. Warecki on behalf of Robson Xavier Gomes Attorney Nathan P. Warecki added to party Robson Xavier Gomes(pty:pla).(Warecki, Nathan) (Entered: 04/17/2020)
4 NOTICE of First Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 and Class Complaint for Declaratory and Injunctive Relief by Robson Xavier Gomes.(Warecki, Nathan) (Entered: 04/17/2020)

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5 AMENDED COMPLAINT against All Defendants filed by Robson Xavier Gomes. (Attachments: # 1 Appendix Declaration of Nathan P. Warecki, Esq., # 2 Exhibit A to Warecki Dec. - Declaration of Dr. Marc Stern, # 3 Exhibit B to Warecki Dec. - Declaration of Dr. Jonathan Louis Golob, # 4 Exhibit C to Warecki Dec. - Affidavit of SangYeob Kim, Esq., # 5 Exhibit D to Warecki Dec. - Affidavit of Darwin Aliesky Cuesta-Rojas, # 6 Exhibit E to Warecki Dec. - Affidavit of Jose Nolberto Tacuri-Tacuri, # 7 Exhibit F to Warecki Dec. - Affidavit of Robson Xavier Gomes, # 8 Exhibit G to Warecki Dec. - Declaration of John Sandweg, Esq.)(Warecki, Nathan) (Entered: 04/17/2020)
6 NOTICE of Attorney Appearance by Gilles R. Bissonnette on behalf of Robson Xavier Gomes and Additional Petitioners Attorney Gilles R. Bissonnette added to party Robson Xavier Gomes(pty:pla).(Bissonnette, Gilles) (Entered: 04/17/2020)
7 MOTION for Preliminary Injunction and Motion for Expedited Discovery filed by Robson Xavier Gomes. HEARING REQUESTED.Follow up on Objection on 5/4/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law, # 2 Exhibit H - Declaration of Dora Schriro, # 3 Exhibit I Affidavit of John Burlock, # 4 Exhibit J - Affidavit of Pedro Gonzalez Cuarca, # 5 Proposed Order)(Warecki, Nathan) (Entered: 04/20/2020)
8 NOTICE of Attorney Appearance by W. Scott O'Connell on behalf of Robson Xavier Gomes and Additional Petitioners Attorney W. Scott O'Connell added to party Robson Xavier Gomes(pty:pla).(O'Connell, W.) (Entered: 04/20/2020)
9 Emergency MOTION Expedited Bail Hearings for Plaintiffs and all Putative Class Members filed by Robson Xavier Gomes. HEARING REQUESTED.Follow up on Objection on 5/4/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law)(Warecki, Nathan) (Entered: 04/20/2020)
10 NOTICE of Attorney Appearance by W. Daniel Deane on behalf of Robson Xavier Gomes and Additional Petitioners Attorney W. Daniel Deane added to party Robson Xavier Gomes(pty:pla).(Deane, W.) (Entered: 04/20/2020)
11 NOTICE of Attorney Appearance by Henry Klementowicz on behalf of Robson Xavier Gomes Attorney Henry Klementowicz added to party Robson Xavier Gomes(pty:pla).(Klementowicz, Henry) (Entered: 04/20/2020)

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12 NOTICE of Attorney Appearance by David A. Vicinanzo on behalf of Robson Xavier Gomes and Additional Petitioners Attorney David A. Vicinanzo added to party Robson Xavier Gomes(pty:pla).(Vicinanzo, David) (Entered: 04/20/2020)
13 NOTICE of Attorney Appearance by Michael Strauss on behalf of Robson Xavier Gomes and Additional Petitioners Attorney Michael Strauss added to party Robson Xavier Gomes(pty:pla).(Strauss, Michael) (Entered: 04/20/2020)
14 MOTION to Certify Class and Appointment of Class Counsel filed by Robson Xavier Gomes.Follow up on Objection on 5/4/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law, # 2 Exhibit K - Declaration of Gilles Bissonnette, Esq., # 3 Exhibit L - Declaration of W. Scott O'Connell)(Warecki, Nathan) (Entered: 04/20/2020)
15 NOTICE of Attorney Appearance by Robert J. Rabuck on behalf of Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary Attorney Robert J. Rabuck added to party Immigration and Customs Enforcement, Acting Field Office Director(pty:dft), Attorney Robert J. Rabuck added to party US Department of Homeland Security, Acting Secretary(pty:dft).(Rabuck, Robert) (Entered: 04/20/2020)
16 NOTICE of Attorney Appearance by Terry L. Ollila on behalf of Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary Attorney Terry L. Ollila added to party Immigration and Customs Enforcement, Acting Field Office Director(pty:dft), Attorney Terry L. Ollila added to party US Department of Homeland Security, Acting Secretary(pty:dft).(Ollila, Terry) (Entered: 04/20/2020)
17 NOTICE of Attorney Appearance by Frances Susan Cohen on behalf of Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary Attorney Frances Susan Cohen added to party Immigration and Customs Enforcement, Acting Field Office Director(pty:dft), Attorney Frances Susan Cohen added to party US Department of Homeland Security, Acting Secretary(pty:dft).(Cohen, Frances) (Entered: 04/20/2020)
ENDORSED ORDER. Text of Order: In an Order dated April 15, 2020, Magistrate Judge Johnstone gave the respondents until April 22, 2020, at 5 p.m., to inform the court whether they oppose the release of Mr. Gomes pending the court's review of the merits of his habeas petition. If release is opposed, respondents must provide the

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04/21/2020

grounds including if the petitioner has a violent criminal record and if the respondent disputes that the petitioner has a preexisting medical condition that renders him particularly vulnerable to the COVID-19 virus. Doc. no. 2. Since the April 15 Order, petitioner has enlarged his request and filed numerous pleadings, including an amended habeas petition and a class complaint seeking injunctive relief. See doc. nos. 5, 7, 9, & 14. There are two additional named petitioners and putative class representatives (Aliesky Cuesta-Rojas and Jose Nolberto TacuriTacuri). The court now orders respondents to include the two new putative class representatives in their response regarding bail, which is currently due on April 22 at 5 p.m. A status conference to discuss procedural matters shall occur via telephone, with a court reporter, on Wednesday, April 22, 2020, at 2:30 p.m. Respondents shall file answers to the newly filed pleadings on or before April 29, 2020 (the same date ordered by Judge Johnstone). So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 04/20/2020)
NOTICE of Hearing. Telephone STATUS Conference set for 4/22/2020 at 02:30 PM before Chief Judge Landya B. McCafferty. (de) (Entered: 04/20/2020)
18 NOTICE of Attorney Appearance by Ronald L. Abramson on behalf of Robson Xavier Gomes Attorney Ronald L. Abramson added to party Robson Xavier Gomes(pty:pla).(Abramson, Ronald) (Entered: 04/20/2020)
19 NOTICE of Attorney Appearance by Henry Clay Quillen on behalf of Robson Xavier Gomes , Darwin Aliesky Cuesta-Rojas, and Jose Nolberto Tacuri-Tacuri Attorney Henry Clay Quillen added to party Robson Xavier Gomes(pty:pla).(Quillen, Henry) (Entered: 04/21/2020)
20 MOTION for Laurel M. Gilbert to Appear Pro Hac Vice (Filing fee $ 100, Receipt # ANHDC-1966796.) filed by Robson Xavier Gomes.Follow up on Objection on 5/5/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Exhibit (Affidavit) A Affidavit of Laurel M. Gilbert in Support of Motion for Admission Pro Hac Vice)(Warecki, Nathan) (Entered: 04/21/2020)
ENDORSED ORDER granting 20 Motion for for Laurel M. Gilbert to Appear Pro Hac Vice. Text of Order: Granted. Local counsel shall comply with all obligations required by L.R. 83.2(b) absent order of the court. So Ordered by Chief Judge Landya B. McCafferty.

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The clerks office will provide the admitted attorney with instructions on how to obtain access to electronic filing by separate email. The admitted attorney must have an individual upgraded PACER account, not a shared firm account, to electronically file in the District of New Hampshire. After obtaining e-filing access, the admitted attorney must file an appearance to begin receiving electronic notices.(gla) (Entered: 04/22/2020)
21 NOTICE of Potential Release of Named Petitioners by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Rabuck, Robert) (Entered: 04/22/2020)
22 NOTICE of Potential Release of Named Petitioners (replaces DN 21) by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Rabuck, Robert) (Entered: 04/22/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. TELEPHONE STATUS CONFERENCE held on 4/22/2020. (Court Reporter: Liza Dubois) (Pltfs Atty: Nathan Warecki, Gilles Bissonnette, John Newman, W. Scott O'Connell, Laurel Gilbert) (Defts Atty: Frances Cohen, Robert Rabuck, Terry Ollila)(Total Hearing Time: 1 hour, 30 minutes) (de) (Entered: 04/22/2020)
NOTICE of Hearing. Telephone Conference set for 4/23/2020 at 09:00 AM before Chief Judge Landya B. McCafferty. (de) (Entered: 04/22/2020)
23 ORDER. On April 22, 2020, the court held a telephone hearing in this case. The court summarizes its holdings and sets deadlines as contained within this order. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 04/22/2020)
ENDORSED ORDER. Text of Order: The parties have reached agreement on the disputed discovery requests. The hearing scheduled for 9 a.m. this morning is, therefore, no longer necessary and is cancelled. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 04/23/2020)
Deadline terminated:Telephone Conference 04/23/2020 cancelled per endorsed order. (de) (Entered: 04/23/2020)
NOTICE re: 9 Emergency MOTION Expedited Bail Hearings for Plaintiffs and all Putative Class Members. Motion Hearing via video

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conference set for 4/27/2020 at 02:30 PM before Chief Judge Landya B. McCafferty.(de) (Entered: 04/23/2020)
24 NOTICE of Attorney Appearance by Laurel Gilbert on behalf of Robson Xavier Gomes Attorney Laurel Gilbert added to party Robson Xavier Gomes(pty:pet).(Gilbert, Laurel) (Entered: 04/23/2020)
25 STIPULATION re: Protective Order by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary (Attachments: # 1 Proposed Order)(Cohen, Frances) (Entered: 04/24/2020)
26 NOTICE of Status of Expedited Discovery Requests by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. (Attachments: # 1 Exhibit Notice of Conventional Filing)(Cohen, Frances) (Additional attachment(s) added on 4/27/2020: # 2 Exhibit Spreadsheet - ICE Detainees at Strafford April 23, 2020) (de). (Entered: 04/24/2020)
27 Assented to MOTION TO SEAL AT LEVEL 1 THE ATTACHMENTS TO THE NOTICE OF STATUS OF EXPEDITED DISCOVERY REQUESTS filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(de) (Entered: 04/24/2020)
ENDORSED ORDER re: 25 Stipulation re: Protective Order. Text of Order: Approved. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 04/27/2020)
33 STIPULATED PROTECTIVE ORDER. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 04/27/2020)
28 RESPONSE re 23 Order filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. (Cohen, Frances) (Entered: 04/25/2020)
29 Assented to MOTION to Supplement the Record filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 04/26/2020)
30 AFFIDAVIT re 28 Response (not to Motion) of Alan Greenbaum filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary(Cohen, Frances) (Entered: 04/26/2020)

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31 AFFIDAVIT re 28 Response (not to Motion) Declaration of Christopher Brackett filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary (Attachments: # 1 1 - 3/13/20 Memo from SCDC, # 2 2 - CDC Guidelines in English and Spanish, # 3 3 - Signs to Sleep Head to Toe, # 4 4 - 4/10/20 ICE Guidance on Covid-19, # 5 5 - CDC Interim Guidance dated 3/23/20)(Cohen, Frances) (Entered: 04/26/2020)
32 Emergency MOTION to Certify Class Provisional Certification of Class for Purposes of Medical Record Provision filed by Robson Xavier Gomes.Follow up on Objection on 5/11/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(Warecki, Nathan) (Entered: 04/26/2020)
ENDORSED ORDER granting 27 Motion To Seal the Attachment to the Notice of Status of Expedited Discovery Requests. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 04/27/2020)
ENDORSED ORDER granting 29 Assented to Motion to Supplement Record. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 04/27/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. MOTION HEARING held on 4/27/2020 re 9 Emergency MOTION Expedited Bail Hearings for Plaintiffs and all Putative Class Members. Order to issue. (Court Reporter: Liza Dubois) (Pltfs Atty: Nathan Warecki, Gilles Bissonnette, W. Scott O'Connell) (Defts Atty: Frances Cohen, Robert Rabuck)(Total Hearing Time: 1 hour, 50 minutes) (de) (Entered: 04/27/2020)
ENDORSED ORDER denying as moot 32 Motion to Certify Class Provisional Certification of Class for Purposes of Medical Record Provision. Text of Order: For the reasons stated on the record at today's hearing, this motion is now moot and is therefore denied. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 04/27/2020)
34 ORDER. On April 27, 2020, the court held a video hearing to give parties the opportunity to address the legal standards related to petitioners emergency motion for expedited bail hearings. Doc. no. 9. The court summarizes the governing principles and sets forth next steps and deadlines. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 04/27/2020)

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37 Returns of Service Executed as to Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. Served on 4/23/2020, 4/24/2020. (Attachments: # 1 Green card for US Atty General)(de) (Entered: 04/29/2020)
NOTICE of Hearing. Evidentiary Hearing set for 5/1/2020 at 10:00 AM via video conference before Chief Judge Landya B. McCafferty.(de) (Entered: 04/28/2020)
35 Assented to MOTION for David Fathi to Appear Pro Hac Vice (Filing fee $ 100, Receipt # ANHDC-1970384.) filed by Robson Xavier Gomes. (Attachments: # 1 Exhibit (Affidavit) A - Affidavit of David Fathi in Support of Motion for Admission Pro Hac Vice)(Warecki, Nathan) (Entered: 04/28/2020)
36 Assented to MOTION for Eunice Cho to Appear Pro Hac Vice (Filing fee $ 100, Receipt # ANHDC-1970385.) filed by Robson Xavier Gomes. (Attachments: # 1 Exhibit (Affidavit) A - Affidavit of Eunice Cho in Support of Motion for Admission Pro Hac Vice)(Warecki, Nathan) (Entered: 04/28/2020)
38 US Marshal Service of Process re: served on 4/20/2020 on Superintendent Brackett, SCDOC.(de) (Entered: 04/29/2020)
ENDORSED ORDER granting 35 Motion for David Fathi to Appear Pro Hac Vice; granting 36 Motion for Eunice Cho to Appear Pro Hac Vice. Text of Order: Granted. Local counsel shall comply with all obligations required by L.R. 83.2(b) absent order of the court. So Ordered by Chief Judge Landya B. McCafferty.
The clerks office will provide the admitted attorney with instructions on how to obtain access to electronic filing by separate email. The admitted attorney must have an individual upgraded PACER account, not a shared firm account, to electronically file in the District of New Hampshire. After obtaining e-filing access, the admitted attorney must file an appearance to begin receiving electronic notices.(gla) (Entered: 04/29/2020)
39 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Federal Respondents' Weekly Status Report(Ollila, Terry) (Entered: 04/29/2020)
40 Supplemental Declaration of Superintendent Christopher Brackett by Immigration and Customs Enforcement, Acting Field Office Director,

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US Department of Homeland Security, Acting Secretary(Ollila, Terry) (Entered: 04/29/2020)
41 Assented to MOTION for Michael Tan to Appear Pro Hac Vice (Filing fee $ 100, Receipt # ANHDC-1970760.) filed by Robson Xavier Gomes.(Bissonnette, Gilles) (Entered: 04/29/2020)
42 Assented to MOTION for OMAR C. JADWAT to Appear Pro Hac Vice (Filing fee $ 100, Receipt # ANHDC-1970766.) filed by Robson Xavier Gomes.(Bissonnette, Gilles) (Entered: 04/29/2020)
43 Assented to MOTION to Extend Time to Object/Respond to 5 Amended Complaint,, to May 7, 2020 filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 04/29/2020)
ENDORSED ORDER granting 43 Motion to Extend Time to Object/Respond to 5 Amended Complaint. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.Follow up on Objection on 5/7/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(gla) (Entered: 04/30/2020)
44 NOTICE of Petitioners' Supplemental Authority by Robson Xavier Gomes. (Attachments: # 1 Exhibit A: Zepeda Rivas v. Jennings, 20-cv02731 Order (Apr. 29, 2020))(Warecki, Nathan) (Entered: 04/30/2020)
45 Assented to MOTION for Marx P. Calderon to Appear Pro Hac Vice (Filing fee $ 100, Receipt # ANHDC-1971332.) filed by Robson Xavier Gomes. (Attachments: # 1 Exhibit (Affidavit))(Warecki, Nathan) (Entered: 04/30/2020)
46 Assented to MOTION for Colin T. Missett to Appear Pro Hac Vice (Filing fee $ 100, Receipt # ANHDC-1971334.) filed by Robson Xavier Gomes. (Attachments: # 1 Exhibit (Affidavit))(Warecki, Nathan) (Entered: 04/30/2020)
ENDORSED ORDER granting 42 Motion for Omar C. Jadwat to Appear Pro Hac Vice. Text of Order: Granted. Local counsel shall comply with all obligations required by L.R. 83.2(b) absent order of the court. So Ordered by Chief Judge Landya B. McCafferty.
The clerks office will provide the admitted attorney with instructions on how to obtain access to electronic filing by separate email. The admitted attorney must have an individual upgraded PACER account, not a shared firm account, to electronically file in

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the District of New Hampshire. After obtaining e-filing access, the admitted attorney must file an appearance to begin receiving electronic notices.(gla) (Entered: 04/30/2020)
ENDORSED ORDER granting 41 Motion for Michael Tan to Appear Pro Hac Vice. Text of Order: Granted. Local counsel shall comply with all obligations required by L.R. 83.2(b) absent order of the court. So Ordered by Chief Judge Landya B. McCafferty.
The clerks office will provide the admitted attorney with instructions on how to obtain access to electronic filing by separate email. The admitted attorney must have an individual upgraded PACER account, not a shared firm account, to electronically file in the District of New Hampshire. After obtaining e-filing access, the admitted attorney must file an appearance to begin receiving electronic notices.(gla) (Entered: 04/30/2020)
47 JOINT STATEMENT OF MATERIAL FACTS by Robson Xavier Gomes(Bissonnette, Gilles) (Entered: 04/30/2020)
48 ORDER Re: Public Access Findings. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/01/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. EVIDENTIARY HEARING held on 5/1/2020. Witnessess Appearing: Superintendent Christopher Brackett; Bairon Monroy Rosales (Interpreter Margarita Cardenas sworn); Robson Xavier Gomes; Rommel Chavez. ORAL ORDER issued as to most vulnerable and high risk detainees as stated on the record at today's hearing - bail hearings to begin on May 4, 2020 (11:00 a.m., 2:00 p.m., and 3:30 p.m.). Counsel to identify the 3 individuals for bail hearings and notify the clerk's office. FURTHER WRITTEN ORDER TO ISSUE. (Court Reporter: Liza Dubois (AM/Part 1); Brenda Hancock (PM/Part 2)) (Pltfs Atty: Nathan Warecki, Gilles Bissonnette, John Newman) (Defts Atty: Frances Cohen, Robert Rabuck, Terry Ollila)(Total Hearing Time: 7 hours, 15 minutes) (Total Hearing Time: 7 hours, 15 minutes) (de) Modified on 5/5/2020 to add: interpreter information (de). (Entered: 05/02/2020)
49 NOTICE of Attorney Appearance by SangYeob Kim on behalf of Robson Xavier Gomes Attorney SangYeob Kim added to party Robson Xavier Gomes(pty:pet).(Kim, SangYeob) (Entered: 05/02/2020)
NOTICE of Hearing. Bail Hearing for detainee (to be determined) set for 5/4/2020 at 11:00 AM via video conference before Chief Judge Landya B. McCafferty.(de) (Entered: 05/02/2020)

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NOTICE of Hearing. Bail Hearing for detainee (to be determined) set for 5/4/2020 at 02:00 PM via video conference before Chief Judge Landya B. McCafferty.(de) (Entered: 05/03/2020)
NOTICE of Hearing. Bail Hearing for detainee (to be determined) set for 5/4/2020 at 03:30 PM via video conference before Chief Judge Landya B. McCafferty.(de) (Entered: 05/03/2020)
NOTICE of Hearing. Telephone Conference set for 5/4/2020 at 09:00 AM before Chief Judge Landya B. McCafferty. (de) (Entered: 05/04/2020)
Deadlines terminated: Bail Hearingsscheduled on 05/04/2020 at 11:00, 2:00 and 3:30 p.m. today are to be rescheduled. There will be one hearing today at 3:00 p.m. (de) (Entered: 05/04/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. TELEPHONE CONFERENCE held on 5/4/2020. Order(s) to issue. (Court Reporter: Susan Batemen) (Pltfs Atty: Nathan Warecki, Gilles Bissonnette, John Newman, W. Scott O'Connell, Ronald Abramson, SangYeob Kim) (Defts Atty: Frances Cohen, Robert Rabuck, Terry Ollila)(Total Hearing Time: 1 hour, 14 minutes) (de) (Entered: 05/04/2020)
NOTICE of Hearing. Bail Hearing for Elizier Goncalves De Matos set for 5/4/2020 at 03:00 PM via video conference before Chief Judge Landya B. McCafferty.(de) (Entered: 05/04/2020)
50 ORDER. For the following reasons contained herein, the court provisionally certifies the proposed class of all individuals who are now held in civil immigration detention at SCDOC for the purpose of facilitating expedited bail hearings of those individuals. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/04/2020)
51 ORDER Re: Public Access Findings for De Matos Bail Hrg. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/04/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. Interpreter Claudia Azoff sworn. Bail Hearing for Elizier Goncalves De Matos held on 5/4/2020. Petitioner to remain detained, order to issue. (Court Reporter: Brenda K. Hancock) (Pltfs Atty: Gilles R. Bissonnette, SangYeob Kim, Nathan P. Warecki, Ronald L. Abramson, John P. Newman, W. Scott O'Connell) (Defts Atty: Frances Susan Cohen, Terry L. Ollila, Robert J. Rabuck)(Total Hearing Time: 1

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hour 10 minutes) (js) Modified on 5/4/2020 to add: Interpreter information(js). (Entered: 05/04/2020)
52 ORDER RE Medical Information. So Ordered by Chief Judge Landya B. McCafferty.(js) (Entered: 05/04/2020)
53 ORDER RE ELIZIER GONCALVES DE MATOS. So Ordered by Chief Judge Landya B. McCafferty.(js) (Entered: 05/04/2020)
ENDORSED ORDER granting 45 Motion for Marx P. Calderon to Appear Pro Hac Vice. Text of Order: Granted. Local counsel shall comply with all obligations required by L.R. 83.2(b) absent order of the court. So Ordered by Chief Judge Landya B. McCafferty.
The clerks office will provide the admitted attorney with instructions on how to obtain access to electronic filing by separate email. The admitted attorney must have an individual upgraded PACER account, not a shared firm account, to electronically file in the District of New Hampshire. After obtaining e-filing access, the admitted attorney must file an appearance to begin receiving electronic notices.(gla) (Entered: 05/05/2020)
ENDORSED ORDER granting 46 Motion for Colin T. Missett to Appear Pro Hac Vice. Text of Order: Granted. Local counsel shall comply with all obligations required by L.R. 83.2(b) absent order of the court. So Ordered by Chief Judge Landya B. McCafferty.
The clerks office will provide the admitted attorney with instructions on how to obtain access to electronic filing by separate email. The admitted attorney must have an individual upgraded PACER account, not a shared firm account, to electronically file in the District of New Hampshire. After obtaining e-filing access, the admitted attorney must file an appearance to begin receiving electronic notices.(gla) (Entered: 05/05/2020)
NOTICE of Hearing. BAIL HEARING for detainee Ang Myo Thet set for 5/5/2020 02:15 PM via video conference before Chief Judge Landya B. McCafferty.(js) (Entered: 05/05/2020)
NOTICE of Hearing. BAIL HEARING for detainee Adekunle Adeyanju set for 5/5/2020 03:15 PM via video conference before Chief Judge Landya B. McCafferty.(js) (Entered: 05/05/2020)
54 Assented to MOTION to Extend Time to Object/Respond to 7 MOTION for Preliminary Injunction and Motion for Expedited Discovery, 14 MOTION to Certify Class and Appointment of Class Counsel, 5 Amended Complaint,, to May 15, 2020 filed by Immigration

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and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 05/05/2020)
55 ORDER RE Public Access Findings for Aung Myo Thet Bail Hearing. So Ordered by Chief Judge Landya B. McCafferty.(js) (Entered: 05/05/2020)
56 ORDER RE Public Access Findings for Adekunle Adeyanju Bail Hearing. So Ordered by Chief Judge Landya B. McCafferty.(js) (Entered: 05/05/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. Interpreter sworn: Lune Pieper. Bail Hearing for Aung Myo Thet held on 5/5/2020. Petitioner to be released on conditions. Status conference to be held on 7/1/2020. (Court Reporter: Liza Dubois) (Pltfs Atty: Gilles R. Bissonnette, SangYeob Kim, Nathan P. Warecki, Ronald L. Abramson, John P. Newman, W. Scott O'Connell) (Defts Atty: Frances Susan Cohen, Terry L. Ollila, Robert J. Rabuck)(Total Hearing Time: 50 minutes) (js) (Entered: 05/05/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. Bail Hearing for Adekunle Adeyanju held on 5/5/2020. Petitioner to be released on conditions. Status conference to be held on 7/1/2020. (Court Reporter: Liza Dubois) (Pltfs Atty: Gilles R. Bissonnette, SangYeob Kim, Nathan P. Warecki, Ronald L. Abramson, John P. Newman, W. Scott O'Connell) (Defts Atty: Frances Susan Cohen, Terry L. Ollila, Robert J. Rabuck)(Total Hearing Time: 50 minutes) (js) (Entered: 05/05/2020)
ENDORSED ORDER granting 54 Motion to Extend Time to Object/Respond to 7 Motion for Preliminary Injunction and 14 Motion to Certify Class, 5 Amended Complaint. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty. Follow up on Objection on 5/15/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (gla) (Entered: 05/06/2020)
57 NOTICE of Attorney Appearance by Cathy J. Green on behalf of Robson Xavier Gomes Attorney Cathy J. Green added to party Robson Xavier Gomes(pty:pet).(Green, Cathy) (Entered: 05/06/2020)
NOTICE of Hearing. BAIL HEARINGS for detainees Rommel Chavez, Robson Xavier Gomes, Ernest Nsai set via video conference for 5/7/2020 beginning at 09:30 AM before Chief Judge Landya B. McCafferty.(js) (Entered: 05/06/2020)

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58 NOTICE of Attorney Appearance by Emily Assunta White on behalf of Robson Xavier Gomes Attorney Emily Assunta White added to party Robson Xavier Gomes(pty:pet).(White, Emily) (Entered: 05/06/2020)
59 NOTICE of Weekly Status Report by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 05/06/2020)
60 NOTICE of Hearing. BAIL HEARINGS for Francis Mejia Gonzalez, Julian Cruz-Lainez, and Anthony George-Hamilton set VIA VIDEO CONFERENCE for 5/8/2020 09:30 AM before Chief Judge Landya B. McCafferty.(js) Modified on 5/7/2020 to add: Document number was entered in error. There is no document associated with this entry. (gla). (Entered: 05/06/2020)
61 ORDER Re: Public Access Findings for Rommel Chavez. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/07/2020)
62 ORDER Re: Public Access Findings for Robson Xavier Gomes Bail Hearing. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/07/2020)
63 ORDER Re: Public Access Findings Ernest Nsai Bail Hearing. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/07/2020)
64 NOTICE of Attorney Appearance by Colin Missett on behalf of Robson Xavier Gomes Attorney Colin Missett added to party Robson Xavier Gomes(pty:pet).(Missett, Colin) (Entered: 05/07/2020)
65 ORDER Re: Rommel Chavez. Accordingly, it is ORDERED that the petitioner remain detained pending a ruling on the habeas petition. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/07/2020)
ENDORSED ORDER. Text of Order: On or before 5 p.m. on today's date, counsel shall submit the proposed bail orders for the four detainees that the court has ordered released. If counsel need an extension of time and that extension is assented-to, simply request that with my case manager via email. To help clarify the process regarding bail hearings and the imposition of bail conditions, the court issues the following two orders. 1.) Going forward, counsel shall submit proposed bail orders no later than 30 minutes before the start of the scheduled video bail hearing. If multiple bail hearings are scheduled for the same block of time, counsel shall submit proposed

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bail orders for each/ALL detainee(s) 30 minutes before the start of the first hearing. 2.) On or before Monday, May 11, 2020, counsel shall propose a template bail order for the Gomes bail hearings going forward. That template order should contain all of the conditions of release common to each releasee in this Gomes litigation, and shall also include a list of other potential conditions (such as those commonly issued by ICE when it releases someone in its custody) for the court to consider and edit as necessary. The court anticipates that the list of optional conditions would be over-inclusiveand allow for more severe monitoring for the appropriate detainee. Were counsel to include a blank checkbox next to the specific condition (much like that on the courts template release order in criminal cases), such a template would permit the court to put a checkmark in the box to indicate that it is imposing that condition in the specific case. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/07/2020)
66 NOTICE of Attorney Appearance by Marx Calderon on behalf of Robson Xavier Gomes Attorney Marx Calderon added to party Robson Xavier Gomes(pty:pet).(Calderon, Marx) (Entered: 05/07/2020)
67 Mejia Gonzalez bail hearing exhibit list by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary(Cohen, Frances) (Entered: 05/07/2020)
68 Cruz Lainez bail hearing exhibit list by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary(Cohen, Frances) (Entered: 05/07/2020)
69 ORDER SETTING CONDITIONS OF RELEASE RELATIVE TO RELEASE OF INDIVIDUAL CLASS MEMBER AUNG MYO THET. So Ordered by Chief Judge Landya B. McCafferty. [Counsel shall have Petitioner Thet sign conditions and submit to clerk's office].(de) (Additional attachment(s) added on 5/10/2020: # 1 SIGNED COPY - SIGNED BY MR. THET) (de). (Entered: 05/07/2020)
70 Julian Cruz-Lainez's exhibit list by Robson Xavier Gomes(Calderon, Marx) (Entered: 05/07/2020)
71 Exhibit List for Anthony George Hamilton by Robson Xavier Gomes.(Abramson, Ronald) (Entered: 05/07/2020)
72 ORDER SETTING CONDITIONS OF RELEASE RELATIVE TO RELEASE OF INDIVIDUAL CLASS MEMBER ERNEST NSAI.

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So Ordered by Chief Judge Landya B. McCafferty. [Counsel shall have Petitioner Nsai sign conditions and submit to clerk's office].(de) (Entered: 05/07/2020)
73 ORDER SETTING CONDITIONS OF RELEASE RELATIVE TO RELEASE OF INDIVIDUAL CLASS MEMBER ROBSON XAVIER GOMES. So Ordered by Chief Judge Landya B. McCafferty.[Counsel shall have Petitioner Gomes sign conditions and submit to clerk's office].(de) (Entered: 05/07/2020)
74 Exhibit List in Support of the Bail Application of Francis Yermin Mejia Gonzalez by Robson Xavier Gomes.(Missett, Colin) (Entered: 05/07/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/7/2020 re: Bail Hearing for Rommel Chavez. Request for release denied. Order to issue/issued. (Court Reporter: Susan Bateman) (Pltfs Atty: SangYeob Kim) (Defts Atty: Robert Rabuck)(Total Hearing Time: 35 minutes) (de) (Entered: 05/10/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/7/2020 re: Bail Hearing for Robson Xavier Gomes. To be released on conditions. (Court Reporter: Susan Bateman) (Pltfs Atty: John Newman) (Defts Atty: Robert Rabuck)(Total Hearing Time: 45 minutes) (de) (Entered: 05/10/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/7/2020 re: Bail Hearing for Ernest Nsai. To be released on conditions. (Court Reporter: Susan Bateman) (Pltfs Atty: SangYeob Kim) (Defts Atty: Terry Ollila)(Total Hearing Time: 50 minutes) (de) (Entered: 05/10/2020)
75 ORDER Re: Public Access Findings for Anthony GeorgeHamilton. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/08/2020)
76 ORDER Re: Public Access Findings for Julian Cruz-Lainez. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/08/2020)
77 Exhibit List in support of bail application of Robson Xavier Gomes by Robson Xavier Gomes.(Newman, John) (Entered: 05/08/2020)

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78 ORDER Re: Public Access Findings for Francis Mejia Gonzalez. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/08/2020)
79 NOTICE of Covid-19 Test by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 05/08/2020)
80 Parties' PROPOSED Order setting conditions of release re Anthony George Hamilton by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary(Rabuck, Robert) Modified on 5/8/2020 to add: Proposed (de). (Entered: 05/08/2020)
81 Anthony George Hamilton Bail Hearing Exhibit List by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary(Cohen, Frances) (Entered: 05/08/2020)
82 Exhibit List to Notice of Hearing by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 05/08/2020)
83 Exhibit List to 63 Order, 72 Order, Notice of Hearing by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 05/08/2020)
84 Exhibit List to 55 Order, Notice of Hearing, 69 Order, by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 05/08/2020)
85 Exhibit List Involving Elizier Goncalves De Matos to 51 Order, Special Hearing,, by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 05/08/2020)
86 ORDER SETTING CONDITIONS OF RELEASE RELATIVE TO RELEASE OF INDIVIDUAL CLASS MEMBER ANTHONY GEORGE-HAMILTON. So Ordered by Chief Judge Landya B. McCafferty.[Counsel shall have Petitioner George-Hamilton sign conditions and submit to clerk's office].(de) (Additional attachment(s) added on 5/8/2020: # 1 UNREDACTED VERSION OF ORDER/CONDITIONS) (de). (Additional attachment(s) added on

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5/11/2020: # 2 SIGNED COPY - SIGNED BY MR. GEORGEHAMILTON) (de). (Entered: 05/08/2020)
87 Exhibit List For Ernest Nsai's Bail Hearing to Notice of Hearing by Robson Xavier Gomes.(Kim, SangYeob) (Entered: 05/08/2020)
88 Exhibit List For Aung Myo Thet's Bail Hearing to Notice of Hearing by Robson Xavier Gomes.(Kim, SangYeob) (Entered: 05/08/2020)
89 Exhibit List For Rommel Chavez's Bail Hearing to Notice of Hearing by Robson Xavier Gomes.(Kim, SangYeob) (Entered: 05/08/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. TELEPHONE CONFERENCE (Sealed) held on 5/8/2020 for Anthony George-Hamilton, Julian Cruz-Lainez, Francis Mejia Gonzlaez re: med. information. Interpreter: Patricia Bluestein. (Court Reporter: Brenda Hancock) (Pltfs Atty: Ronald Abramson, Marx Calderon, Colin Missett) (Defts Atty: Frances Cohen, Robert Rabuck, Terry Ollila)(Total Hearing Time: 35 minutes) (de) (Entered: 05/10/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/8/2020 via video conference re: Bail Hearing for Francis Mejia Gonzalez. Interpreter: Patricia Bluestein. Hearing continued for the reasons as stated on the record. (Court Reporter: Brenda Hancock) (Pltfs Atty: Colin Missett) (Defts Atty: Frances Cohen)(Total Hearing Time: 25 minutes) (de) (Entered: 06/16/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/8/2020 via video conference re: Bail Hearing for Julian Cruz-Lainez. Hearing continued for the reasons stated on the record. Interpreter: Patricia Bluestein. (Court Reporter: Brenda Hancock) (Pltfs Atty: Max Calderon) (Defts Atty: Frances Cohen)(Total Hearing Time: 30 minutes) (de) (Entered: 06/17/2020)
Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/8/2020 via video conference re: Bail Hearing for Anthony George-Hamilton. (Court Reporter: Brenda Hancock) (Pltfs Atty: Ronald Abramson) (Defts Atty: Robert Rabuck)(Total Hearing Time: 50 minutes) (de) (Entered: 06/17/2020)
ENDORSED ORDER. Text of Order: On Friday, May 8, 2020, the court ordered counsel for both sides to propose additional conditions to the courts template bail order (a fillable PDF with numerous

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options for the court to impose depending on the individual detainee). Under the circumstances, the court permitted this to be submitted via email over the weekend to the courts case manager. Counsel for the petitioners communicated this afternoon that they had no additional suggestions. Rather than make suggestions to the template bail order via email, counsel for respondents raised a legal objection to a section of the courts bail order. The section of the bail order to which respondents object prohibits ICE from arresting a petitioner while on release in this case unless arrested on a warrant from a federal judge or pursuant to an order of removal to occur within 2 weeks. To be clear, the court put on the record during the first bail hearing in this case where the court released a petitioner that it intended to include this re-arrest condition in the courts bail order. The court explained to counsel that it was borrowing the re-arrest provision from Judge Youngs bail order in Savino. The court does not recall the government raising an objection at that time; indeed, the government raised objections for the first time on Friday, and now via an email on todays date. To the extent respondents intend to raise a legal objection to the re-arrest provision in the courts release order, respondents must do so in a written filing so that petitioners may properly respond. Any such motion shall be filed on or before this evening, May 9, 2020 at midnight. Petitioners shall file any response on or before tomorrow, May 10, 2020, at 3 p.m. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/09/2020)
90 Exhibit List for Zeike Alexander Reyes Pujols by Robson Xavier Gomes.(Kim, SangYeob) (Entered: 05/10/2020)
91 Zeike Reye Pujols - Exhibit List by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary(Cohen, Frances) (Entered: 05/10/2020)
NOTICE of Hearing. BAIL HEARINGS for Zeike Alexander Reyes Pujols AND Max Lagroand Gbetibouo set for 5/11/2020 at 09:30 AM via video conference before Chief Judge Landya B. McCafferty. Interpreter Patricia Bluestein has been scheduled.(de) (Entered: 05/10/2020)
92 NOTICE of Attorney Appearance by John S. Davis on behalf of US Department of Homeland Security, Acting Secretary Attorney John S. Davis added to party US Department of Homeland Security, Acting Secretary(pty:res).(Davis, John) (Entered: 05/10/2020)
93 Exhibit List by US Department of Homeland Security, Acting Secretary.(Davis, John) (Entered: 05/10/2020)

05/10/2020 94 Exhibit List for Max Lagroand Gbetibouo by Robson Xavier Gomes.(Quillen, Henry) (Entered: 05/10/2020)

05/11/2020 95 NOTICE of Proposed Bail Conditions for Max Gbetibouo by Robson Xavier Gomes.(Quillen, Henry) (Entered: 05/11/2020)

05/11/2020

96 NOTICE of Proposed Bail Conditions for Zeike Alexander Reyes Pujols by Robson Xavier Gomes.(Kim, SangYeob) (Entered: 05/11/2020)

05/11/2020

NOTICE of ECF Filing Error re: 95 Notice (Other), 96 Notice (Other). Counsel shall refile these documents - it is unclear which fields were completed; counsel should print/convert to pdf and save before filing and then re-file. If the filing party has any questions concerning this notice, please contact the judge's case manager at 603-2251423.Compliance Deadline set for 5/11/2020.(de) (Entered: 05/11/2020)

05/11/2020

97 ORDER Re: Public Access Findings for Max Gbetibouo. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/11/2020)

05/11/2020

98 ORDER Re: Public Access Findings for Zeike Alexander Reyes Pujols. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/11/2020)

05/11/2020

99 Exhibit to ECF - Filing Error - Action Required, Notice of Hearing by Robson Xavier Gomes., Proposed Bail Conditions for Zeike Alexander Reyes Pujols by Robson Xavier Gomes(Kim, SangYeob) (Entered: 05/11/2020)

05/11/2020

100 NOTICE of Attorney Appearance by Georgiana L. Konesky on behalf of Immigration and Customs Enforcement, Acting Field Office Director, Strafford County Department of Corrections, Superintendent, US Department of Homeland Security, Acting Secretary Attorney Georgiana L. Konesky added to party Immigration and Customs Enforcement, Acting Field Office Director(pty:res), Attorney Georgiana L. Konesky added to party Strafford County Department of Corrections, Superintendent(pty:res), Attorney Georgiana L. Konesky added to party US Department of Homeland Security, Acting Secretary(pty:res).(Konesky, Georgiana) (Entered: 05/11/2020)

05/11/2020

101 ORDER SETTING CONDITIONS OF RELEASE RELATIVE TO RELEASE OF INDIVIDUAL CLASS MEMBER Zeike Alexander Reyes Pujols. So Ordered by Chief Judge Landya B. McCafferty.(de) (Additional attachment(s) added on 5/11/2020:

# 1 UNREDACTED VERSION OF ORDER/CONDITIONS) (de). (Entered: 05/11/2020)

05/11/2020

102 Exhibit List (Amended) by Immigration and Customs Enforcement, Acting Field Office Director, Strafford County Department of Corrections, Superintendent, US Department of Homeland Security, Acting Secretary. Attorney John S. Davis added to party Immigration and Customs Enforcement, Acting Field Office Director(pty:res), Attorney John S. Davis added to party Strafford County Department of Corrections, Superintendent(pty:res).(Davis, John) (Entered: 05/11/2020)

05/11/2020

103 Villar Bail Hearing Exhibit List by Immigration and Customs Enforcement, Acting Field Office Director, Strafford County Department of Corrections, Superintendent, US Department of Homeland Security, Acting Secretary(Konesky, Georgiana) (Entered: 05/11/2020)

05/11/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. TELEPHONE CONFERENCE (Sealed) held on 5/11/2020 for Zeike A. Reyes Pujols [Interpreter Patricia Bluestein] and Max Gbetibouo. (Court Reporter: Liza Dubois) (Pltfs Atty: SangYeob Kim, Cathy Green, Henry Quillen, Gilles Bissonette, Nathan Warecki) (Defts Atty: Frances Cohen, John Davis, Seth Aframe)(Total Hearing Time: 20 minutes) (de) (Entered: 05/11/2020)

05/11/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/11/2020 - Bail Hearing for Max Gbetibouo. Hearing continued at the request of petitioners for the reasons as stated on the record at today's hearing. (Court Reporter: Liza Dubois) (Pltfs Atty: Henry Quillen) (Defts Atty: John Davis)(Total Hearing Time: 8 minutes) (de) (Entered: 05/11/2020)

05/11/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/11/2020 re: Bail Hearing for Zeike Alexander Reyes Pujols. Order of release to issue/issued; all release conditions reviewed. Interpreter: Patricia Bluestein. (Court Reporter: Liza Dubois) (Pltfs Atty: Cathy Green) (Defts Atty: Seth Aframe)(Total Hearing Time: 45 minutes) (de) Modified on 5/11/2020 to add: Interpreter Information (de). (Entered: 05/11/2020)

05/11/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. STATUS CONFERENCE re: Julian Cruz-Lainez held on 5/11/2020 (counsel only). Parties updated court since bail hearing continued on 5/8. (Court Reporter: Liza Dubois) (Pltfs Atty: SangYeob Kim, Marx Calderon) (Defts Atty: Frances Cohen)(Total Hearing Time: 9 minutes) (de) (Entered: 05/11/2020)

05/11/2020 104 Exhibit List (Amended) for Max Lagroand Gbetibouo by Robson Xavier Gomes.(Quillen, Henry) (Entered: 05/11/2020)

05/11/2020

105 NOTICE of Proposed Bail Conditions for Max Gbetibouo (Amended, Public Version) by Robson Xavier Gomes.(Quillen, Henry) (Entered: 05/11/2020)

05/11/2020 106 Exhibit List for Francis Villar by Robson Xavier Gomes.(Gilbert, Laurel) (Entered: 05/11/2020)

05/11/2020 107 NOTICE of Proposed Bail Conditions for Francis Villar by Robson Xavier Gomes.(Gilbert, Laurel) (Entered: 05/11/2020)

05/11/2020

115 TRANSCRIPT of Proceedings for Evidentiary Hearing (Morning) held on 5/1/2020. Court Reporter: Liza Dubois, Telephone # 603 225-1442. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 6/1/2020. Redacted Transcript Follow Up 6/11/2020. Release of Transcript Restriction set for 8/6/2020.(de) (Entered: 05/13/2020)

05/12/2020

NOTICE of Hearing. BAIL Hearings set for 5/12/2020 at 09:15 AM via video conference for Francis Villar and Max Gbetibouo before Chief Judge Landya B. McCafferty. Interpreter Patricia Bluestein has been scheduled for Francis Villar.(de) Modified on 5/12/2020 to add: via video conference (de). (Entered: 05/12/2020)

05/12/2020

108 ORDER Re: Public Access Findings for Francis Villar (Bail Hearing). So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/12/2020)

05/12/2020

109 ORDER Re: Public Access Findings for Max Gbetibouo (Bail Hearing). So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/12/2020)

05/12/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. TELEPHONE CONFERENCE (Sealed) held on 5/12/2020 for Francis Villar (Interpreter: Patricia Bluestein). (Court Reporter: Susan Bateman) (Pltfs Atty: Laurel Gilbert, SangYeob Kim, Gilles Bissonnette, Nathan Warecki, Scott O'Connell) (Defts Atty: Frances Cohen, Georgiana Konesky, Terry Ollila)(Total Hearing Time: 7 minutes) (de) (Entered: 05/12/2020)

05/12/2020

110 Attached to this docket entry is the template for release orders in this case. Counsel are still using an older version. Going forward, please use this form. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/12/2020)

05/12/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/12/2020 via video conference re: Bail Hearing for Francis Villar (Interpreter sworn: Patricia Bluestein). The government has met its burden as to risk of flight. Order to issue. (Court Reporter: Susan Bateman) (Pltfs Atty: Laurel Gilbert) (Defts Atty: Georgiana Konesky)(Total Hearing Time: 42 minutes) (de) Modified on 5/12/2020 to add: as to risk of flight (de). (Entered: 05/12/2020)

05/12/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/12/2020 via video conference re: Bail Hearing for Max Gbetibouo. Government has met its burden. Order to issue. (Court Reporter: Susan Bateman) (Pltfs Atty: Henry Quillen) (Defts Atty: John Davis)(Total Hearing Time: 43 minutes) (de) (Entered: 05/12/2020)

05/12/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. STATUS CONFERENCE W/Counsel via video conference held on 5/12/2020. (Court Reporter: Susan Bateman) (Pltfs Atty: SangYeob Kim) (Defts Atty: Frances Cohen, Terry Ollila)(Total Hearing Time: 24 minutes) (de) (Entered: 05/12/2020)

05/12/2020

111 ORDER Re: Francis Villar. Accordingly, it is ORDERED that the petitioner remain detained pending a ruling on the habeas petition. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/12/2020)

05/12/2020

112 ORDER Re: Max Lagroand Gbetibouo. Accordingly, it is ORDERED that the petitioner remain detained pending a ruling on the habeas petition. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/12/2020)

05/12/2020

NOTICE of Hearing. Special Hearing - Bail Hearing for Marcus Giotto set for 5/13/2020 at 09:15 AM via video conference before Chief Judge Landya B. McCafferty.(de) (Entered: 05/12/2020)

05/12/2020

NOTICE of Hearing. Special Hearing - Bail Hearings (To Be Determined) set for 5/14/2020 at 09:30 AM via video conference before Chief Judge Landya B. McCafferty.(de) (Entered: 05/12/2020)

05/12/2020

NOTICE of Hearing. Special Hearing - Bail Hearing for Wilkin Guerrero Villar (Interpreter Patricia Bluestein has been scheduled) set for 5/15/2020 at 09:15 AM via video conference before Chief Judge Landya B. McCafferty.(de) Modified on 5/12/2020 to add: via video conference (de). Modified on 5/14/2020 to update TBD to Wilkin Guerrero Villar and add interpreter information (de). (Entered: 05/12/2020)

05/12/2020

113 Exhibit List Involving Marcus Giotto to Notice of Hearing by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 05/12/2020)

05/12/2020 114 NOTICE of Exhibit List on behalf of Marcus Giotto by Robson Xavier Gomes.(Strauss, Michael) (Entered: 05/12/2020)

05/12/2020

116 TRANSCRIPT of Proceedings for Evidentitiary Hearing (Afternoon) held on 5/1/2020. Court Reporter: Brenda Hancock, Telephone # 603 225-1454. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

05/13/2020

Redaction Request Follow Up 6/2/2020. Redacted Transcript Follow Up 6/12/2020. Release of Transcript Restriction set for 8/7/2020.(de) (Entered: 05/13/2020)
117 ORDER Re: Public Access Findings for Marcus Giotto (Bail Hearing). So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/13/2020)

05/13/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. TELEPHONE CONFERENCE (SEALED) held on 5/13/2020 re: Marcus Giotto. (Court Reporter: Brenda Hancock) (Pltfs Atty: Michael Strauss, SangYeob Kim, Nathan Warecki, Gilles Bissonnette, W. Scott O'Connell) (Defts Atty: Frances Cohen, Terry Ollila)(Total Hearing Time: 12 minutes) (de) (Entered: 05/13/2020)

05/13/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/13/2020 via video conference re: Bail Hearing for Marcus Giotto. As discussed on the record, the government has not met its burden. Release order reviewed with Mr. Giotto and to be issued. (Court Reporter: Brenda Hancock) (Pltfs Atty: Michael Strauss) (Defts Atty: Terry Ollila)(Total Hearing Time: 46 minutes) (de) (Entered: 05/13/2020)

05/13/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. STATUS CONFERENCE via video conference held on 5/13/2020. Brief discussion with counsel re: template release order and other case/administrative matters. (Court Reporter: Brenda Hancock) (Pltfs Atty: SangYeob Kim) (Defts Atty: Frances Cohen, Terry Ollila)(Total Hearing Time: 25 minutes) (de) (Entered: 05/13/2020)

05/13/2020

118 ORDER Setting Conditions of Release Relative to Release of Individual Class Member Marcus Giotto. So Ordered by Chief Judge Landya B. McCafferty.(de) (Additional attachment(s) added on 5/13/2020: # 1 UNREDACTED VERSION OF ORDER/CONDITIONS) (de). (Entered: 05/13/2020)

05/13/2020

Deadline terminated: Special Hearing 05/14/2020 cancelled - the parties have informed the court that they do not have any bail hearings to schedule for May 14, 2020. (de) (Entered: 05/13/2020)

05/13/2020

119 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report(Ollila, Terry) (Entered: 05/13/2020)

05/13/2020

120 Gomes Exhibit List for Bail Hearing by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary(Rabuck, Robert) (Entered: 05/13/2020)

05/14/2020

121 NOTICE of Attorney Appearance by Cam T. Le on behalf of Immigration and Customs Enforcement, Acting Field Office Director, Strafford County Department of Corrections, Superintendent, US Department of Homeland Security, Acting Secretary Attorney Cam T. Le added to party Immigration and Customs Enforcement, Acting Field Office Director(pty:res), Attorney Cam T. Le added to party Strafford

County Department of Corrections, Superintendent(pty:res), Attorney Cam T. Le added to party US Department of Homeland Security, Acting Secretary(pty:res).(Le, Cam) (Entered: 05/14/2020)

05/14/2020

ENDORSED ORDER. Text of Order: Counsel for petitioners have communicated via email today with the court's case manager about certain concerns related to ICE's impending transfer of detainees. To the extent petitioners intend the court to take legal action related to these concerns, a formal motion shall be filed. In such motion, counsel shall brief the court's authority in the context of a petition for a writ of habeas corpus to issue an injunction of the type they appear to seek here: preventing respondents from transferring petitioners out of this facility. Going forward, legal disputes shall be aired on the docket in the form of a motion and in accordance with local rules. Email correspondence is best left for procedural and scheduling matters. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/14/2020)

05/14/2020

Deadline terminated: Special Hearing/Bail Hearing for Wilkin Guerrero Villar 05/15/2020 cancelled at notice/request of the Petitioners. (de) (Entered: 05/14/2020)

05/14/2020

122 Emergency MOTION FOR RELIEF AS TO 8 TO 10 DETAINEES TO BE TRANSFERRED OUT OF THE STRAFFORD COUNTY DEPARTMENT OF CORRECTIONS ON MAY 19, 2020 filed by Robson Xavier Gomes.Follow up on Objection on 5/28/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(Bissonnette, Gilles) (Entered: 05/14/2020)

05/14/2020

123 ORDER re 9 Motion for Expedited Bail Hearings granting bail hearings for high-risk detainees but taking under advisement question of bail hearings for lower-risk detainees. Further hearing on May 29, 2020. So Ordered by Chief Judge Landya B. McCafferty.(gla) (Entered: 05/14/2020)

05/15/2020

ENDORSED ORDER RE 122 Emergency MOTION FOR RELIEF AS TO 8 TO 10 DETAINEES TO BE TRANSFERRED OUT OF THE STRAFFORD COUNTY DEPARTMENT OF CORRECTIONS ON MAY 19, 2020. Text of Order: Petitioners have filed an emergency motion seeking to stop the transfer of 8-10 detainees from SCHOC to another detention facility for non-removal purposes. See doc. no. 122. At this time, neither respondents nor the court know which detainees may be transferred. Before additional petitioners were added to the case, and the court provisionally certified detainees at SCHOC as a class, see doc. no. 50, the court

ordered respondents to provide the court with advance notice of the removal or transfer of petitioner Gomes out of the court's jurisdiction. See doc. no. 2. The court extends a notice requirement to all provisional class members. Accordingly, going forward, respondents shall provide the court with at least 72 hours advance notice of any scheduled removal or transfer of any civil immigration detainee at SCHOC out of the jurisdiction for non-removal purposes. Additionally, because the court has held that high-risk detainees are eligible for bail hearings, see doc. nos. 52, 123, the court orders respondents to immediately notify the court if the SCHOC, ICE, or any other medical records in respondents' custody or control indicates that a civil immigration detainee at SCHOC has a condition that makes them a high-risk detainee. A video hearing on petitioners' Emergency Motion for Relief (doc. no. 122) shall take place at 9 a.m. on Monday, May 18, 2020. To the extent respondents intend to object to the motion, they shall file that objection on an expedited basis. So Ordered by Chief Judge Landya B. McCafferty.

Motion Hearing set VIA VIDEO CONFERENCE for 5/18/2020 09:00 AM before Chief Judge Landya B. McCafferty.(js) (Entered: 05/15/2020)

05/15/2020

124 NOTICE by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 05/15/2020)

05/15/2020

125 NOTICE of Transfer of 9 Civil Immigration Detainees by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 05/15/2020)

05/15/2020

126 NOTICE of Removal of 5 Civil Immigration Detainees by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 05/15/2020)

05/15/2020

127 Assented to MOTION to Exceed Page Limitation filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 05/15/2020)

05/15/2020

128 MOTION to Dismiss for Failure to State a Claim filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.Follow up on Objection on 5/29/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP

45(c). (Attachments: # 1 Memorandum of Law)(Cohen, Frances) (Entered: 05/15/2020)

05/15/2020

129 OBJECTION to 14 MOTION to Certify Class and Appointment of Class Counsel filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. Follow up on Reply on 5/22/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law)(Cohen, Frances) (Entered: 05/15/2020)

05/15/2020

130 OBJECTION to 7 MOTION for Preliminary Injunction and Motion for Expedited Discovery filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. Follow up on Reply on 5/22/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law)(Cohen, Frances) (Entered: 05/15/2020)

05/16/2020

131 Addendum/ to 122 Emergency MOTION FOR RELIEF AS TO 8 TO 10 DETAINEES TO BE TRANSFERRED OUT OF THE STRAFFORD COUNTY DEPARTMENT OF CORRECTIONS ON MAY 19, 2020 by Robson Xavier Gomes. (Bissonnette, Gilles) (Entered: 05/16/2020)

05/16/2020

132 Emergency MOTION for Preliminary Injunction AND ADDITIONAL, EXPEDITED DISCOVERY filed by Robson Xavier Gomes. HEARING REQUESTED.Follow up on Objection on 6/1/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(Bissonnette, Gilles) (Entered: 05/16/2020)

05/17/2020

133 Addendum/ to 132 Emergency MOTION for Preliminary Injunction AND ADDITIONAL, EXPEDITED DISCOVERY (LISTING DISCOVERY REQUESTED) by Robson Xavier Gomes. (Bissonnette, Gilles) (Entered: 05/17/2020)

05/17/2020

134 NOTICE of Corrected Seventy-Two Hour Notice of Transfer of Petitioners by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 05/17/2020)

05/17/2020

135 OBJECTION to 122 Emergency MOTION FOR RELIEF AS TO 8 TO 10 DETAINEES TO BE TRANSFERRED OUT OF THE STRAFFORD COUNTY DEPARTMENT OF CORRECTIONS ON MAY 19, 2020 filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting

Secretary. Follow up on Reply on 5/26/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Exhibit (Affidavit) Declaration of Alan Greenbaum)(Cohen, Frances) (Entered: 05/17/2020)

05/17/2020

ENDORSED ORDER. Text of Order: A flurry of new motions have been filed over the weekend. Among other things, petitioners seek a court order prohibiting ICE from transferring detainees out of the SCHOC. Petitioners have not cited a single case giving this court that kind of authority. Nonetheless, the court has an ongoing case involving the 8 detainees who are subject to a May 19 transfer to a new facility. At the hearing tomorrow, respondents shall be prepared to provide answers to the following two threshold questions: (1) How many ICE detainees have been transferred into SCHOC since, April 17, 2020, the date of the filing of the First Amended Petition in this lawsuit? Please list the numbers by date between April 17 through May 17, 2020. The court is not interested in knowing the numbers of the short-term detainees who come to SCHOC on a Thursday and are removed the next Tuesday (and are quarantined the entire time they are housed at SCHOC). Rather, the court is interested in knowing the numbers of detainees who remain housed in the SCHOC after their transfer. (2) With respect to the facility (or facilities) to which the 8 detainees are being transferred, what is the current percentage capacity of those facilities? That is, SCHOC is currently at a 64% capacity; what is the corresponding percentage at the new facility (or facilities)? So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/17/2020)

05/17/2020

136 REPLY to Objection to Motion re 122 Emergency MOTION FOR RELIEF AS TO 8 TO 10 DETAINEES TO BE TRANSFERRED OUT OF THE STRAFFORD COUNTY DEPARTMENT OF CORRECTIONS ON MAY 19, 2020 filed by Robson Xavier Gomes. Surreply due by 5/22/2020. (Bissonnette, Gilles) (Entered: 05/17/2020)

05/17/2020

ENDORSED ORDER granting 127 Assented to Motion to Exceed Page Limit. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/18/2020)

05/18/2020

137 ORDER Re: Public Access Findings for May 18, 2020 Motion Hearing. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/18/2020)

05/18/2020 138 Rommel Alexander Chavez Bail Hearing Exhibits by Immigration and Customs Enforcement, Acting Field Office Director, US Department of

Homeland Security, Acting Secretary(Rabuck, Robert) (Entered: 05/18/2020)

05/18/2020

139 RESPONSE re 133 Addendum filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. (Attachments: # 1 Exhibit A Email Correspondence - REDACTED)(Cohen, Frances) (Entered: 05/18/2020)

05/18/2020

140 NOTICE of Attorney Appearance by Timothy C. Ayer on behalf of Robson Xavier Gomes Attorney Timothy C. Ayer added to party Robson Xavier Gomes(pty:pet).(Ayer, Timothy) (Entered: 05/18/2020)

05/18/2020

141 TRANSCRIPT of Proceedings for Telephone Conference Hearing held on 5/4/2020. Court Reporter: Susan Bateman, Telephone # 603 2251453. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 6/8/2020. Redacted Transcript Follow Up 6/18/2020. Release of Transcript Restriction set for 8/13/2020.(de) (Entered: 05/18/2020)

05/18/2020 05/18/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. MOTION HEARING held on 5/18/2020. (Court Reporter: Liza Dubois) (Pltfs Atty: Gilles Bissonnette, Nathan Warecki, SangYeob Kim) (Defts Atty: Frances Cohen, Robert Rabuck, Terry Ollila)(Total Hearing Time: 2 hours, 57 minutes) (de) (Entered: 05/18/2020)
NOTICE of Hearing re: 123 Order. Evidentiary Hearing set for 5/29/2020 at 12:30 PM before Chief Judge Landya B. McCafferty.(de) (Entered: 05/18/2020)

05/19/2020

142 NOTICE of Attorney Appearance by Anna Dronzek on behalf of Immigration and Customs Enforcement, Acting Field Office Director, Strafford County Department of Corrections, Superintendent, US

Department of Homeland Security, Acting Secretary Attorney Anna Dronzek added to party Immigration and Customs Enforcement, Acting Field Office Director(pty:res), Attorney Anna Dronzek added to party Strafford County Department of Corrections, Superintendent(pty:res), Attorney Anna Dronzek added to party US Department of Homeland Security, Acting Secretary(pty:res).(Dronzek, Anna) (Entered: 05/19/2020)

05/19/2020

143 NOTICE of Attorney Appearance by Kasey A Weiland on behalf of Immigration and Customs Enforcement, Acting Field Office Director, Strafford County Department of Corrections, Superintendent, US Department of Homeland Security, Acting Secretary Attorney Kasey A Weiland added to party Immigration and Customs Enforcement, Acting Field Office Director(pty:res), Attorney Kasey A Weiland added to party Strafford County Department of Corrections, Superintendent(pty:res), Attorney Kasey A Weiland added to party US Department of Homeland Security, Acting Secretary(pty:res).(Weiland, Kasey) (Entered: 05/19/2020)

05/19/2020

144 Attached is the latest fillable pdf for release orders in this case. This version addresses the electronic monitoring issue. Going forward, please use this as our template. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/19/2020)

05/19/2020

145 Waldemar Kaminski Bail Hearing Exhibit List by Immigration and Customs Enforcement, Acting Field Office Director, Strafford County Department of Corrections, Superintendent, US Department of Homeland Security, Acting Secretary(Le, Cam) (Entered: 05/19/2020)

05/19/2020

NOTICE of Hearing. Special Hearing - Bail Hearing for Waldemar Kaminski - set for 5/20/2020 at 09:15 AM before Chief Judge Landya B. McCafferty.(de) (Entered: 05/19/2020)

05/19/2020

146 Assented to MOTION to seal certain exhibits re: Waldemar Kaminski filed by Immigration and Customs Enforcement, Acting Field Office Director, Strafford County Department of Corrections, Superintendent, US Department of Homeland Security, Acting Secretary.(de) (Entered: 05/19/2020)

05/19/2020 147 Exhibit Petitioner Waldemar Kaminski's List of Bail Exhibits by Robson Xavier Gomes.(Abramson, Ronald) (Entered: 05/19/2020)

05/19/2020

ENDORSED ORDER granting 146 Motion for to seal hearing exhibits. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 06/15/2020)

05/20/2020

148 ORDER Re: Public Access Findings for Waldemar Kaminski (Bail Hearing). So Ordered by Chief Judge Landya B. McCafferty.(gla) (Entered: 05/20/2020)

05/20/2020

149 ENDORSED ORDER. Text of Order: The court has not yet mastered the creation of the perfect fillable pdf. This version of the fillable pdf template release order fixes the problem with paras 5 & 6. Please use this template going forward. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/20/2020)

05/20/2020

150 ORDER Setting Conditions of Release Relative to Release of Individual Class Member Adekunle Adeyanju. So Ordered by Chief Judge Landya B. McCafferty. (Attachments: # 1 Signature Page w/Mr. Adeyanju's signature)(de) (Entered: 05/20/2020)

05/20/2020

151 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (5.13.20 - 5.20.20)(Ollila, Terry) (Entered: 05/20/2020)

05/20/2020

152 Exhibit List Involving Souvanna Phachansiri by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 05/20/2020)

05/20/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SEALED TELEPHONE CONFERENCE for Waldemar Kaminski held on 5/20/2020. (Court Reporter: Susan Bateman) (Pltfs Atty: Ronald Abramson, SangYeob Kim, Gilles Bissonnette, Scott O'Connell) (Defts Atty: Cam Le, Frances Cohen)(Total Hearing Time: 5 minutes) (de) (Entered: 05/20/2020)

05/20/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/20/2020 via video conference - Bail Hearing for Waldemar Kaminski. (Sealed telephone portion of bail hearing 9:35 am-10:10 am). The ID was stricken on Respondents' exhibits 1, 4, 5 and 6. Respondents' 2 and 3 remained marked for ID and were not admitted. Court found no evidence of flight or danger. Release order/release conditions reviewed with Mr. Kaminski. (Court Reporter: Susan Bateman) (Pltfs Atty: Ronald Abramson) (Defts Atty: Cam Le)(Total Hearing Time: 1 hour, 28 minutes) (de) (Entered: 05/20/2020)

05/20/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. STATUS CONFERENCE with counsel held on 5/20/2020 video conference. (Court Reporter: Susan Bateman) (Pltfs Atty: Gilles

Bissonnette) (Defts Atty: Frances Cohen)(Total Hearing Time: 34 minutes) (de) (Entered: 05/20/2020)

05/20/2020

153 ORDER Setting Conditions of Release Relative to Release of Individual Class Member Waldemar Kaminski. So Ordered by Chief Judge Landya B. McCafferty.(de) (Additional attachment(s) added on 5/20/2020: # 1 UNREDACTED VERSION OF ORDER/CONDITIONS) (de). (Entered: 05/20/2020)

05/20/2020

ENDORSED ORDER Re: EXHIBITS. Text of Order: The parties have submitted exhibits electronically to the court for review in connection with individual bail hearings held in this case. At the conclusion of each bail hearing, the ID will be stricken on all exhibits submitted by operation of this order unless a timely objection is made during the hearing. For exhibits submitted in individual bail hearings held before the date of this order, any objection to striking the ID shall be filed on the public docket by May 29, 2020. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 05/20/2020)

05/20/2020 154 ORDER re Medical Evidence. So Ordered by Chief Judge Landya B. McCafferty. (gla) (Entered: 05/20/2020)

05/21/2020

155 NOTICE of Transfer for Removal by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 05/21/2020)

05/21/2020

NOTICE of Hearing. Special Hearing set for 5/22/2020 at 12:15 PM before Chief Judge Landya B. McCafferty. Bail Hearings via video conference for Souvanna Phachansiri.(de) Modified on 6/11/2020 to remove: Juan Guerrero Montero (removed from hearing list @ counsel's request) (de). (Entered: 05/21/2020)

05/21/2020

156 ORDER granting in part and denying in part 122 Motion for Relief as to 8 to 10 Detainees to be Transferred out of Strafford County Department of Corrections; denying 132 Motion for Preliminary Injunction. Petitioner's request for discovery 133 is moot. So Ordered by Chief Judge Landya B. McCafferty.(gla) (Entered: 05/21/2020)

05/21/2020

157 Exhibit Petitioner Plaintiffs List of Exhibit Involving Souvanna Phachansiri by Robson Xavier Gomes.(White, Emily) (Entered: 05/21/2020)

05/21/2020 158 NOTICE of Amended Notice of Transfer for Removal by Immigration and Customs Enforcement, Acting Field Office Director, US

Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 05/21/2020)

05/21/2020 159 Exhibit Revised Exhibit List re S Phachansiri by Robson Xavier Gomes.(White, Emily) (Entered: 05/21/2020)

05/22/2020

160 ORDER Re: Public Access Findings for Souvanna Phachansiri (Bail Hearing). So Ordered by Chief Judge Landya B. McCafferty. (gla) (Entered: 05/22/2020)

05/22/2020

161 Assented to MOTION to Extend Time to Object/Respond to 130 Objection to Motion, 128 MOTION to Dismiss for Failure to State a Claim , 129 Objection to Motion, to May 26, 2020 filed by Robson Xavier Gomes.(Bissonnette, Gilles) (Entered: 05/22/2020)

05/22/2020

162 NOTICE of Transfer for Removal Purposes by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 05/22/2020)

05/22/2020

ENDORSED ORDER granting 161 Assented to Motion to Extend Time to Object/Respond re 128 Motion to Dismiss for Failure to State a Claim and Objections. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.Follow up on Objection and Reply on 5/26/2020. (de) (Entered: 05/22/2020)

05/22/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SEALED TELEPHONE CONFERENCE re: Souvanna Phachansiri held on 5/22/2020. (Court Reporter: Brenda Hancock) (Pltfs Atty: Emily White, SangYeob Kim, Ronald Abramson, John Newman) (Defts Atty: Terry Ollila)(Total Hearing Time: 6 minutes) (de) (Entered: 05/22/2020)

05/22/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 5/22/2020 re: Bail Hearing via video conference for Souvanna Phachansiri. The government respondents have met their burden on the dangerousness prong. Mr. Phachansiri shall be detained. (Court Reporter: Brenda Hancock) (Pltfs Atty: Emily White) (Defts Atty: Terry Ollila)(Total Hearing Time: 42 minutes) (de) (Entered: 05/22/2020)

05/26/2020

163 TRANSCRIPT of Proceedings for MOTION HEARING BEFORE THE HONORABLE LANDYA B. McCAFFERTY VIA VIDEOCONFERENCE held on May 18, 2020. Court Reporter: Liza W. Dubois, Telephone # 603 225-1442. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys

of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 6/16/2020. Redacted Transcript Follow Up 6/26/2020. Release of Transcript Restriction set for 8/21/2020.(js) (Entered: 05/26/2020)

05/26/2020

164 ORDER RE: SOUVANNA PHACHANSIRI. Accordingly, it is ORDERED that the petitioner remain detained pending a ruling on the habeas petition. So Ordered by Chief Judge Landya B. McCafferty.(js) (Entered: 05/26/2020)

05/26/2020

165 NOTICE of Transfer for Removal Purposes re: Tharushan Nirmalachandran by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 05/26/2020)

05/26/2020

166 Assented to MOTION to Exceed page limit for Petitioners' consolidated brief (i) objecting to Respondents motion to dismiss [DN 128], (ii) replying to Respondents objection to motion for class certification [DN 129], and (iii) replying to Respondents objection to motion for preliminary injunction [DN 130] filed by Robson Xavier Gomes.(Bissonnette, Gilles) (Entered: 05/26/2020)

05/26/2020

167 OBJECTION to 128 MOTION to Dismiss for Failure to State a Claim filed by Robson Xavier Gomes. Follow up on Reply on 6/2/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Bissonnette, Gilles) (Entered: 05/26/2020)

05/26/2020

168 REPLY to Objection to Motion re 14 MOTION to Certify Class and Appointment of Class Counsel filed by Robson Xavier Gomes. Surreply due by 6/1/2020. (Bissonnette, Gilles) (Entered: 05/26/2020)

05/26/2020

169 REPLY to Objection to Motion re 7 MOTION for Preliminary Injunction and Motion for Expedited Discovery filed by Robson Xavier Gomes. Surreply due by 6/1/2020. (Bissonnette, Gilles) (Entered: 05/26/2020)

05/27/2020

ENDORSED ORDER granting 166 Motion to Exceed page limit for Petitioners' consolidated brief (i) objecting to Respondents motion to dismiss [DN 128], (ii) replying to Respondents objection to motion for class certification [DN 129], and (iii) replying to Respondents objection to motion for preliminary injunction [DN 130]. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty. (gla) (Entered: 05/27/2020)

05/27/2020

170 NOTICE of Transfer for Purposes of Removal by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 05/27/2020)

05/27/2020

171 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (5.20.20 - 5.27.20)(Ollila, Terry) (Entered: 05/27/2020)

05/28/2020

172 Final Witness List from Respondents for May 29, 2020 Evidentiary Hearing by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. (Cohen, Frances) (Entered: 05/28/2020)

05/28/2020 173 Final Witness List of Petitioners for May 29, 2020 Hearing by Robson Xavier Gomes. (Bissonnette, Gilles) (Entered: 05/28/2020)

05/28/2020

174 Federal Respondents' Exhibit List for May 29, 2020 Evidentiary Hearing by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary(Cohen, Frances) (Entered: 05/28/2020)

05/28/2020 175 Exhibit List of Petitioners for May 29, 2020 Hearing by Robson Xavier Gomes.(Bissonnette, Gilles) (Entered: 05/28/2020)

05/29/2020

176 ORDER Re: Public Access Findings for May 29, 2020 Hearing. So Ordered by Chief Judge Landya B. McCafferty.(gla) (Entered: 05/29/2020)

05/29/2020 177 Exhibit List (Amended) of Petitioners for May 29, 2020 Hearing by Robson Xavier Gomes.(Bissonnette, Gilles) (Entered: 05/29/2020)

05/29/2020

178 Federal Respondents' Amended Exhibit List for May 29, 2020 Evidentiary Hearing by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary(Cohen, Frances) (Entered: 05/29/2020)

05/29/2020

179 NOTICE of Attorney Appearance by Behzad Mirhashem (FPD) on behalf of Robson Xavier Gomes Attorney Behzad Mirhashem (FPD) added to party Robson Xavier Gomes(pty:pet).(Mirhashem (FPD), Behzad) (Entered: 05/29/2020)

05/29/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. EVIDENTIARY HEARING held on 5/29/2020 Witnessess Appearing: Ruben Hernandez, Allen Greenbaum. EXHIBITS ADMITTED INTO EVIDENCE: RESP. A, B, C, M, N, O, JJ and KK; PET. 8, 9 and 16. HEARING CONTINUED to 6/1/2020 at 9:00 a.m. (Court Reporter: Liza Dubois) (Pltfs Atty: Gilles Bissonnette, Nathan Warecki, SangYeob Kim) (Defts Atty: Frances Cohen, Terry Ollila)(Total Hearing Time: 4 hours, 20 minutes) (de) (Entered: 05/30/2020)

05/31/2020

NOTICE of Hearing re: 123 Order. Continuation Evidentiary Hearing via video conference set for 6/1/2020 at 09:00 AM before Chief Judge Landya B. McCafferty.(de) (Entered: 05/31/2020)

06/01/2020

NOTICE of Hearing. Special Hearing - Bail Hearing for Emmanual Evariste - set for 6/2/2020 at 09:15 AM via video conference before Chief Judge Landya B. McCafferty.(de) (Entered: 06/01/2020)

06/01/2020

181 Exhibit List Involving Emmanuel Evariste to Notice of Hearing by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 06/01/2020)

06/01/2020

182 Exhibit List (Second Amended) of Petitioners for May 29/June 1, 2020 Hearing by Robson Xavier Gomes.(Bissonnette, Gilles) (Entered: 06/01/2020)

06/01/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. EVIDENTIARY HEARING held on 6/1/2020 Witnessess Appearing: Superintendent Christopher Brackett; Tracy Warren. EXHIBITS ADMITTED INTO EVIDENCE: RESP. P, FF, II, D, V, S, U, and GG; PET. 1. Court granted oral motion to seal any redactions of personal identifying information in exhibits. (Court Reporter: Brenda Hancock (AM), Susan Bateman (PM)) (Pltfs Atty: Nathan Warecki) (Defts Atty: Frances Cohen, Robert Rabuck)(Total Hearing Time: 4 hours, 20 minutes) (de) (Entered: 06/02/2020)

06/01/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. Sealed TELEPHONE CONFERENCE re: RH held on 6/1/2020. Interpreter: Patricia Bluestein (Court Reporter: Susan Bateman) (Pltfs Atty: Gilles Bissonnette, SangYeob Kim) (Defts Atty:

Terry Ollila)(Total Hearing Time: 32 minutes) (de) Modified on 6/2/2020 to add: interpreter information (de). (Entered: 06/02/2020)

06/02/2020

183 ORDER Re: Public Access Findings for Emmanuel Evariste (Hearing). So Ordered by Chief Judge Landya B. McCafferty. (gla) (Entered: 06/02/2020)

06/02/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. Sealed TELEPHONE CONFERENCE re: Emmanuel Evariste held on 6/2/2020. (Court Reporter: Susan Bateman) (Pltfs Atty: SangYeob Kim, Behzad Mirhashem, Gilles Bissonnette) (Defts Atty: Terry Ollila)(Total Hearing Time: 35 minutes) (de) (Entered: 06/02/2020)

06/02/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING held on 6/2/2020 via video conference re: Bail Hearing for Emmanuel Evariste. The government has not met its burden. Conditions of release reviewed with Mr. Evariste. (Court Reporter: Susan Bateman) (Pltfs Atty: Behzad Mirhashem) (Defts Atty: Terry Ollila)(Total Hearing Time: 32 minutes) (de) (Entered: 06/02/2020)

06/02/2020

184 ORDER Setting Conditions of Release Relative to Release of Individual Class Member Emmanuel Evariste. So Ordered by Chief Judge Landya B. McCafferty.(de) (Additional attachment(s) added on 6/2/2020: # 1 UNREDACTED VERSION OF ORDER/CONDITIONS) (de). (Entered: 06/02/2020)

06/03/2020

185 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (May 27 - June 3, 2020)(Ollila, Terry) (Entered: 06/03/2020)

06/04/2020

186 NOTICE of Transfer for Removal Purposes by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 06/04/2020)

06/04/2020

187 TRANSCRIPT of Proceedings for Evidentiary Hearing (Afternoon Session) held on 6/1/2020. Court Reporter: Susan Bateman, Telephone # 603-225-1453. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 6/25/2020. Redacted Transcript Follow Up 7/6/2020. Release of Transcript Restriction set for 8/31/2020.(de) (Entered: 06/05/2020)

06/05/2020

207 Amended ORDER of Release Relative to Individual Class Member Emmanuel Evariste. So Ordered by Chief Judge Landya B. McCafferty.(de) (Additional attachment(s) added on 6/19/2020: # 1 UNREDACTED VERSION OF ORDER/CONDITIONS) (de). (Entered: 06/19/2020)

06/08/2020

188 NOTICE of SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION (DN 14) by Robson Xavier Gomes. (Attachments: # 1 Exhibit Quadrelli Class Action Decision)(Bissonnette, Gilles) (Entered: 06/08/2020)

06/08/2020

193 TRANSCRIPT of Proceedings for Evidentiary Hearing via Video Conference held on 5/29/2020. Court Reporter: Liza Dubois, Telephone # 603 225-1442. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 6/29/2020. Redacted Transcript Follow Up 7/9/2020. Release of Transcript Restriction set for 9/3/2020.(de) (Entered: 06/11/2020)

06/09/2020

190 Assented to MOTION to Exceed page limitations filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 06/09/2020)

06/09/2020

191 REPLY to Objection to Motion re 128 MOTION to Dismiss for Failure to State a Claim filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. Surreply due by 6/15/2020. (Cohen, Frances) (Entered: 06/09/2020)

06/10/2020

ENDORSED ORDER granting 190 Motion to Exceed Page Limitation. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.(gla) (Entered: 06/10/2020)

06/10/2020

192 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (6.3.20 - 6.10.20)(Ollila, Terry) (Entered: 06/10/2020)

06/10/2020

194 TRANSCRIPT of Proceedings for Evidentiary Hearing via Video Conference (Morning Session) held on 6/1/2020. Court Reporter: Brenda Hancock, Telephone # 603 225-1454. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 7/1/2020. Redacted Transcript Follow Up 7/13/2020. Release of Transcript Restriction set for 9/8/2020.(de) (Entered: 06/11/2020)

06/10/2020

211 SEALED TRANSCRIPT of Proceedings for SEALED Telephone Conference (re: Emmanuel Evariste) held on 6/2/2020. Court Reporter: Susan Bateman, Telephone # 603 225-1453.(de) (Entered: 06/29/2020)

06/10/2020

212 TRANSCRIPT of Proceedings for Bail Hearing re: Emmanuel Evariste held on 6/2/2020. Court Reporter: Susan Bateman, Telephone # 603 225-1453. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this

90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 7/1/2020. Redacted Transcript Follow Up 7/13/2020. Release of Transcript Restriction set for 9/8/2020.(de) (Entered: 06/29/2020)

06/11/2020

195 MODIFIED ORDER Setting Conditions of Release Relative to Class Member Zeike Reyes Pujols. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 06/11/2020)

06/11/2020

196 NOTICE of Intent to Remove Kevin Daniel from Strafford DOC by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 06/11/2020)

06/12/2020

NOTICE of Hearing. Special Hearing/ Bail Hearing for Emerson Garcia-Alvarez set for 6/15/2020 at 12:15 PM via video conference before Chief Judge Landya B. McCafferty.(de) (Entered: 06/12/2020)

06/12/2020

197 NOTICE of Transfer for Purposes of Removal (Amended) re: Kevin Daniel Shirley by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 06/12/2020)

06/12/2020

198 NOTICE of Transfer for Purposes of Removal - Week of June 15, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 06/12/2020)

06/14/2020 199 Exhibit List [re Emerson Garcia Alvarez] by Robson Xavier Gomes.(Abramson, Ronald) (Entered: 06/14/2020)

06/15/2020

200 Exhibit List Involving Emerson Garcia Alvarez to Notice of Hearing by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 06/15/2020)

06/15/2020

201 ORDER Re: Public Access Findings for Emerson Garcia Alvarez (Bail Hearing). So Ordered by Chief Judge Landya B. McCafferty.(gla) (Entered: 06/15/2020)

06/15/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SEALED TELEPHONE CONFERENCE re: Emerson Garcia Alvarez held on 6/15/2020. (Court Reporter: Liza Dubois) (Pltfs Atty: Ronald Abramson) (Defts Atty: Terry Ollila)(Total Hearing Time: 28 minutes) (de) (Entered: 06/15/2020)

06/15/2020

Minute Entry for proceedings held before Chief Judge Landya B. McCafferty. SPECIAL HEARING - Bail Hearing for Emerson Garcia Alvarez held on 6/15/2020 via video conference. The court found that the government did not meet its burden; conditions of release reviewed with Mr. Garcia Alvarez. (Court Reporter: Liza Dubois) (Pltfs Atty: Ronald Abramson) (Defts Atty: Terry Ollila)(Total Hearing Time: 33 minutes) (de) (Entered: 06/15/2020)

06/15/2020

202 ORDER Setting Conditions of Release Relative to Release of Individual Class Member Emerson Garcia Alvarez. So Ordered by Chief Judge Landya B. McCafferty.(de) (Additional attachment(s) added on 6/15/2020: # 1 UNREDACTED VERSION OF ORDER/CONDITIONS) (de). (Entered: 06/15/2020)

06/15/2020

203 SURREPLY to Reply to 128 MOTION to Dismiss for Failure to State a Claim filed by Robson Xavier Gomes. (Warecki, Nathan) (Entered: 06/15/2020)

06/16/2020

ENDORSED ORDER Re: hearing exhibits in individual bail hearings within this case. Text of Order: The Parties have submitted hearing exhibits electronically to the court for review in connection with individual bail hearings held in this case. Parties have also sought to seal certain of these exhibits in individual cases. Any and all exhibits containing medical records of individual detainees for their individual bail hearings are SEALED. However, if there are additional hearing exhibits, that are not medical records, that either party believes should be sealed, they shall submit or resubmit a motion to seal to the court explaining why the particular non-medical hearing exhibits should be sealed. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 06/16/2020)

06/16/2020

204 ORDER denying 128 Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge Landya B. McCafferty.(gla) (Entered: 06/16/2020)

06/17/2020

205 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (6.10.20 - 6.17.20)(Ollila, Terry) (Entered: 06/17/2020)

06/18/2020

206 NOTICE of SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR MOTION FOR EXPEDITED BAIL HEARINGS (DN 9) AND MOTION FOR PRELIMINARY INJUNCTION (DN 7) by Robson Xavier Gomes. (Attachments: # 1 Exhibit A -- Savino June 18, 2020 Order)(Bissonnette, Gilles) (Entered: 06/18/2020)

06/22/2020

NOTICE of Hearing. Special Hearing/Bail Hearing for Joao Paulo Rodrigues Dos Santos set for 6/23/2020 at 10:15 AM via video conference before Chief Judge Landya B. McCafferty. Interpreter Claudia Azoff has been scheduled.(de) (Entered: 06/22/2020)

06/22/2020

Deadline terminated:Special Hearing 06/23/2020 - Bail Hearing for Joao Paulo Rodrigues Dos Santos CANCELLED per agreement of/by the parties. (de) (Entered: 06/22/2020)

06/24/2020

208 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (6.17.20-6.24.20)(Ollila, Terry) (Entered: 06/24/2020)

06/25/2020

209 NOTICE of Transfer for Purposes of Removal During Week of June 29 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 06/25/2020)

06/25/2020

ENDORSED ORDER re: 209 Notice, 208 Status Report. Text of Order: Reviewed. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 06/26/2020)

06/26/2020

210 Assented to MOTION to Continue July 1, 2020 Status Conferences filed by Robson Xavier Gomes.Follow up on Objection on 7/10/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(Warecki, Nathan) (Entered: 06/26/2020)

06/26/2020

ENDORSED ORDER granting 210 Assented to Motion to Continue July 1, 2020 status conferences. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 06/29/2020)

06/29/2020

NOTICE of Hearing. Status Conference(s) re: those individuals released on conditions set for 8/20/2020 at 10:00 AM before Chief Judge Landya B. McCafferty.(de) (Entered: 06/29/2020)

06/29/2020 213 NOTICE of Transfer for Health Care by Immigration and Customs Enforcement, Acting Field Office Director, US Department of

Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 06/29/2020)

06/30/2020

214 NOTICE of Proposed Transfer for Removal Purposes of Pablo BaeBernabe by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 06/30/2020)

06/30/2020

215 ANSWER to 5 Amended Complaint,, filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 06/30/2020)

07/01/2020

216 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (6.24.20 - 7.1.20)(Ollila, Terry) (Entered: 07/01/2020)

07/01/2020

217 NOTICE of Transfer for Removal Purposes During Week of July 6, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 07/01/2020)

07/01/2020

218 ORDER denying 9 Motion for Expedited Bail Hearings for Plaintiffs. Petitioners' motion for expedited bail hearings is denied with regard to lower-risk detainees. Status report due on or before July 15, 2020. So Ordered by Chief Judge Landya B. McCafferty. (gla) (Entered: 07/01/2020)

07/08/2020

219 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (7.1.20 - 7.8.20)(Ollila, Terry) (Entered: 07/08/2020)

07/09/2020

220 Assented to MOTION to Extend Time to July 29, 2020 to Respond to the July 1,2020 Court Order (DN 218) filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 07/09/2020)

07/09/2020

ENDORSED ORDER granting 220 Assented to Motion to Extend Time to July 29, 2020 to Respond to the July 1,2020 Court Order (DN 218). Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 07/09/2020)

07/09/2020 221 NOTICE of Transfer for Removal Purposes During The Week of July 13, 2020 by Immigration and Customs Enforcement, Acting Field

Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 07/09/2020)

07/15/2020

222 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (7.8.20 - 7.14.20)(Ollila, Terry) (Entered: 07/15/2020)

07/21/2020

223 Assented to MOTION to Extend Time to August 7, 2020 to Respond to the July 1, 2020 Court Order (DN 218) filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 07/21/2020)

07/22/2020

ENDORSED ORDER granting 223 Motion to Extend Time to August 7, 2020 to Respond to the July 1, 2020 Court Order. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.(gla) (Entered: 07/22/2020)

07/22/2020

224 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (7.14.20 - 7.22.20)(Ollila, Terry) (Entered: 07/22/2020)

07/23/2020

225 NOTICE of Transfer for Removal Purposes During the Week of July 27, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 07/23/2020)

07/29/2020

226 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (7.22.20 - 7.29.20)(Ollila, Terry) (Entered: 07/29/2020)

07/30/2020

227 NOTICE of Transfer for Removal Purposes During The Week of August 3, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 07/30/2020)

07/30/2020

228 Assented to MOTION to Amend 101 Order, to Change the Designated Place for Zeike Alexander Reyes Pujols filed by Robson Xavier Gomes. (Attachments: # 1 Proposed Order Proposed Order)(Kim, SangYeob) (Entered: 07/30/2020)

08/02/2020

237 TRANSCRIPT of Proceedings for Hearing re: Adekunle Adeyanju held on 5/7/2020. Court Reporter: Susan Bateman, Telephone # 603 2251453. Transcript is available for public inspection, but may not be

copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 8/24/2020. Redacted Transcript Follow Up 9/2/2020. Release of Transcript Restriction set for 10/28/2020.(de) (Entered: 08/12/2020)

08/02/2020

238 TRANSCRIPT of Proceedings for Ernest Nsai Bail Hearing held on 5/7/2020. Court Reporter: Susan Bateman, Telephone # 603 225-1453. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 8/24/2020. Redacted Transcript Follow Up 9/2/2020. Release of Transcript Restriction set for 10/28/2020.(de) (Entered: 08/12/2020)

08/02/2020

239 TRANSCRIPT of Proceedings for Robson Xavier Gomes Bail Hearing held on 5/7/2020. Court Reporter: Susan Bateman, Telephone # 603 225-1453. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 8/24/2020. Redacted Transcript Follow Up 9/2/2020. Release of Transcript Restriction set for 10/28/2020.(de) (Entered: 08/12/2020)

08/03/2020

240 TRANSCRIPT of Proceedings for Rommel Chavez Bail Hearing held on 5/7/2020. Court Reporter: Susan Bateman, Telephone # 603 2251453. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 8/24/2020. Redacted Transcript Follow Up 9/3/2020. Release of Transcript Restriction set for 10/29/2020.(de) (Entered: 08/12/2020)

08/03/2020

241 SEALED TRANSCRIPT of Proceedings for SEALED Telephone Conference(s) Re: Robson Xavier Gomes, Ernest Nsai and Rommel Chavez held on 5/7/2020. Court Reporter: Susan Bateman, Telephone # 603 225-1453.(de) (Entered: 08/12/2020)

08/03/2020

246 TRANSCRIPT of Proceedings for Adekunle Adeyanju Bail Hearing held on 5/5/2020. Court Reporter: Liza Dubois, Telephone # 603 2251442. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary

to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 8/24/2020. Redacted Transcript Follow Up 9/3/2020. Release of Transcript Restriction set for 10/29/2020.(de) (Entered: 08/17/2020)

08/03/2020

247 TRANSCRIPT of Proceedings for Ang Myo Thet Bail Hearing held on 5/5/2020. Court Reporter: Liza Dubois, Telephone # 603 225-1442. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 8/24/2020. Redacted Transcript Follow Up 9/3/2020. Release of Transcript Restriction set for 10/29/2020.(de) (Entered: 08/17/2020)

08/03/2020

248 SEALED TRANSCRIPT of Proceedings for Sealed Telephone Conference re: Adekunle Adeyanju held on 5/5/2020. Court Reporter: Liza Dubois, Telephone # 603 225-1442.(de) (Entered: 08/17/2020)

08/03/2020

249 SEALED TRANSCRIPT of Proceedings for Ang Myo Thet Sealed Telephone Conference held on 5/5/2020. Court Reporter: Liza Dubois, Telephone # 603 225-1442.(de) (Entered: 08/17/2020)

08/05/2020

ENDORSED ORDER granting 228 Motion to Amend 101 Order, to Change the Designated Place for Zeike Alexander Reyes Pujols. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty. (gla) (Entered: 08/05/2020)

08/05/2020

229 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (7.29.20 - 8.4.20)(Ollila, Terry) (Entered: 08/05/2020)

08/05/2020 230 Assented to MOTION to Amend 184 Order, Setting Conditions of Release for Individual Class Member Emmanuel Evariste filed by

Robson Xavier Gomes.(Mirhashem (FPD), Behzad) (Entered: 08/05/2020)

08/05/2020

231 NOTICE of Transfer for Removal Purposes During the Week of August 10, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 08/05/2020)

08/07/2020

232 Addendum/ to 31 Affidavit, 40 Miscellaneous Filing by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. (Ollila, Terry) (Entered: 08/07/2020)

08/07/2020

233 BRIEF/MEMORANDUM (Supplemental) Concerning Status of Outstanding Motions by Robson Xavier Gomes(Bissonnette, Gilles) (Entered: 08/07/2020)

08/07/2020

234 MOTION for Reconsideration re 204 Order on Motion to Dismiss for Failure to State a Claim filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.Follow up on Objection on 8/21/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law)(Cohen, Frances) (Entered: 08/07/2020)

08/07/2020

235 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : in Response to Court Order dated July 1, 2020 (DN 218)(Cohen, Frances) (Entered: 08/07/2020)

08/07/2020

236 MEMORANDUM re 129 Objection to Motion, (Supplemental Memorandum Regarding Class Certification) filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. (Cohen, Frances) (Entered: 08/07/2020)

08/07/2020

274 TRANSCRIPT of Proceedings for Bail Hearing via video for Elizier Goncalves De Matos held on 5/4/2020. Court Reporter: Brenda Hancock, Telephone # 603 225-1454. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like

to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 8/28/2020. Redacted Transcript Follow Up 9/8/2020. Release of Transcript Restriction set for 11/2/2020.(de) (Entered: 09/04/2020)

08/07/2020

275 SEALED TRANSCRIPT of Proceedings for SEALED Telephone Conference re: Elizier Goncalves De Matos held on 5/4/2020. Court Reporter: Brenda Hancock, Telephone # 603 225-1454.(de) (Entered: 09/04/2020)

08/12/2020

242 NOTICE of Transfer for Removal Purposes During the Week of August 17, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 08/12/2020)

08/12/2020

243 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (8.5.20 - 8.12.20)(Ollila, Terry) (Entered: 08/12/2020)

08/13/2020

ENDORSED ORDER granting 230 Motion to Amend 184

Order Setting Conditions of Release. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty. (gla) (Entered: 08/13/2020)

08/14/2020

244 MOTION for Discovery filed by Robson Xavier Gomes.Follow up on Objection on 8/28/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law, # 2 Exhibit A -Proposed Discovery Plan, # 3 Exhibit B -- Petitioners May 2020 Subpoena, # 4 Exhibit C -- Respondents' Mat 2020 Response to Subpoena)(Bissonnette, Gilles) (Entered: 08/14/2020)

08/14/2020 245 Assented to MOTION to Extend Time to Object/Respond to 244 MOTION for Discovery , 234 MOTION for Reconsideration

re 204 Order on Motion to Dismiss for Failure to State a Claim to September 4, 2020 and September 18, 2020 filed by Robson Xavier Gomes.(Bissonnette, Gilles) (Entered: 08/14/2020)

08/17/2020

ENDORSED ORDER granting 245 Assented to Motion to Extend Time to Object/Respond re 234 Motion for Reconsideration, 244 Motion for Discovery. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty.Follow up on Objection on 9/4/2020. Follow up on Objection on 9/18/2020.(de) (Entered: 08/17/2020)

08/17/2020

ENDORSED ORDER denying as moot 7 Motion for Preliminary Injunction. Text of Order: In April, petitioners requested a preliminary injunction halting the transfer of civil immigration detainees from other ICE detention facilities to SCHOC (doc. no. 7). Respondents have voluntarily halted these transfers. Petitioners now ask that the Court allow them to withdraw as moot their motion for a preliminary injunction (doc. no. 233). The court grants petitioners request. Document number 7 is therefore denied as moot. So Ordered by Chief Judge Landya B. McCafferty.(de) (Entered: 08/17/2020)

08/19/2020

RESCHEDULING NOTICE of Hearing. By agreement/request of the parties, the status conference is continued and rescheduled. Status Conference reset for 10/19/2020 at 02:00 PM before Chief Judge Landya B. McCafferty.(de) (Entered: 08/19/2020)

08/19/2020

250 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (8.12.20 - 8.18.20)(Ollila, Terry) (Entered: 08/19/2020)

08/19/2020

251 NOTICE of Removal During Week of August 24, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 08/19/2020)

08/20/2020

252 NOTICE of Removal During Week of August 24, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Ollila, Terry) (Entered: 08/20/2020)

08/24/2020

253 NOTICE of Intent to Remove Carlos Almeida from DNH by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 08/24/2020)

08/24/2020

254 TRANSCRIPT of Proceedings for MAX GBETIBOUO BAIL HEARING PART 1 held on May 11, 2020. Court Reporter: Liza W. Dubois, Telephone # 603 225-1442. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of

record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 9/14/2020. Redacted Transcript Follow Up 9/24/2020. Release of Transcript Restriction set for 11/19/2020.(js) (Entered: 08/25/2020)

08/24/2020

256 TRANSCRIPT of Proceedings for ZEIKE ALEXANDER REYES PUJOLS BAIL HEARING held on May 11, 2020. Court Reporter: Liza W. Dubois, Telephone # 603 225-1442. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 9/14/2020. Redacted Transcript Follow Up 9/24/2020. Release of Transcript Restriction set for 11/19/2020.(js) (Entered: 08/25/2020)

08/24/2020

258 TRANSCRIPT of Proceedings for EMERSON GARCIA ALVAREZ BAIL HEARING held on June 15, 2020. Court Reporter: Liza W. Dubois, Telephone # 603 225-1442. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 9/14/2020. Redacted Transcript Follow Up 9/24/2020. Release of Transcript Restriction set for 11/19/2020.(js) (Entered: 08/25/2020)

08/24/2020

260 TRANSCRIPT of Proceedings for FRANCIS VILLAR BAIL HEARING held on May 12, 2020. Court Reporter: Susan M. Bateman, Telephone # 603 225-1453. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 9/14/2020. Redacted Transcript Follow Up 9/24/2020. Release of Transcript Restriction set for 11/19/2020.(js) (Entered: 08/25/2020)

08/24/2020

262 TRANSCRIPT of Proceedings for MAX LAGROAND GBETIBOUO BAIL HEARING held on May 12, 2020. Court Reporter: Susan M. Bateman, Telephone # 603 225-1453. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 9/14/2020. Redacted Transcript Follow Up 9/24/2020. Release of Transcript Restriction set for 11/19/2020.(js) (Entered: 08/25/2020)

08/24/2020

263 TRANSCRIPT of Proceedings for WALDEMAR KAMINSKI BAIL HEARING held on May 20, 2020. Court Reporter: Susan M. Bateman, Telephone # 603 225-1453. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 9/14/2020. Redacted Transcript Follow Up 9/24/2020. Release of Transcript Restriction set for 11/19/2020.(js) (Entered: 08/25/2020)

08/26/2020

265 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (8.19.20 - 8.26.20)(Ollila, Terry) (Entered: 08/26/2020)

08/27/2020

266 NOTICE of Transfer for Purposes of Removal Week of August 31 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 08/27/2020)

08/28/2020

267 NOTICE of Removal of Gabino Del Angel Moran by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 08/28/2020)

08/28/2020

268 Addendum/ to 244 MOTION for Discovery by Robson Xavier Gomes. (Attachments: # 1 Exhibit 1 -- Redline Reflecting Changes on Exhibit A Relative to July 29 Proposal)(Bissonnette, Gilles) (Entered: 08/28/2020)

09/02/2020 269 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting

Secretary : Weekly Status Report (8.26.20 - 9.2.20)(Ollila, Terry) (Entered: 09/02/2020)

09/02/2020

270 NOTICE of Transfer for Removal Purposes During the Week of September 7, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 09/02/2020)

09/02/2020

278 TRANSCRIPT of Proceedings for Bail Hearing for Marcus Giotto via video conference held on 5/13/2020. Court Reporter: Brenda Hancock, Telephone # 603 225-1454. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 9/23/2020. Redacted Transcript Follow Up 10/5/2020. Release of Transcript Restriction set for 11/30/2020.(de) (Entered: 09/15/2020)

09/02/2020

279 SEALED TRANSCRIPT of Proceedings for Sealed Telephone Conference for Marcus Giotto held on 5/13/2020. Court Reporter: Brenda Hancock, Telephone # 603 225-1454.(de) (Entered: 09/15/2020)

09/02/2020

289 TRANSCRIPT of Proceedings for Bail Hearing for Souvana Phachansiri held on 5/22/2020. Court Reporter: Brenda Hancock, Telephone # 603 225-1454. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary

to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 9/23/2020. Redacted Transcript Follow Up 10/5/2020. Release of Transcript Restriction set for 11/30/2020.(de) (Entered: 09/28/2020)

09/02/2020

290 SEALED TRANSCRIPT of Proceedings for SEALED Telephone Conference for Souvana Phachansiri held on May 22, 2020. Court Reporter: Brenda Hancock, Telephone # 603 225-1454.(de) (Entered: 09/28/2020)

09/02/2020

291 TRANSCRIPT of Proceedings for Bail Hearing for Julian Cruz-Lainez held on 5/8/2020. Court Reporter: Brenda Hancock, Telephone # 603 225-1454. Transcript is available for public inspection, but may not be copied or otherwise reproduced, at the Clerk's Office for a period of 90 days. Additionally, only attorneys of record and pro se parties with an ECF login and password who purchase a transcript from the court reporter will have access to the transcript through PACER during this 90-day period. If you would like to order a copy, please contact the court reporter at the above listed phone number.

NOTICE: Any party who requests an original transcript has 21 days from service of this notice to determine whether it is necessary to redact any personal identifiers and, if so, to electronically file a Redaction Request.

Redaction Request Follow Up 9/23/2020. Redacted Transcript Follow Up 10/5/2020. Release of Transcript Restriction set for 11/30/2020.(de) (Entered: 09/28/2020)

09/02/2020

292 SEALED TRANSCRIPT of Proceedings for SEALED Telephone Conference for Julian Cruz-Lainez held on 5/8/2020. Court Reporter: Brenda Hancock, Telephone # 603 225-1454.(de) (Entered: 09/28/2020)

09/03/2020

271 NOTICE of Transfer For Removal Purposes During the Week of September 7, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 09/03/2020)

09/03/2020 272 NOTICE of Attorney Withdrawal by Marx Calderon on behalf of Robson Xavier Gomes(Calderon, Marx) (Entered: 09/03/2020)

09/04/2020 273 OBJECTION to 234 MOTION for Reconsideration re 204 Order on Motion to Dismiss for Failure to State a Claim filed by Robson

Xavier Gomes. Follow up on Reply on 9/11/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Warecki, Nathan) (Entered: 09/04/2020)

09/09/2020

276 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (9.2.20-9.8.20)(Ollila, Terry) (Entered: 09/09/2020)

09/10/2020

277 NOTICE of Transfer for Removal Purposes During the Week of September 14, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 09/10/2020)

09/16/2020

280 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (9.9.20 - 9.16.20)(Ollila, Terry) (Entered: 09/16/2020)

09/17/2020

281 NOTICE of Transfer for Removal Purposes During the Week of September 21, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 09/17/2020)

09/18/2020

282 OBJECTION to 244 MOTION for Discovery filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. Follow up on Reply on 9/25/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Exhibit (Affidavit) A - Cohen Declaration, # 2 Attachment to Exhibit A1 - 5/17 Email, # 3 Attachment to Exhibit A2 - 5/20 Email, # 4 Exhibit B - Baez Order)(Cohen, Frances) (Entered: 09/18/2020)

09/18/2020 283 REPLY to Objection to Motion re 234 MOTION for Reconsideration

re 204 Order on Motion to Dismiss for Failure to State a Claim filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. Surreply due by 9/23/2020. (Ollila, Terry) (Entered: 09/18/2020)

09/23/2020

284 NOTICE of SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION (DN 14) by Robson Xavier Gomes. (Attachments: # 1 Exhibit A -- Coreas v. Bounds,

# 2 Exhibit B -- Hernandez Roman v. Wolf)(Bissonnette, Gilles) (Entered: 09/23/2020)

09/23/2020

285 Assented to MOTION to Extend Time to Respond to Respondents' Submissions filed by Robson Xavier Gomes.(Bissonnette, Gilles) (Entered: 09/23/2020)

09/23/2020

286 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (9.16.20 - 9.23.20)(Ollila, Terry) (Entered: 09/23/2020)

09/23/2020

ENDORSED ORDER granting 285 Motion to Extend Time to Respond to Respondents' Submissions. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty. Follow up on Reply on 10/9/2020. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). Surreply due by 10/9/2020. (gla) (Entered: 09/24/2020)

09/24/2020

287 NOTICE of Transfer For Removal Purposes During The Week of September 28, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 09/24/2020)

09/24/2020

288 NOTICE of Supplemental Authority by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary. (Attachments: # 1 Exhibit Order (Baez v Moniz))(Ollila, Terry) (Entered: 09/24/2020)

09/28/2020 293 ///ORDER denying 234 Motion for Reconsideration re: 204

Order on Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge Landya B. McCafferty.(gla) (Entered: 09/28/2020)

09/30/2020

294 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (9.23.20 - 9.30.20)(Ollila, Terry) (Entered: 09/30/2020)

10/01/2020

295 NOTICE of Transfer For Removal Purposes During The Week of October 5, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 10/01/2020)

10/07/2020 296 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting

Secretary : Weekly Status Report (9.30.20 - 10.7.20)(Ollila, Terry) (Entered: 10/07/2020)

10/07/2020

297 NOTICE of Transfer For Removal Purposes During The Week of October 12, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 10/07/2020)

10/09/2020

298 REPLY to Objection to Motion re 244 MOTION for Discovery filed by Robson Xavier Gomes. Surreply due by 10/14/2020. (Attachments: # 1 Exhibit D -- Proposed Document Requests)(Bissonnette, Gilles) (Entered: 10/09/2020)

10/14/2020

ENDORSED ORDER: Early on in this case, and as a consequence of the courts decision to release some detainees on bail, counsel persuaded the court to schedule a date for status conferences in every single release case. The court sees no reason for a hearing or conference unless an individual case requires it. Thus, unless counsel files a request for a conference or hearing in a particular case, a status conference or hearing will not be held. Accordingly, the recurring status conferences are unnecessary and will be removed from the calendar. Deadline terminated: Status Conference 10/19/2020. (de) (Entered: 10/14/2020)

10/14/2020

299 Assented to MOTION to Extend Time to Object/Respond to 244 MOTION for Discovery to November 4, 2020 by Filing a SurReply filed by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 10/14/2020)

10/14/2020

300 STATUS REPORT by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary : Weekly Status Report (10.7.20 - 10.14.20)(Ollila, Terry) (Entered: 10/14/2020)

10/14/2020

ENDORSED ORDER granting 299 Assented to Motion to Extend Time to Object/Respond re 244 Motion for Discovery. Text of Order: Granted. So Ordered by Chief Judge Landya B. McCafferty. Surreply due by 11/4/2020.(de) (Entered: 10/14/2020)

10/15/2020

301 NOTICE of Transfer for Removal Purposes During the Week of October 19, 2020 by Immigration and Customs Enforcement, Acting Field Office Director, US Department of Homeland Security, Acting Secretary.(Cohen, Frances) (Entered: 10/15/2020)

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 Case 1:20-cv-00453-LM Document 50 Filed 05/04/20 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robson Xavier Gomes, et al.
v.
Acting Secretary, U.S. Department of Homeland Security, et al.

Civil No. 20-cv-453-LM Opinion No. 2020 DNH 072

O R D E R Robson Xavier Gomes, Jose Nolberto Tacuri-Tacuri, and Darwin Aliesky Cuesta-Rojas bring this petition for habeas corpus pursuant to 28 U.S.C. § 2241 and a complaint for declaratory and injunctive relief on behalf of themselves and a putative class of civil immigration detainees housed at the Strafford County Department of Corrections (“SCDOC”). They claim that respondents, the Acting Secretary of the United States Department of Homeland Security, Acting Field Director of Immigration and Customs Enforcement, and the Superintendent of SCDOC, have violated the putative class members’ Fifth Amendment Due Process rights by creating or allowing policies and practices at SCDOC, or the lack thereof, that put class members’ health at substantial risk of harm. Pending before the court are petitioners’ amended complaint, motion for preliminary injunctive relief and expedited discovery, emergency motion for expedited bail

Case 1:20-cv-00453-LM Document 50 Filed 05/04/20 Page 2 of 11
hearings, and motion to certify the proposed class. At a hearing on May 1, 2020, the court orally granted petitioners’ motion for expedited bail hearings for a group of medically vulnerable putative class members. Those bail hearings are scheduled to begin today. At a telephone conference this morning, the court informed the parties that it intended to provisionally certify the proposed class for the purpose of conducting those bail hearings. Respondents objected to the notion of provisional class certification generally but did not develop specific argument in opposition to provisional certification in this case. The court will provisionally certify the proposed class for the limited purpose of holding expedited bail hearings for class members.
STANDARD OF REVIEW To obtain class certification, the petitioner must establish the four prerequisites of Federal Rule of Civil Procedure 23(a). See Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997); Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir. 2003). Rule 23(a) states four threshold certification requirements applicable to all class actions: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy. See Fed. R. Civ. P. 23(a); Amchem, 521 U.S. at 613. In addition
2

Case 1:20-cv-00453-LM Document 50 Filed 05/04/20 Page 3 of 11
to Rule 23(a)’s threshold requirements, a party seeking certification must also show that the action falls into one of the categories outlined in Rule 23(b). Amchem, 521 U.S. at 614. Petitioners seek to certify under Rule 23(b)(2). Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
At this juncture, the court will provisionally certify the class for the purpose of holding expedited bail hearings—a form of preliminary and emergency relief in the context of this case. See Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848, at *1, 3 (N.D. Cal. Apr. 29, 2020) (provisionally certifying class of civil immigration detainees to facilitate expedited bail hearings); Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *3 (D. Mass. Apr. 8, 2020) (same); cf. Fraihat v. U.S. Immigration & Customs Enf’t, No. EDCV191546JGBSHKX, 2020 WL 1932570, at *15 (C.D. Cal. Apr. 20, 2020) (provisionally certifying class for the purpose of granting preliminary injunctive relief). Provisional certification is also necessary because respondents have not yet filed a response to petitioners’ motion to certify the class.
3

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“Provisional” certification does not lower the bar with respect to the Rule 23(a) and (b) standards; the court must conduct a rigorous inquiry and satisfy itself that the putative class meets those requirements. See Tolmasoff v. Gen. Motors, LLC, No. 16-11747, 2016 WL 3548219, at *6 (E.D. Mich. June 30, 2016); R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 180 (D.D.C. 2015). The court’s “provisional” determination is made, however, with the understanding that it “may be altered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C); see also R.I.L-R, 80 F. Supp. 3d at 180.
DISCUSSION Petitioners propose certification of the following class: “all individuals who are now held in civil immigration detention” at SCDOC. Doc. no. 14-1 at 9. The proposed class representatives are the named petitioners: Gomes, Tacuri-Tacuri, and Cuesta-Rojas. Respondents agreed to release Tacuri-Tacuri and Cuesto-Rojas with conditions on or about April 22, 2020. Doc. no. 22. Gomes remains detained at SCDOC. The court will address the Rule 23(a) and Rule 23(b)(2) requirements below.
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I. Rule 23(a) Requirements A. Numerosity Rule 23(a)(1) requires that “the class is so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.” Clough v. Revenue Frontier, LLC, No. 17-CV-411-PB, 2019 WL 2527300, at *3 (D.N.H. June 19, 2019) (quoting Garcia-Rubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009)). Petitioners allege that there are over 60 civil immigration detainees housed at SCDOC. Indeed, Superintendent Brackett testified at the May 1 hearing that there are approximately 75 civil detainees. Even if this number fluctuates somewhat due to the ingress and egress of detainees, it satisfies the numerosity requirement.
B. Commonality Rule 23(a)(2) asks whether there are “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality requires proof that all class members “have suffered the same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal quotation marks omitted). This means that the “claim must depend upon a common contention.” Id. That
5

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“common contention” must be “capable of classwide resolution— which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. This “same injury” test “can be satisfied by an instance of the defendant’s injurious conduct, even when the resulting injurious effects—the damages—are diverse.” In re Deepwater Horizon, 739 F.3d 790, 810-11 (5th Cir. 2014); see also Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014).
Here, petitioners allege that respondents’ facility-wide failure or inability to facilitate social distancing at SCDOC violates their Fifth Amendment Due Process rights in two ways: respondents’ conduct is deliberately indifferent to a substantial risk of harm to their health; and the conditions of confinement at SCDOC amount to punishment. The court will focus here only on the deliberate indifference theory.
To prove a deliberate indifference claim, a petitioner must show: (1) the alleged deprivation of medical care is objectively “sufficiently serious”; and (2) the defendant must have a “sufficiently culpable state of mind” that shows “deliberate indifference to inmate health or safety.” Leite v. Bergeron, 911 F.3d 47, 52 (1st Cir. 2018) (internal quotation marks omitted). A defendant is deliberately indifferent if he
6

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subjectively “knows of and disregards an excessive risk to inmate health or safety.” Id. (internal quotation marks omitted). “To show such a state of mind, the plaintiff must provide evidence that the defendant had actual knowledge of impending harm, easily preventable, and yet failed to take the steps that would have easily prevented that harm.” Id. (internal quotation marks omitted).
Petitioners claim that respondents have subjected the putative class to the same injury: policies and practices (or the lack thereof) that put their health at substantial risk of harm by inhibiting their ability to practice social distancing during the COVID-19 pandemic. Petitioners’ deliberate indifference claim thus presents at least two common questions: whether each respondent had actual knowledge of the impending harm or risk posed to the putative class by COVID-19; and whether each respondent failed to take steps that would have easily prevented the harm to detainees. See Fraihat, 2020 WL 1932570, at *18 (finding commonality satisfied to provisionally certify civil detainee class based on common question of whether respondents’ systemwide actions or inactions constituted deliberate indifference); Wilson v. Williams, No. 4:20-CV-00794, 2020 WL 1940882, at *7 (N.D. Ohio Apr. 22, 2020) (identifying common question as whether respondents’ failure to create safe
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conditions violated inmates’ rights); Savino, 2020 WL 1703844, at *6 (identifying common question as whether the government disregarded the risk posed by COVID-19 to civil detainees by failing to take reasonable measures). Petitioners need only articulate a single common question to meet the commonality requirement. Dukes, 564 U.S. at 359. That requirement is met here.
C. Typicality Next, plaintiffs must show “typicality” or that their claims or defenses are “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). To be typical, the representative plaintiffs’ claims must “arise from the same event or practice or course of conduct that gives rise to the claims of other class members, and [be] based on the same legal theory.” Garcia-Rubiera, 570 F.3d at 460 (internal quotation marks, brackets, and ellipsis omitted). The representative plaintiffs’ claims and those of absent class members need not be identical; they need only “share the same essential characteristics.” Ouadani v. Dynamex Operations E., LLC, ___ F. Supp. 3d. ___, 2019 WL 4384061, at *8 (D. Mass. Sept. 13, 2019) (internal quotation marks omitted).
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The named petitioners’ claims here are typical of the class. They arise from the same course of conduct: respondents’ facility-wide actions or inactions that have allegedly failed to make living conditions at SCDOC safe during the COVID-19 pandemic. And their claims are all based on the legal theory that respondents have violated their Fifth Amendment Due Process rights, either by being deliberately indifferent to the substantial risk of harm created by the virus, or by subjecting them to punishment. Although the impact each class member may experience from respondents’ alleged failings may differ, respondents’ alleged systemwide failure to implement adequate health and safety measures applies equally across the class. The typicality requirement is met here.
D. Adequacy Rule 23(a)(4) requires that the “representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requirement has two prongs: (1) “that the interests of the representative party will not conflict with the interests of any of the class members”; and that chosen counsel “is qualified, experienced and able to vigorously conduct the proposed litigation.” Clough, 2019 WL 2527300, at *4 (internal quotation marks omitted).
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With respect to the first prong, the court has not identified any way in which the proposed class representatives’ interests conflict with those of the unnamed class members. Turning to the second prong of the adequacy inquiry, the court is convinced that proposed class counsel, Gilles Bissonette of the American Civil Liberties Union of New Hampshire and Scott O’Connell of Nixon Peabody, LLP, have sufficient experience and qualifications to serve as class counsel. See doc. nos. 14-2 & 14-3.
II. Rule 23(b)(2) Requirement An action may be maintained under Rule 23(b)(2) if “the
party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 564 U.S. at 360 (internal quotation marks omitted). The court concludes that a uniform, indivisible remedy would be possible in this case. Such remedy might take the form of a
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declaratory judgment finding that respondents’ policies or practices violate civil detainees’ Fifth Amendment Due Process rights, or an injunction requiring SCDOC to reduce the population of detainees (and/or other inmates) to a level that allows for adequate social distancing. See Savino, 2020 WL 1703844, at *8; Fraihat, 2020 WL 1932570, at * 20.

CONCLUSION For the following reasons, the court provisionally certifies the proposed class of all individuals who are now held in civil immigration detention at SCDOC for the purpose of facilitating expedited bail hearings of those individuals. SO ORDERED.

May 4, 2020 cc: Counsel of record.

__________________________ Landya McCafferty United States District Judge

11

 
 Case 1:20-cv-00453-LM Document 52 Filed 05/04/20 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robson Xavier Gomes
v.
US Department of Homeland Security, Acting Secretary et. al.

Civil No. 20-cv-00453-LM

O R D E R On May 1, 2020, the court held an eight-hour video evidentiary hearing about the efforts at the Strafford County House of Corrections (“SCHOC”) to address the COVID-19 pandemic. At the hearing, the Superintendent of SCHOC, Christopher Brackett, testified about the current conditions at SCHOC, as did Petitioner Gomes and two other detainees. Prior to the hearing, the parties submitted a joint statement of material facts (doc. no. 47) and several exhibits. At the end of the hearing, the court issued a decision orally from the bench that, despite the highly laudable efforts of Superintendent Brackett, the high-risk detainees had made out against respondents a substantial claim of deliberate indifference to their medical needs and were entitled to bail hearings, as occurred in Savino. Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *1 (D. Mass. Apr. 8, 2020); See also Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972); Mapp v. Reno, 241 F.3d 221, 230 (2d Cir. 2001);

Case 1:20-cv-00453-LM Document 52 Filed 05/04/20 Page 2 of 10
Bader v. Coplan, No. CIV. 02-508-JD, 2003 WL 163171, at *4 (D.N.H. Jan. 23, 2003)).
At the bail hearings, the respondents will have the burden to prove by clear and convincing evidence that each petitioner is either a danger to the public or a flight risk. See Hernandez-Lara v. Immigration & Customs Enf't, Acting Dir., No. 19-CV-394-LM, 2019 WL 3340697, at *7 (D.N.H. July 25, 2019).
Many other courts have also held that detainees who have a physical condition that places them at higher risk should they contract COVID-19 are likely to succeed in their due process claims. See, e.g., Fraihat v. U.S. Immigration & Customs Enf't, No. EDCV191546JGBSHKX, 2020 WL 1932570, at *24 (C.D. Cal. Apr. 20, 2020) (noting that the detention facilities’ “month-long failure to quickly identify individuals most at risk of COVID-19 complications and require specific protection” was a reason plaintiffs were likely to succeed in their deliberate indifference claim); Coronel v. Decker, No. 20-CV-2472 (AJN), 2020 WL 1487274, at *6 (S.D.N.Y. Mar. 27, 2020) (finding respondents were deliberately indifferent to detainees serious, unmet medical needs because government had done “nothing to alleviate the specific, serious, and unmet medical needs of the high-risk Petitioners”).1
1 A written decision on the findings I summarized orally at the close of the May 1 hearing will be issued later this week.
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Today the court is also issuing an order provisionally certifying the class for the limited purpose of scheduling these bail hearings, as occurred in Savino and Zepeda. See Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848, at *1 (N.D. Cal. Apr. 29, 2020); Savino, 2020 WL 1703844, at *1.
As noted, at the close of the May 1 hearing, the court explained to the parties that it intended to grant the high-risk habeas petitioners bail hearings. The court asked the parties to work together to identify detainees who fell within a highrisk category. The court scheduled three bail hearings for high-risk detainees on May 4, 2020. The court left it to the parties to determine which detainees had conditions that placed them in a high-risk category and which detainees should receive the first three bail hearings.
Over the weekend, petitioners reviewed the record and identified 19 detainees whom they contend fall within a highrisk category. Respondents countered that only one detainee on the petitioners’ list falls within a high-risk category. Therefore, rather than convene the three bail hearings that the court ordered to occur on today’s date, the court scheduled an emergency status conference via telephone to occur this morning.
During this morning’s telephone hearing, respondents informed the court that they had an independent medical expert review the medical files of the 19 detainees identified by
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petitioners. The medical expert determined that one detainee’s medical conditions made him a “ticking time bomb.” Immigration and Customs Enforcement (“ICE”) agreed to release this detainee with conditions. However, the medical expert determined that the other detainees were not especially susceptible to COVID-19. The medical expert’s determination appears to result from an overly narrow interpretation of the CDC and ERO guidance. For example, petitioners reviewed detainee medical records, identified three detainees as having hypertension or tachycardia, and included these detainees on the list of 19 high-risk detainees. The CDC website on “Groups at Higher Risk for Severe Illness” specifies that “serious heart conditions” such as “heart failure, coronary artery disease, congenital heart disease, cardiomyopathies, and pulmonary hypertension, may put people at higher risk for several illness for COVID-19.”2 The same website further explains that COVID-19 is a new disease and there is limited information regarding risk factors for severe disease. Id. However, respondents’ medical expert, apparently after reviewing the same detainee medical records, and using the same CDC guidance, determined that hypertension
2 CDC, Groups at Higher Risk for Severe Illness https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (last visited May 3, 2020).
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was not a “serious heart condition” and found that these detainees were not high-risk.3
Respondents thus now argue that 18 of the 19 detainees that petitioners have identified do not actually have a medical condition that places them in a high-risk category. The government intended to have two medical professionals testify that the detainees did not qualify under the CDC guidelines as high-risk.
The court is concerned that respondents’ approach to identifying high-risk detainees at SCHOC is too narrow. In early April, Peter Berg, Assistant Director of Field Operations, sent an e-mail to ICE detention facilities ordering them to conduct an internal review to identify high-risk detainees and
3 The court recognizes that tachycardia is not explicitly included on the CDC list of “serious heart conditions” and that hypertension and pulmonary hypertension may be medically distinguishable. However, the ERO guidance document identifies “heart disease” as one of the categories of chronic illnesses that make detainees immune-compromised. Furthermore, medical authorities recognize that for individuals with hypertension, “‘COVID will cause a systemic reaction in the body of a patient that already has risk.’” See CNN, “Those with high blood pressure are at a greater risk for Covid-19. Here’s what you need to know to protect yourself” https://www.cnn.com/2020/ 04/17/health/blood-pressure-coronavirus-wellness/index.html (quoting Dr. Maria Carolina Delgado-Levievre, Assistant Professor of Medicine at the University of Mimi’s Miller School of Medicine).
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“re-assess custody.”4 This e-mail, which is attached to ICE’s
Enforcement and Removal Operations (“ERO”) Pandemic Response
Requirements,5 explained that because certain conditions place
detainees at a higher-risk for serious illness from COVID-19,
detention facilities should identify high-risk detainees and
review their cases “to determine whether continued detention
remains appropriate in light of the COVID-19 pandemic.” Id.
The ERO guidance expanded on the list of categories that the CDC
has deemed to be at potentially higher-risk for serious illness
from COVID-19, and directed field officers to “re-assess
custody” for the following detainees:
• Pregnant detainees or those having delivered in the last two weeks
• Detainees over 60 years old • Detainees of any age having chronic illnesses which would
make them immune-compromised, including but not limited to: o Blood Disorders o Chronic Kidney Disease o Compromised immune system (e.g., ongoing treatment such as chemotherapy or radiation, received an organ or bone marrow transplant, taking high doses of corticosteroids or other immunosuppressant medications) o Endocrine disorders o Metabolic disorders o Heart disease o Lung disease
4 April 4, 2020 e-mail from Assistant Director Peter Berg, Enforcement and Removal Operations, Updated Guidance: COVID-19 Detained Docket Review, https://www.ice.gov/doclib/ coronavirus/attk.pdf (last visited May 3, 2020) (emphasis added)
5 ICE’s Enforcement and Removal Operations COVID-19 Pandemic Response Requirements (available at: https://www.ice.gov/coronavirus) (Last visited May 3, 2020)
6

Case 1:20-cv-00453-LM Document 52 Filed 05/04/20 Page 7 of 10
o Neurological and neurologic and neurodevelopment conditions
Id. (emphasis added). The guidance states that the “presence of one of the factors listed above should be considered a significant discretionary factor weighing in favor of release.” Id. (emphasis added). The guidance, like the CDC website, indicates that this list of conditions is non-exhaustive. The guidance also contains links to further information to assist ICE detention facilities, such as SCHOC, in making these critical and potentially “life or death” decisions.
Thus, ICE facilities were directed a month ago to identify high-risk detainees. On May 1, 2020, the court ordered respondents to work with petitioners to identify high-risk detainees. And now the court has learned that respondents are narrowly interpreting the guidelines such that evidence from detainee medical files that indicates a detainee suffers from hypertension, a heart arrhythmia, or high blood pressure does not, in the government’s view, qualify that detainee as having a high-risk condition.
As the court stated on the record during the May 1, 2020 hearing, and reiterated during today’s telephone call, detainees who have conditions which place them at higher risk for severe illness from COVID-19 have demonstrated a substantial claim of
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constitutional error. These detainees are eligible to receive bail hearings.
Going forward, if detainees have objective evidence that they have a medical condition listed on the CDC’s “Groups at Higher Risk for Severe Illness” website,6 or contained on the ERO guidance document,7 the court will accept that evidence as establishing a prima facie case that the detainee has that medical condition. If respondents wish to rebut petitioners’ prima facie case with evidence that a detainee’s claimed medical condition is false or fabricated, or is obviously excluded from the CDC/ERO guidance, the court will allow respondents to attempt to rebut the prima facie case. A retained medical expert is not necessary, however, to make these screening decisions. Nothing in the ERO guidance suggests that the guidelines are to be given a narrow construction—as though the detainee were applying for social security benefits.
6 CDC, Groups at Higher Risk for Severe Illness https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (last visited May 3, 2020).
7 April 4, 2020 e-mail from Assistant Director Peter Berg, Enforcement and Removal Operations, Updated Guidance: COVID-19 Detained Docket Review, https://www.ice.gov/doclib/ coronavirus/attk.pdf (last visited May 3, 2020).
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In light of ERO’s own guidance to detention facilities to “re-assess custody” for high-risk detainees,8 and the extraordinary risk COVID-19 presents to high-risk detainees, the court reminds respondents that it is not in the interest of SCHOC, its detainees, or its staff to keep high-risk detainees in an institutional setting if these individuals do not pose a flight risk or danger to the community. Reducing the population at detention facilities so that all who remain (including staff) may be better protected, is of interest not just to SCHOC but to the public at large.
Counsel shall confer and give the court’s case manager a list of detainees that counsel can agree state a prima facie case of being in a high-risk category. If the respondents do not intend to attempt to rebut that prima facie case, the court will immediately schedule bail hearings for those detainees. Should respondents intend to attempt a rebuttal of the prima facie case, they should immediately notify opposing counsel and the court’s case manager. The court will schedule a hearing to occur via telephone to rule on whether the detainee qualifies for a bail hearing. Such a telephonic hearing will likely be sealed to protect those detainees’ private medical information.
8 April 4, 2020 e-mail from Assistant Director Peter Berg, Enforcement and Removal Operations, Updated Guidance: COVID-19 Detained Docket Review, https://www.ice.gov/doclib/ coronavirus/attk.pdf (last visited May 3, 2020)
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Finally, during today’s telephone conference, the court set

up a procedure to handle confidential medical information at

upcoming bail hearings. Specifically, the court will schedule a

telephone conference with counsel and the detainee at issue to

discuss the confidential medical information. The transcript of

the call will be sealed. Counsel should be prepared to discuss

the manner in which counsel and the court shall refer in the

public record to the particular diagnosis (or health issues) so

that the public has an understanding of the generic diagnosis

(or health issue) without hearing all of the private details

related to that health issue. If necessary, the court will

revisit this procedure and make changes. Counsel agreed that the

proposed procedure properly balances the individual detainee’s

right to privacy with the public’s right to access this critical

information.

The court held a bail hearing this afternoon for the one

detainee that all parties agreed at the telephone conference has

a medical condition that places him in a high-risk category.

The court denied that detainee’s bail request for the reasons

stated on the record.

SO ORDERED.

May 4, 2020 cc: Counsel of Record.

__________________________ Landya McCafferty United States District Judge

10

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robson Xavier Gomes
v.
U.S. Department of Homeland Security, Acting Secretary

Civil No. 20-cv-453-LM

ORDER ON MEDICAL EVIDENCE

During a hearing on May 18, 2020, in this case, the court learned that United States Immigration and Customs Enforcement (“ICE”) does not maintain a complete set of medical records for detainees in its custody. That is, ICE does not require facilities to send medical records with detainees as they move them from one facility to another. When ICE transfers a detainee out of facility 1 into facility 2 and then into facility 3, that detainee arrives at facility 3 with no medical records from facilities 1 or 2. According to counsel for ICE, facility 3 conducts an intake interview with the detainee to develop its medical record for that detainee. Thus, in this case, when ICE provides petitioners’ counsel with medical records for a detainee housed in Strafford County House of Corrections, the medical records often consist only of medical records compiled by the Strafford County House of Corrections.

They do not include all records compiled while the detainee has been in ICE custody.
The court is currently holding bail hearings for high-risk detainees on a continuing basis. A threshold issue in these cases is whether a detainee qualifies as “high-risk.” Going forward if a detainee has no Strafford County House of Correction medical record to substantiate his medical vulnerability claim, petitioners may go forward without a medical record if the detainee can testify credibility that s/he suffers from a qualifying medical condition. The court will permit petitioners’ counsel to submit a detainee’s testimony on his medical condition at a sealed video hearing prior to the bail hearing. In those limited situations when petitioners’ counsel deems it necessary, the court will permit counsel to introduce corroborating testimony of a family member to help establish a prima facie case of that detainee’s vulnerability to COVID.
As explained in the court’s order dated May 4, 2020 (doc. no. 52), if respondents wish to rebut a petitioner’s prima facie case, they may do so “with evidence that a detainee’s claimed medical condition is false or fabricated, or is obviously excluded from the CDC/ERO guidance. . . . A retained medical
2

expert is not necessary, however, to make these screening decisions.” Doc. no. 52 at 8.
SO ORDERED.

Date: May 20, 2020 cc: Counsel of Record.

__________________________ Landya McCafferty United States District Judge

3

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robson Xavier Gomes
v.
US Department of Homeland Security, Acting Secretary et. al.

Civil No. 20-cv-453-LM Opinion No. 2020 DNH 085

O R D E R On May 18, 2020, the court held a hearing on petitioners’ emergency motion for relief regarding 8 civil immigration detainees whom respondents intended to transfer out of Strafford County House of Corrections (SCHOC) on May 19, 2020. Doc. no. 122, as amended by doc. no. 131. The court also heard arguments on petitioners’ emergency request for an injunction halting further transfers of ICE detainees into the SCHOC. Doc. no. 132.

I. Petitioners’ Requests Regarding 8 Transfers out of SCHOC
On May 14, petitioners submitted an emergency motion (doc. no.
122) seeking the following injunctive relief:
1) require respondents to disclose specific information prior to transferring ICE detainees from SCHOC; and
2) prevent ICE from transferring any ICE detainees to any other facility for non-removal purposes; or
3) give each detainee a bail hearing prior to transfer.

On May 16, after a detainee at SCHOC tested positive for
COVID-19, the first confirmed case for an inmate at the
facility, petitioners filed two additional motions. First,
petitioners filed a motion seeking discovery about the detainee
who tested positive and SCHOC’s contact tracing, testing, and
quarantine capacities. Doc. no. 133. Prior to the May 18
hearing, respondents rendered that motion moot by disclosing the
requested information.
Second, petitioners filed an addendum to their request for
emergency relief as to the 8 detainees being transferred out of
SCHOC. Doc. no. 131. In light of the positive COVID-19 test,
petitioners withdrew their request that ICE not transfer any
detainees to other facilities for non-removal purposes because
some detainees may prefer to be transferred out of the facility.
Petitioners added requests for injunctive relief and requested
the following order:
A. When ICE intends to transfer a class member for non-removal purposes, ICE shall provide the following information to Petitioners’ counsel 72 hours prior to transfer to ensure that the class member’s rights are protected: (i) where ICE intends to transfer the detainee, (ii) whether that facility has confirmed COVID-19 cases among staff or detainees, (iii) whether the transferred individual will be housed in single or congregate cells in that facility, (iv) the percentage capacity of the facility and whether it is significantly less than the current capacity at the SCDOC, and (v) whether the detainee has any indication in his or her entire ICE medical file reflecting medical vulnerability according to the Court’s May 4,
2

2020 criteria (see Docket No. 52) in determining medical vulnerability and, thus, entitlement to bail hearings; and
B. For any detainee who ICE intends to transfer for non-removal reasons, any such detainee shall be provided an immediate bail hearing before this Court prior to transfer;
C. ICE should not transfer any detainee for any reason before that detainee receives a test for COVID-19 infection and provides the negative outcome of the test to the Court, even where bail has been denied for the detainee. If an individual declines to be tested, then the individual may be moved so long as it is compliant with ICE internal protocols; and
D. Any detainee released by ICE in its discretion or by this Court on bail shall be given an immediate test for COVID-19 at ICE’s expense. If there is a positive test, the detainee should be immediately transported to a nearby hospital where the detainee can receive appropriate medical care at ICE’s expense.
Paragraph A
With respect to petitioners’ request in paragraph A,
respondents agreed during the hearing that at least 48 hours
before a detainee from SCHOC is transferred to another facility,
they will inform petitioners:
1) Which field office and, if known, which facility the detainee will be transferred to;
2) Whether any facility under the authority or within the jurisdiction of the field office has any confirmed COVID19 cases among those who work or are detained at the facility and, if so, which facility and how many COVID-19 positive individuals are present;
3) The percentage capacity of the transferee facility at the time of transfer—or facilities operated by the field
3

office at the time of transfer—and how that percentage compares to the capacity at SCHOC at the time of transfer; and 4) Whether there is any indication in a detainee’s medical record that the detainee is medically vulnerable. Respondents are unable to provide some of the additional information that petitioners requested. For example, respondents cannot inform petitioners whether a transferred detainee will be housed in a single or congregate cell because that information is not known until a detainee reaches the receiving facility. Respondents also assert that ICE does not maintain any sort of cumulative medical records for detainees in its custody. Surprisingly, ICE does not transfer medical records from one facility to another when detainees are transferred. When a detainee is transferred into SCHOC, while this case is pending, the court encourages respondents to ask the sending facility to transfer any detainee medical records that are in the custody or control of ICE or the sending facility. Although respondents argued that petitioners could discover COVID-positive data from ICE’s “confirmed cases” coronavirus website, see https://www.ice.gov/coronavirus, petitioners asserted that the website is not up to date and only includes data about ICE employees. Thus, the website does not include information about employees that work at a facility like SCHOC
4

because those employees work for Strafford County as opposed to ICE. Indeed, as of May 19, 4 days after a medical records administrator at SCHOC tested positive for COVID-19, and three days after a detainee tested positive, SCHOC was still not listed on the ICE website as a facility with a confirmed case of COVID-19. On May 20, the ICE website stated one detainee at SCHOC had tested positive for COVID-19 but the website did not indicate that a staff member who works at SCHOC had also tested positive. Counsel for respondents agreed to inquire whether additional information may be available about the presence of COVID-19 at receiving facilities from other sources. If additional information is available, respondents agreed to disclose this information to petitioners.
Paragraphs B & D In light of respondents’ agreement to make the above
information available, petitioners withdrew their request in paragraph B that all detainees receive bail hearings prior to transfer. Petitioners also withdrew the request in paragraph D that all detainees released from SCHOC by ICE or the Court be tested for COVID-19. Petitioners will renew these requests on a case-by-case basis as deemed necessary.
5

Paragraph C This leaves petitioners’ request that ICE: [N]ot transfer any detainee for any reason before that detainee receives a test for COVID-19 infection and provides the negative outcome of the test to the Court, even where bail has been denied for the detainee. If an individual declines to be tested, then the individual may be moved so long as it is compliant with ICE internal protocols.
Doc. no. 131 at 5. At the time of the hearing, respondents were reluctant to agree to test all detainees prior to transfer because tests might not be available and there was a possibility of false negatives. Counsel for respondents agreed, however, to inquire with SCHOC and ICE about the possibility of testing detainees before ICE transfers them to a new facility. Respondents agreed to update the court and petitioners regarding that issue.
The court appreciates that, up until two weeks ago, the limited number of COVID tests in New Hampshire may have restricted SCHOC’s ability to test incoming or outgoing detainees. However, in the last two weeks, more COVID-19 tests are available and anyone experiencing symptoms or anyone who falls into a higher risk category due to age, medical condition, or other risk factor—such as health care workers or long-term care facility workers—may also be tested. See
6

https://www.wmur.com/article/get-coronavirus-test-newhampshire/32479184 (last accessed May 19, 2020 at 4PM).
As the court noted in the May 14, 2020 order, living in a congregate setting such as SCHOC places detainees at a higher risk of being infected with COVID-19. See doc. no. 123 at 9. Medical experts from the Department of Homeland Security have warned of a “tinderbox scenario” in ICE detention centers where the virus could spread rapidly once introduced. See doc. no. 5-2 at 4-6; see also doc. no. 5-3 at 4. Just a few days ago, on Saturday, May 16, 2020, an ICE detainee coming from a facility with known cases of COVID-19 was not tested prior to being transferred to SCHOC and now has become the first detainee at SCHOC to test positive for COVID-19.
The court appreciates that it may not be possible to test everyone in New Hampshire for COVID-19 at this time. However, SCHOC has three known cases of COVID-19 within the facility (two detainees and one employee) and it is unknown at this time whether additional individuals within the facility may also have COVID-19 because there has not been widespread testing within the facility. Transferring detainees without first confirming they are COVID-negative is unnecessarily risky to the detainee, those transferred alongside the detainee, and the receiving facility.
7

In light of these public health risks, the court is hopeful that respondents will reassess the situation and decide to test SCHOC detainees before transferring them out of SCHOC and into a new facility. However, this decision is one best left to respondents. The court is not persuaded it has the authority to order that ICE perform these tests.
II. Request to Halt Transfers into the SCHOC In response to the detainee testing positive for COVID-19,
petitioners filed an emergency motion asking the court to stop respondents from transferring ICE detainees into SCHOC until the court resolves petitioners’ pending motion seeking the same relief. Doc. nos. 132 and 7. At the hearing, petitioners modified this request slightly and no longer seek to exclude short-term “airlift” detainees from entering the facility.1 Petitioners argue this relief is necessary in order to prevent detainees with COVID-19 from entering SCHOC and endangering class members. Petitioners further argue that it is necessary to stop new detainees from entering SCHOC in order to improve the facility’s ability to implement social distancing by
1 “Airlift” detainees are only in the facility for 4 or 5 days and spend their entire stay in quarantine. See doc. no. 123 at 21.
8

decreasing—or at least not increasing—the population at SCHOC. Doc. no. 7.
The court recognizes that a limited number of courts have issued preliminary injunctions enjoining ICE from transferring detainees into detention facilities. See, e.g., Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 2404923, at *11 (D. Mass. May 12, 2020). But see Roman et al. v. Wolf et al., 20-00768 TJH (C.D. Cal. April 23, 2020), Preliminary Injunction ¶ 1 (“Adelanto shall not accept any new detainees”), rev’d 2020 WL 2188048, at *1 (9th Cir. May 5, 2020) (staying this portion of the preliminary injunction).
At this point, on this record, petitioners have not persuaded the court either that it has the authority to place a judicial blockade on the doors of SCHOC or that such relief is necessary. Thus, the court denies without prejudice petitioner’s emergency request for a preliminary injunction halting transfers into SCHOC.
CONCLUSION For the reasons stated above, and on the record during the May 18, 2020 hearing, the court grants in part and denies in part petitioners’ motion for relief with regard to the 8 detainees to be transferred out of SCHOC. Doc. no. 122. The
9

court denies petitioners’ request for a preliminary injunction halting detainee transfers into SCHOC without prejudice. Doc. no. 132. Petitioners’ request for discovery is moot. Doc. no. 133.
SO ORDERED.

May 21, 2020 cc: Counsel of Record.

__________________________ Landya McCafferty United States District Judge

10

 
  
 Case 1:20-cv-00453-LM Document 7 Filed 04/20/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

ROBSON XAVIER GOMES, DARWIN ALIESKY CUESTA-ROJAS and JOSÉ NOLBERTO TACURI-TACURI, on behalf of themselves and all those similarly situated,
Petitioners-Plaintiffs,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security,
MARCOS CHARLES, Immigration and Customs Enforcement, Enforcement and Removal Operations, Acting Field Office Director,
CHRISTOPHER BRACKETT, Superintendent of the Strafford County Department of Corrections,
Respondents-Defendants.

Civil Action No. 1:20-cv-453-LM

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION AND MOTION FOR EXPEDITED DISCOVERY
PLEASE TAKE NOTICE THAT, as soon as they may be heard, Plaintiffs-Petitioners (“Plaintiffs”) will, and hereby do move this Court, pursuant to Federal Rule of Civil Procedure 65, to grant its motion for a preliminary injunction and enter an order halting the transfer of civil immigration detainees from other ICE detention facilities to SCDOC and directing Defendants to expedite the production of the priority discovery listed in the enclosed Proposed Order. As grounds for this Motion, Plaintiffs rely on and incorporate fully the memorandum of law in support of the motion, and the exhibits thereto, all of which are submitted herewith.

Case 1:20-cv-00453-LM Document 7 Filed 04/20/20 Page 2 of 5
Respectfully Submitted,
PETITIONERS/PLAINTIFFS
By and through their attorneys affiliated with the American Civil Liberties Union of New Hampshire Foundation and Nixon Peabody LLP,
/s/ Nathan P. Warecki David A. Vicinanzo (N.H. Bar No. 9403) W. Scott O’Connell (N.H. Bar No. 9070) W. Daniel Deane (N.H. Bar No. 18700) Nathan P. Warecki (N.H. Bar No. 20503) Michael E. Strauss (N.H. Bar No, 266717) NIXON PEABODY LLP 900 Elm Street, 14th Floor Manchester, NH 03101 (603) 628-4000 dvicinanzo@nixonpeabody.com soconnell@nixonpeabody.com ddeane@nixonpeabody.com nwarecki@nixonpeabody.com mstrauss@nixonpeabody.com
Marx Calderon (pro hac vice forthcoming) Colin Missett (pro hac vice forthcoming) NIXON PEABODY LLP Exchange Place 53 State Street Boston, MA 02109-2835 (617) 345-1000 mcalderon@nixonpeabody.com cmissett@nixonpeabody.com
Ronald Abramson (N.H. Bar No. 9936) Emily White (N.H. Bar No. 269110) SHAHEEN & GORDON P.A. 180 Bridge Street Manchester, NH 03104 (603) 792-8472 rabramson@shaheengordon.com ewhite@shaheengordon.com
Henry C. Quillen (N.H. Bar No. 265420) WHATLEY KALLAS LLP 159 Middle Street, Suite 2C
2

Case 1:20-cv-00453-LM Document 7 Filed 04/20/20 Page 3 of 5
Portsmouth, NH 03801 (603) 294-1591 hquillen@whatleykallas.com
Gilles R. Bissonnette (N.H. Bar No. 265393) Henry Klementowicz (N.H. Bar No. 21177) AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE NEW HAMPSHIRE IMMIGRANTS’ RIGHTS PROJECT 18 Low Avenue Concord, NH 03301 (603) 333-2081 gilles@aclu-nh.org henry@aclu-nh.org
Michael K.T. Tan (pro hac vice forthcoming) Omar C. Jadwat (pro hac vice forthcoming) AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600 mtan@aclu.org ojadwat@aclu.org
David C. Fathi (pro hac vice forthcoming)* Eunice H. Cho (pro hac vice forthcoming)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 (202) 548-6616 dfathi@aclu.org echo@aclu.org
Laurel M. Gilbert (pro hac vice forthcoming) HINCKLEY ALLEN & SNYDER LLP 28 State Street Boston, MA 02109-1775 (617) 378-4160 lgilbert@hinckleyallen.com John P. Newman (N.H. Bar No. 8820) NEWMAN LAW OFFICE, PLLC 15 High Street Manchester, NH 03101
3

Case 1:20-cv-00453-LM Document 7 Filed 04/20/20 Page 4 of 5 (603) 935-5603 john@newmanlawnh.com
*Not admitted in D.C.; practice limited to federal courts Date: April 20, 2020
4

Case 1:20-cv-00453-LM Document 7 Filed 04/20/20 Page 5 of 5
CERTIFICATE OF SERVICE I hereby certify that on April 20, 2020, I electronically filed the foregoing document with the United States District Court for the District of New Hampshire by using the CM/ECF system. I certify that the parties or their counsel of record registered as ECF Filers will be served by the CM/ECF system, and paper copies will be sent to those indicated as non-registered participants, if any.
/s/ Nathan P. Warecki

 
 Case 1:20-cv-00453-LM Document 9 Filed 04/20/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

ROBSON XAVIER GOMES, DARWIN ALIESKY CUESTA-ROJAS and JOSÉ NOLBERTO TACURI-TACURI, on behalf of themselves and all those similarly situated,
Petitioners-Plaintiffs,
v.
CHAD WOLF, Acting Secretary of Department of Homeland Security,
MARCOS CHARLES, Immigration and Customs Enforcement, Enforcement and Removal Operations, Acting Field Office Director,
CHRISTOPHER BRACKETT, Superintendent of the Strafford County Department of Corrections,
Respondents-Defendants.

Civil Action No. 1:20-cv-453-LM

NOTICE OF MOTION AND EMERGENCY MOTION FOR EXPEDITED BAIL HEARINGS FOR PLAINTIFFS AND ALL PUTATIVE CLASS MEMBERS PLEASE TAKE NOTICE THAT, as soon as they may be heard, Plaintiffs-Petitioners
(“Plaintiffs”) will, and hereby do move this Court, pursuant to the Court’s inherent power to grant bail pending a merits determination on their habeas petition, for an order scheduling expedited bail hearings on behalf of themselves and the putative class of civil immigration detainees now held by Respondents-Defendants at Strafford County House of Corrections (“SCDOC”). Plaintiffs note that the Court has issued a Scheduling Order which sets forth a bail application procedure for Plaintiff Robson Xavier Gomes only. See ECF No. 2. An expedited process is required in light of

Case 1:20-cv-00453-LM Document 9 Filed 04/20/20 Page 2 of 5
the recent joinder of Plaintiff Darwin Aliesky Cuesta-Rojas and Plaintiff Jose Nolberto Tacuri-
Tacur, see ECF No. 5, for whom no scheduling order has yet been ordered, and the
contemporaneously filed motion for class certification which seeks certification of a class of
approximately 62 civil immigration detainees now held at SCDOC. As grounds for this Motion,
Plaintiffs rely on and incorporate fully the memorandum of law in support of the motion.
Respectfully Submitted,
PETITIONERS/PLAINTIFFS
By and through their attorneys affiliated with the American Civil Liberties Union of New Hampshire Foundation and Nixon Peabody LLP,
/s/ Nathan P. Warecki David A. Vicinanzo (N.H. Bar No. 9403) W. Scott O’Connell (N.H. Bar No. 9070) W. Daniel Deane (N.H. Bar No. 18700) Nathan P. Warecki (N.H. Bar No. 20503) Michael E. Strauss (N.H. Bar No, 266717) NIXON PEABODY LLP 900 Elm Street, 14th Floor Manchester, NH 03101 (603) 628-4000 dvicinanzo@nixonpeabody.com soconnell@nixonpeabody.com ddeane@nixonpeabody.com nwarecki@nixonpeabody.com mstrauss@nixonpeabody.com
Marx Calderon (pro hac vice forthcoming) Colin Missett (pro hac vice forthcoming) NIXON PEABODY LLP Exchange Place 53 State Street Boston, MA 02109-2835 (617) 345-1000 mcalderon@nixonpeabody.com cmissett@nixonpeabody.com
Ronald Abramson (N.H. Bar No. 9936) Emily White (N.H. Bar No. 269110)
2

Case 1:20-cv-00453-LM Document 9 Filed 04/20/20 Page 3 of 5
SHAHEEN & GORDON P.A. 180 Bridge Street Manchester, NH 03104 (603) 792-8472 rabramson@shaheengordon.com ewhite@shaheengordon.com
Henry C. Quillen (N.H. Bar No. 265420) WHATLEY KALLAS LLP 159 Middle Street, Suite 2C Portsmouth, NH 03801 (603) 294-1591 hquillen@whatleykallas.com
Gilles R. Bissonnette (N.H. Bar No. 265393) Henry Klementowicz (N.H. Bar No. 21177) AMERICAN CIVIL LIBERTIES UNION OF NEW HAMPSHIRE NEW HAMPSHIRE IMMIGRANTS’ RIGHTS PROJECT 18 Low Avenue Concord, NH 03301 (603) 333-2081 gilles@aclu-nh.org henry@aclu-nh.org
Michael K.T. Tan (pro hac vice forthcoming) Omar C. Jadwat (pro hac vice forthcoming) AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2600 mtan@aclu.org ojadwat@aclu.org
David C. Fathi (pro hac vice forthcoming)* Eunice H. Cho (pro hac vice forthcoming)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, NATIONAL PRISON PROJECT 915 15th St. N.W., 7th Floor Washington, DC 20005 (202) 548-6616 dfathi@aclu.org echo@aclu.org
Laurel M. Gilbert (pro hac vice forthcoming)
3

Case 1:20-cv-00453-LM Document 9 Filed 04/20/20 Page 4 of 5 HINCKLEY ALLEN & SNYDER LLP 28 State Street Boston, MA 02109-1775 (617) 378-4160 lgilbert@hinckleyallen.com John P. Newman (N.H. Bar No. 8820) NEWMAN LAW OFFICE, PLLC 15 High Street Manchester, NH 03101 (603) 935-5603 john@newmanlawnh.com
*Not admitted in D.C.; practice limited to federal courts Date: April 20, 2020
4

Case 1:20-cv-00453-LM Document 9 Filed 04/20/20 Page 5 of 5
CERTIFICATE OF SERVICE I hereby certify that on April 20, 2020, I electronically filed the foregoing document with the United States District Court for the District of New Hampshire by using the CM/ECF system. I certify that the parties or their counsel of record registered as ECF Filers will be served by the CM/ECF system, and paper copies will be sent to those indicated as non-registered participants, if any.
/s/ Nathan P. Warecki

 
  
 Case 1:20-cv-00453-LM Document 123 Filed 05/14/20 Page 1 of 61

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robson Xavier Gomes
v.
US Department of Homeland Security, Acting Secretary et. al.

Civil No. 20-cv-453-LM Opinion No. 2020 DNH 081

O R D E R Approximately 75 detainees being held in jail in Dover, New Hampshire bring this class action seeking emergency relief due to the risk of contracting COVID-19 in the jail. These detainees are not being held on criminal charges; they are civil detainees awaiting resolution of their immigration cases. Some of them have medical conditions (or are of an age) that places them at high risk of serious injury or death should they contract COVID-19. They seek various forms of relief, including release. The jail is run by a highly competent superintendent who has approached this public health emergency with great concern. As of the date of this order, there is no evidence of COVID-19 inside the jail. Nonetheless, no one can dispute that, despite the laudable leadership of the superintendent, it is likely only a matter of time before the jail sees its first case. And, once the virus is inside the jail, not only are detainees and inmates at great risk due to the nature of the

Case 1:20-cv-00453-LM Document 123 Filed 05/14/20 Page 2 of 61
virus and the close quarters of the jail, but the community of Dover could be at risk should large numbers of detainees or inmates need hospital care.
The most pressing question at the outset of this case is whether the detainees are entitled to bail hearings pending a ruling on the merits of their constitutional claims. The court has answered that question in the affirmative for those detainees who have medical conditions (or are of an age) that render them particularly vulnerable to COVID-19. As of May 14, the court has conducted 11 bail hearings and released 7 detainees on conditions. With respect to the lower-risk detainees, the court explains in this order why it is not yet prepared to answer the question of whether they are entitled to bail hearings. This order summarizes to date the procedural history, factual background, and legal issues in this highlycharged and important case.
PROCEDURAL HISTORY Robson Xavier Gomes, Darwin Aliesky Cuesta-Rojas, and Jose Nolberto Tacuri-Tacuri, on behalf of themselves and all United States Immigration and Customs Enforcement (“ICE”) detainees held in civil immigration detention at the Strafford County House of Corrections (“SCHOC”), have filed a petition for a writ
2

Case 1:20-cv-00453-LM Document 123 Filed 05/14/20 Page 3 of 61
of habeas corpus along with a request for declaratory and injunctive relief. They bring claims against the following respondents: Chad Wolf, the Acting Secretary of the United States Department of Homeland Security; Todd Lyons, the Acting Field Director of Immigration and Customs Enforcement; and Christopher Brackett, the Superintendent of the Strafford County Department of Corrections.1 Petitioners allege that respondents are acting with deliberate indifference to their health and safety by detaining them in conditions that impose a substantial risk of harm due to COVID-19. Pending before the court are petitioners’ amended petition,2 motion for preliminary injunctive relief and expedited discovery, emergency motion for expedited bail hearings, and motion to certify the proposed class.3
On April 27, 2020, the court held a video hearing to give the parties the opportunity to address the legal standards
1 ICE has an intergovernmental service agreement with the Strafford County Department of Corrections to house civil immigration detainees. For purposes of this order, the acronym SCHOC will refer to both the detention facility and the Strafford County Department of Corrections, the entity that administers SCHOC.
2 “First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 and Class Complaint for Declaratory and Injunctive Relief” (doc. no. 5).
3 On May 4, 2020, the court provisionally certified the class for the limited purpose of holding expedited bail hearings for class members. (doc. no. 50).
3

Case 1:20-cv-00453-LM Document 123 Filed 05/14/20 Page 4 of 61
related to petitioners’ emergency motion for expedited bail hearings. Doc. no. 9. After the hearing, the court issued an order holding that the court may grant bail if petitioner demonstrates a “substantial claim of constitutional error” and “exceptional circumstances.” Doc. no. 35 (citing Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972); Bader v. Coplan, No. CIV. 02-508-JD, 2003 WL 163171, at *4 (D.N.H. Jan. 23, 2003); Mapp v. Reno, 241 F.3d 221, 230 (2d Cir. 2001)).
On May 1, 2020, the court held an eight-hour video evidentiary hearing about SCHOC’s efforts to reduce the risk of COVID-19 entering and spreading within the facility. The parties submitted a joint statement of material facts (doc. no. 47) and several exhibits. Superintendent Christopher Brackett, Petitioner Gomes, and two other detainees, Bairon Monroy Rosales and Rommel Chavez, testified about the current conditions at SCHOC. At the end of the hearing, the court issued a decision orally from the bench that those detainees with a condition that placed them at higher risk for severe illness or death from COVID-19 had demonstrated a substantial claim that respondents have acted with deliberate indifference to their medical needs. Due to the exceptional danger COVID-19 presents to these highrisk detainees, the court held that they were entitled to bail
4

Case 1:20-cv-00453-LM Document 123 Filed 05/14/20 Page 5 of 61
hearings.4 See Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *1 (D. Mass. Apr. 8, 2020) (“Savino I”); Mapp, 241 F.3d at 230. The court scheduled the first three bail hearings for high-risk detainees for May 4, 2020.
Unfortunately, the parties were unable to reach agreement on which detainees qualify as “high-risk.” On May 4, 2020, this court held a telephone conference to resolve this threshold question. Following that hearing, the court issued an order explaining which detainees the court considers to be “high risk.” Doc. no. 52. Also on May 4, the court issued an order provisionally certifying the proposed class of ICE detainees at SCHOC. Doc. no. 50. Later that same afternoon, the court began conducting bail hearings for the high-risk detainees.
This order lays out the court’s findings and rulings with respect to both categories of detainees. First, the order details the steps respondents have taken in response to the COVID-19 pandemic and explains in more detail why detainees with a condition that places them at high-risk for complications or death due to COVID-19 are likely to succeed on the merits of their due process claim. The order next explains why the court is not prepared at this time to issue a ruling on whether lower-
4 The court indicated that it would issue a written order outlining its findings and rulings, which would also address the claims of the detainees who are not in a high-risk category.
5

Case 1:20-cv-00453-LM Document 123 Filed 05/14/20 Page 6 of 61
risk detainees are likely to succeed on the merits of their habeas petition.
FACTUAL BACKGROUND I. The COVID-19 Pandemic
The world is currently experiencing a public health emergency due to the spread of an infectious disease known as the novel coronavirus or COVID-19. On March 11, 2020, the World Health Organization declared the outbreak of COVID-19 to be a pandemic. On March 13, 2020, President Donald Trump declared a national emergency based on the threat to public health posed by the virus. That same day Governor Chris Sununu declared a state of emergency in New Hampshire.
The dangers COVID-19 presents to human health are welldocumented and the number of people infected and killed by COVID-19 has skyrocketed over the past three months. The following list of dates and cumulative counts of confirmed cases and COVID-19 deaths as of those dates illustrates the exponential spread of this virus in the United States.5
5 CDC, https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html, drawing data from USAFACTS, Coronavirus Locations: COVID-19 Map by County and State, https://usafacts.org/visualizations/coronavirus-covid-19-spreadmap/, (last visited May 14, 2020).
6

Case 1:20-cv-00453-LM Document 123 Filed 05/14/20 Page 7 of 61

Cumulative Case Count: Feb. 6 = 11
March 6 = 276 April 6 = 365,370 May 6 = 1,221,163 May 14 = 1,386,095

Cumulative Number of deaths: Feb. 6 = 1
March 6 = 19 April 6 = 10,938
May 6 = 73,010 May 14 = 83,167

The spread of infection in New Hampshire has also grown exponentially. New Hampshire had its first confirmed case of COVID-19 on March 2, 2020.6 On April 6, there were 715 cases and 9 deaths from COVID-19.7 By May 6, 2,741 people in New Hampshire had been diagnosed with COVID-19 and 111 people had died.8 And, as of May 14, the date of this order, 3,299 people had COVID-19 and 150 people in New Hampshire have died.9

6 Id., see also New Hampshire Public Radio, Updated: Tracking COVID-19 Cases and Testing in New Hampshire, https://www.nhpr.org/post/updated-tracking-covid-19-cases-andtesting-new-hampshire#stream/0, (last visited May 14, 2020).
7 Id.
8 Id., see also N.H. Dept. Health & Human Services, COVID19, https://www.nh.gov/covid19/ (last visited May 14, 2020).
9 Id.
7

Case 1:20-cv-00453-LM Document 123 Filed 05/14/20 Page 8 of 61
Common symptoms of the virus include: fever, cough, shortness of breath, and chills.10 However, a “significant portion” of people with the virus are asymptomatic.11 And even those individuals who eventually develop symptoms can transmit the virus to others during the incubation period before they begin exhibiting symptoms. Id.
These characteristics of COVID-19 make it extremely difficult to know who has the virus and who does not. For that reason, the best way to minimize the spread of the virus is to limit face-to-face contact with others.12 The CDC recommends that everyone practice “social distancing” and stay at least six feet away from other people, avoid gathering in groups, and avoid crowded places or mass gatherings.13 Additionally, the CDC recommends that people frequently wash their hands, wear a cloth face covering around other people, and clean and disinfect
10 CDC, Symptoms of Coronavirus, https://www.cdc.gov/coronavirus/2019-ncov/symptomstesting/symptoms.html, (last visited May 14, 2020).
11 CDC, Recommendations Regarding the Use of Cloth Face Coverings, https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/cloth-face-cover.html#studies (last visited May 14, 2020).
12 CDC, Social Distancing, Quarantine, and Isolation, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/social-distancing.html, (last visited May 14, 2020).
13 Id. 8

Case 1:20-cv-00453-LM Document 123 Filed 05/14/20 Page 9 of 61
frequently used surfaces daily.14 There is currently no proven vaccine or treatment for the virus. Thus, the only way to protect ourselves and combat the spread of the virus is to prevent exposure to it.
Although no one is spared the risk of severe illness from COVID-19, there are individuals at a “higher risk for severe illness from COVID-19” due to age or underlying medical conditions. CDC, Groups at Higher Risk for Severe Illness, (“CDC Higher Risk”).15 These “high-risk” populations include, among others, people who are 65 years or older, have diabetes, serious heart conditions, or moderate to severe asthma, or who are immunocompromised or obese. Id.
II. The Special Danger of the Coronavirus in Correctional and Detention Facilities Some people are at a higher risk of contracting the virus
because of where they live or work. Prisons and detention centers are particularly susceptible to the introduction and spread of the virus due to “crowded dormitories, shared
14 CDC, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/prevention.html, (last visited May 14, 2020).
15 https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html (last visited May 14, 2020).
9

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lavatories, limited medical and isolation resources, daily entry and exit of staff members and visitors, continual introduction of newly incarcerated or detained persons, and transport of incarcerated or detained persons in multiperson vehicles for court-related, medical, or security reasons.”16 CDC, Megan Wallace et al, “COVID-19 in Correctional and Detention Facilities- United States, February-April 2020 (“CDC Detention Report”) (May 15, 2020).17 Once introduced, the virus is likely to spread quickly in a prison environment because detainees live, work, eat, study, and recreate in close quarters with one another. Additionally, detainees’ access to disease prevention measures (e.g. hand soap or cloth masks) may be limited and there may be cultural or structural disincentives for detainees to take preventative measures, report symptoms, or seek medical care. Id.
Medical professionals, including two medical experts from the Department of Homeland Security, have warned of a “tinderbox scenario” in ICE detention centers where the virus could spread rapidly once introduced, endangering not just the health and
16 https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm. 17 Wallace M, Hagan L, Curran KG, et al. COVID-19 in Correctional and Detention Facilities — United States, February– April 2020. 69 Morbidity & Mortality Weekly Report 587, 587-90, (May 15, 2020), https://www.cdc.gov/mmwr/volumes/69 /wr/pdfs/mm6919e1-H.pdf.
10

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safety of the detainees, but also the public at large by overwhelming local hospitals. See Basank v. Decker, No. 20 CIV. 2518 (AT), 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020);18 see also doc. no. 5-2 at 4-6 (declaration of Dr. Marc Stern); doc. no. 5-3 at 4 (declaration of Dr. Jonathan Louis Golob). Many courts have recognized the special danger posed by the spread of COVID-19 in prisons and detention centers. See, e.g., Savino I, 2020 WL 1703844, at *3; Durel B. v. Decker, No. CV 20-3430 (KM), 2020 WL 1922140, at *2 (D.N.J. Apr. 21, 2020) (observing the “stark reality is that avoiding exposure to COVID-19 is impossible for most detainees and inmates” (internal quotation marks omitted)).
As of May 14, 2020, at least 36,900 inmates or staff at state prisons, federal prisons, or local jails have become infected with COVID-19 and 375 inmates or staff have died.19 Four of the five largest outbreaks of COVID-19 in the country
18 Quoting Catherine E. Shoichet, Doctors Warn of “Tinderbox scenario” if Coronavirus Spreads in ICE Detention, CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/doctors-icedetention-coronavirus/index.html).
19 NY Times, Coronavirus in the U.S.: Latest Map and Case Count, https://www.nytimes.com/interactive/2020/us/coronavirusus-cases.html?action=click&module=Top%20Stories&pgtype=Homepage &action=click&module=Spotlight&pgtype=Homepage#states. (Updated May 14, 2020 3:03 PM).
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have been at correctional facilities.20 And, in spite of a low testing rate in jails and prisons, the known infection rate is 2 ½ times higher than in the general population.21 Over 70% of tested inmates in federal prisons have COVID-19, “strongly suggesting there are far more COVID-19 cases left uncovered.”22
As of April 2, 2020, six ICE detainees and five ICE staff at detention facilities had tested positive for COVID-19. By May 14, 2020, 943 detainees and 44 employees working in detention facilities had tested positive.23 This includes one detainee at the Bristol County House of Corrections in North Dartmouth, Massachusetts and 2 detainees at the Wyatt Detention Center in Central Falls, Rhode Island—two facilities that regularly transfer detainees to SCHOC.24
20 Id. 21 Radley Balko, Stopping covid-10 behind bars was an achievable moral imperative. We failed., https://www.washingtonpost.com/opinions/2020/05/01/stoppingcovid-19-behind-bars-was-an-achievable-moral-imperative-wefailed/ (published May 1, 2020). 22 Michael Balsamo, Over 70% of tested inmates in federal prisons have COVID-19, https://apnews.com/fb43e3ebc447355a4f71e 3563dbdca4f (published April 29, 2020). 23 U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus#tab1 (noting that 1,788 detainees had been tested) (last visited May 14, 2020). 24 Id.
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On March 23, the Centers for Disease Control and Prevention (“CDC”) issued guidance for correctional facilities and detention centers. See Resp. Ex. 5, CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (“CDC Interim Guidance”) (Mar. 23, 2020).25 ICE has also issued a Pandemic Response plan that requires facilities housing immigration detainees to, among other standards, comply with the CDC’s recommendations. See Resp. Ex. 19, ICE, Enforcement and Removal Operations COVID-19 Pandemic Response Requirements (“ICE PRR”) (Apr. 10, 2020).26 These documents acknowledge the importance of social distancing in detention centers. ICE represents that it is implementing testing, screening, use of personal protective equipment, and other measures in accordance with CDC guidelines.
III. The SCHOC Facility It is against this troubling backdrop that petitioners have
filed the instant suit. The named petitioners and the members of the provisionally certified class are all civil immigration
25 https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf.
26https://www.ice.gov/doclib/coronavirus/eroCOVID19responseR eqsCleanFacilities.pdf.
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detainees housed at SCHOC.27 SCHOC is a correctional facility located in Dover, New Hampshire, which has an intergovernmental service agreement with ICE to house civil immigration detainees. Doc. no. 47 at 4 (Joint Statement of Facts). The facility houses individuals who have been arrested by ICE for civil immigration offenses and acts as a staging facility before deportation for civil immigration detainees from other facilities in Massachusetts and Rhode Island. Id. at 13. As of April 30, 2020, the inmate population at the facility was 320, approximately 64% of its maximum 495-inmate capacity. Id. at 4; doc. no. 40.
At the May 1 hearing, Superintendent Brackett testified that detainee class members are housed throughout seven of the fourteen units at the SCHOC: units B, C, D, E, G, H, and J. Doc. no. 47 at 13. In general, civil detainees in these units are mixed in with state and/or federal criminal defendants awaiting trial, sentencing, or serving sentences. Units B, C, D, E, G, and H have similar layouts: detainees and prisoners live two people to a cell and share an open common area and showers. The cells in these units are approximately 7 feet by 13 feet in size and contain metal bunk beds, a desk, a sink, and
27 ICE released two of the named petitioners (Cuesta-Rojas and Tacuri-Tacuri) on conditions. See doc. no. 22.
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a toilet. See Resp. Ex. 16. The bunk beds are affixed to the wall of the cell and cannot be moved. The top bunk is approximately two or three feet above the bottom bunk. Units G and H are larger general population units, each with the capacity to hold 72 inmates in 36 cells separated onto two floors.
Unit J is set up differently than the other units. It is a “barracks” style unit with no cells and an open floor plan. Detainees sleep in rows of freestanding bunk beds that are divided between two floors. Prior to April 23, the bunk beds in Unit J were between two and four feet from one another. As of April 23, the bunk beds were moved to be six feet apart. See doc. no. 47 at 22; Resp. Exs. 11 & 14. Unit J houses civil immigration detainees on the second floor and criminal defendants on the bottom floor. There are approximately 12 bunkbeds on each floor and currently about 20 detainees on each floor. There is a common area shared by both floors of inmates as well as common showers and restrooms. See Resp. Ex. 12, 13, & 15.
IV. Current Conditions at SCHOC There are currently no reported cases of detainees or staff
at SCHOC who have tested positive for COVID-19 but testing has
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been limited. Test results for the six staff members and seven inmates tested as of May 8 were negative.28
Over the last six weeks, SCHOC has instituted a variety of measures to prevent the introduction of COVID-19 into the facility by following, to the extent practicable, the recommendations contained in the ICE Enforcement and Removal guidelines and CDC guidance specific to correctional and detention facilities. See Resp. Ex. 5 (CDC Interim Guidance) & 19 (ICE PRR).
To prevent the introduction of COVID-19, SCHOC has suspended all in-person inmate visitation privileges. Clergy and attorneys, however, still conduct in-person visits. Staff members must undergo screening before entering work each day and are required to wear gloves and a mask except when eating.
SCHOC has also taken steps to limit interaction between inmates at the jail. SCHOC has instituted a lockdown policy which means inmates living in units with cells are locked inside their cells for 22 hours a day. Given the size and layout of the individual cells on most of the units, detainees are within
28 Several weeks ago, a local deputy sheriff who does contract work for SCHOC transporting inmates, tested positive for the virus. At or around the time that the deputy sheriff tested positive he had had contact with three inmates. Those inmates were never tested for COVID-19. On May 8, the court learned that an inmate had been tested on May 7. The “rapid” test was negative for COVID-19. (Doc. no. 79).
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three feet of one another while sleeping and likely within six feet of one another during waking hours.
Inmates are released for “tier time” for two one-hour periods per day. In the larger units, approximately 12 inmates are released at one time but there is sometimes overlap between groups when detainees are reluctant to return to their cells. Lockdown looks different on Unit J because of its barracks-style layout. When one floor of Unit J is on lockdown, those detainees may not use the common area or showers and cannot interact with individuals on the other floor. But they are not required to stay in their bunks and often interact with the other detainees housed on that floor. When released for tier time, the detainees in the upper and lower floors are permitted to use the common areas at the same time. When inmates are out for tier time, they may use the common areas to eat (if it coincides with mealtime), shower, recreate, use tablets, or do laundry. They are not required to distance themselves from one another and often interact in close proximity.
Superintendent Brackett testified that he has directed inmates who are employed as cleaning staff to clean the common areas in between the release periods and to use CDC-approved disinfectant cleaning agents. Based on several of the detainees’ testimony, however, cleaning of common areas is not
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occurring consistently between release periods and does not always involve disinfecting cleaning agents. Mr. Rosales and Mr. Gomes testified that the common restrooms and showers are cleaned only once a day and have “dirty, filthy curtains” and mold. Doc. no. 116 at page 69.
At mealtimes, detainees interact more closely with one another. Some detainees work in the kitchen and interact with individuals from other units. Detainees also deliver food to units. Mr. Gomes testified that as of May 1, individuals transporting food did not wear masks or gloves. And while detainees on lockdown during mealtime eat inside their cells, detainees on tier time during meals may eat close to one another in the common area. In Unit J, detainees line up near one another to receive their meals from a food cart.
SCHOC has endeavored to make information about the virus and preventative measures available to detainees. Superintendent Brackett testified that every detainee has access to a tablet for recreational or educational use that contains a free health section with information in English and Spanish about COVID-19—how it spreads, symptoms of the virus, and some information about social distancing. See Resp. Exs. 8-10.29
29 These informational guides include some pictures as well as text, to aid in communicating the information to inmates who are not literate in English or Spanish.
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Superintendent Brackett also testified that when the lockdown policy was first initiated, correctional officers visited each cell to explain that the lockdown was a precautionary measure related to the virus, not a disciplinary punishment. More recently, SCHOC posted flyers in all units instructing the inmates to sleep in their bunk beds head to toe (with one inmate’s head above the other inmate’s feet) to keep 6 feet of separation while sleeping. See Resp. Ex. 3.
Beginning on March 23, and every two weeks thereafter, medical personnel at SCHOC individually screened everyone at the facility to check for signs or symptoms of COVID-19 and allow inmates an opportunity to ask questions about the virus.
SCHOC has also strived to provide inmates with access to personal hygiene products, cleaning supplies, and personal protective equipment to the extent possible. As of now, all inmates are issued a weekly personal hygiene kit that includes soap, shampoo, and deodorant and have access to cleaning supplies upon request. If inmates live in units with laundry in the common areas, they can launder clothes and bedsheets as often as desired. If laundry is not available to them in their unit, they can participate in the laundry exchange that occurs three times weekly.
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SCHOC has recently made masks available to every inmate. Initially, SCHOC did not have enough masks to provide one to every detainee; however, SCHOC acquired 60,000 masks the week of April 27. As of April 29 or 30, SCHOC issued every detainee and inmate a surgical mask made of 3-ply cloth. Superintendent Brackett testified that detainees are encouraged to wear masks, but he does not mandate that all detainees wear masks.
SCHOC has also begun to implement more drastic quarantine measures for incoming inmates and those who have traveled outside the facility. Beginning on April 25, all new inmates are booked and then quarantined for 14 days in either Unit F (for men) or Unit A (for women) before being transferred to one of the other housing units. See Doc. no. 31 at 3. As of May 1, there were no new female inmates being quarantined in Unit A and there were 16 male inmates being quarantined in Unit F. Unit F has 12 cells, each with a bunkbed, desk, sink, and toilet. See Resp. Exs. 16 & 17. There is also a common area with tables for eating or recreating and common showers and restrooms. When possible, only one inmate is housed in each cell in Unit F; however, inmates are doubled up when necessary. SCHOC tries to house inmates together who arrived at or around the same time and/or who were transported to the SCHOC from the same location. If an inmate leaves the facility for any reason, such as a
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medical appointment, he is quarantined for 14 days upon his return. Doc. no. 40.
Unit F also houses the “airlift” civil immigration detainees who are subject to final removal orders. ICE brings in these airlift detainees on Thursdays or Fridays from other ICE detention facilities30 and then sends them out on flights the following Monday or Tuesday from the airport at Pease Air National Guard Base in Portsmouth, New Hampshire.31 Because of the short duration of their stay and their transitory character, the airlift detainees stay quarantined in Unit F for their whole stay.
Like detainees in other units, detainees in Unit F are kept on lockdown in their cells for approximately 22 hours a day. Detainees in Unit F are released one cell at a time for tier time when they can engage in the same activities as described above for the other units. In between the sessions of tier
30 Prior to May 1, detainees from Bristol and Wyatt were brought to SCHOC prior to their deportation. Doc. no. 47 at 13. On May 1, Superintendent Brackett testified that moving forward, detainees from facilities with known COVID cases, such as Bristol and Wyatt, would be brought directly to Pease and would not enter the SCHOC.
31 Many of these detainees are transported to detention centers in Louisiana before they are finally deported. Doc. no. 47 at 24. The virus has already infiltrated a number of these facilities: out of 425 ICE detainees across five different detention facilities, 80 had tested positive for the virus as of April 29. Doc. no. 47 at 24.
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time, an inmate is tasked with cleaning the common areas before the next inmates are released.
SCHOC’s efforts to prevent the introduction of the virus into SCHOC and combat its spread are not insignificant. But the measures have not been implemented flawlessly. And structural and operational issues make infection control practices challenging. The facility is not completely isolated from outside sources of infection, some inmates may choose to disregard protective measures, those who want to distance themselves cannot due to the size and layout of cells, and alcohol-based hand-sanitizer is not available due to the possibility of intentional ingestion and misuse. It is undisputed that it is virtually impossible under the current conditions for inmates to practice social distancing. Doc. no. 47 at 15, 17, 19, 23.
According to Superintendent Brackett, staff are regularly moved from one unit to another for reasons having to do with “security.” Brackett confirmed that SCHOC policy regarding staff movement is “substantially unchanged between before and after the pandemic.” Doc. no. 116 at 30. It appears SCHOC has made no effort to reduce the number of inmates each staff member is exposed to—a practice that directly contradicts both the CDC’s Interim Guidance and the CDC Detention Report which
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encourages facilities to “[a]ssign staff members to consistent locations” in order to prevent introduction of COVID-19 into the facility. See Resp. Ex. 5; CDC Detention Report. Assigning staff to the same units would obviously help the SCHOC contain the spread of the virus and better enable effective tracing and isolation in the foreseeable event that a staff member were to test positive.
There also appears to be a lack of effective education and communication between SCHOC staff and detainees about the available preventative measures. For example, all three detainees testified that they had received a mask but had not been given any instruction on when or how to wear the mask and did not know whether additional masks would be available. None of the detainees were wearing masks during their testimony and all testified that by and large none of the inmates or detainees were wearing masks on a regular basis. Similarly, regarding the head-to-toe flyers, both Mr. Gomes and Mr. Chavez testified that the flyers went up without explanation and they were never told why they should follow that guidance. There also appears to be a lack of education about how to learn more about the virus. Although Superintendent Brackett testified credibly that information about COVID-19 is available on the inmates’ tablets, detainees testified that they were not aware that there was any
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COVID-19 related information available on the tablets. Accordingly, it is unclear whether the detainees fail to maintain social distance in spaces where they can by choice or due to a lack of education about the need for social distancing and the dangers of the virus.
Most importantly, there is no evidence that SCHOC is taking special precautions regarding detainees who are particularly vulnerable to COVID-19 due to underlying medical conditions. Superintendent Brackett testified that detainees with chronic illnesses are monitored by a chronic care nurse and a supervising physician (who is not on site) and that the facility has a contract with a local hospital for when emergency or critical care is needed. During the May 1 hearing, Superintendent Brackett’s testimony suggested that SCHOC had yet to review detainee medical files to identify detainees at higher risk from COVID-19. At the end of the hearing, counsel for the respondents represented that Superintendent Brackett planned to think about additional steps he could take to provide greater protection to medically vulnerable individuals. On May 4, counsel for respondents informed the court that SCHOC had reviewed detainee files but determined that no detainees had medical conditions that put them at high-risk. There is no evidence that SCHOC has made any effort to isolate vulnerable
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detainees or provide them with extra personal protective equipment or cleaning supplies.
LEGAL STANDARD “[A] district court entertaining a petition for habeas corpus has inherent power to release the petitioner pending determination of the merits.” Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972) (per curiam); see also Mapp, 241 F.3d at 230. In the First Circuit, a court may grant bail to a habeas petitioner if: (1) the petitioner has a clear case on the law and facts, or (2) exceptional circumstances are present and the petitioner demonstrates a substantial claim of constitutional error. Glynn, 470 F.2d at 98; Bader, 2003 WL 163171, at *4. As the court held in a previous order (doc. no. 34), the latter test applies in this case because the COVID-19 pandemic presents an exceptional health risk to detainees. Therefore, a petitioner is entitled to a bail hearing if he demonstrates a “substantial claim of constitutional error,” and that “extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.” Doc. no. 34 (citing Mapp, 241 F.3d 230). A habeas petitioner demonstrates that he has a substantial claim of constitutional error by showing he is likely to succeed
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on the merits of his habeas petition. See, e.g., Leslie v. Holder, 865 F. Supp. 2d 627, 639 (M.D. Pa. 2012) (internal quotation marks omitted) (to be released on bail pending a merits determination, the habeas petition must “present merits that are more than slightly in petitioner’s favor”); Mapp, 241 F.3d at 230 (substantial claim raised where petitioner challenged a deportation order “the propriety of which is clearly open to question”). At the bail hearing, respondents have the burden to prove by clear and convincing evidence that the petitioner is either a danger to the public or a flight risk. See Hernandez-Lara v. Immigration & Customs Enf't, Acting Dir., No. 19-CV-394-LM, 2019 WL 3340697, at *7 (D.N.H. July 25, 2019). If the court grants bail, the court imposes appropriate requirements and safeguards.
ANALYSIS Petitioners allege respondents are violating their due process rights under the Fifth Amendment to the United States Constitution by detaining them in conditions that put them at substantial risk of harm due to COVID-19. Doc. no. 5 at ¶¶ 73, 90. The Due Process Clause of the Fifth Amendment forbids the government from depriving a person of life, liberty, or property without due process of law. U.S. Const. amend. V. The
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protection applies to “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
Constitutional protections for individuals confined by the state, whether civilly or criminally, include the right to reasonable safety and medical care. See Estelle v. Gamble, 429 U.S. 97, 103 (1976); see also Youngberg v. Romeo, 457 U.S. 307, 315 (1982) (“[T]he right to personal security constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause.” (citation omitted)). “The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989). The State’s duty to protect arises “from the limitation which it has imposed on [the detainee’s] freedom to act on his own behalf.” Id.; see also Estelle, 429 U.S. at 103 (“An inmate must rely on prison
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authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.”).
The duties owed under the Due Process Clause to those who are detained civilly are at least as extensive as those owed under the Eighth Amendment to convicted inmates. “If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine [civil detainees]—who may not be punished at all—in unsafe conditions.” Youngberg, 457 U.S. at 315; see also Bell v. Wolfish, 441 U.S. 520, 545 (1979) (pretrial detainees “retain at least those constitutional rights that . . . are enjoyed by convicted prisoners”). Individuals who have been civilly detained “are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg, 457 U.S. at 321-22.
Neither the Supreme Court, nor the First Circuit, has explicitly plotted the boundaries of the government’s duty to protect the health and safety of civil detainees. See MirandaRivera v. Toledo-Davila, 813 F.3d 64, 74 (1st Cir. 2016). However, it is clear the duty “extend[s] at least as far as the protection that the Eighth Amendment gives to a convicted
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prisoner.” Id. (internal quotation marks omitted and emphasis added).
A prison official violates the Eighth Amendment if (1) the alleged deprivation of medical care is objectively “sufficiently serious”; and 2) the prison official has a “sufficiently culpable state of mind” that shows “deliberate indifference to inmate health or safety.” Leite v. Bergeron, 911 F.3d 47, 52 (1st Cir. 2018) (internal quotation marks omitted); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994). An act or omission resulting in the denial of “‘the minimal civilized measure of life’s necessities’” satisfies the objective component of that test under the Eighth Amendment. Farmer, 511 U.S. at 834 (citations omitted). The objective component may be established by allegations regarding an unmet serious medical need “that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Miranda-Rivera, 813 F.3d at 74.
The Eighth Amendment protects an inmate from being held in conditions that cause both current and future harm. Helling v. McKinney, 509 U.S. 25, 33 (1993). Accordingly, an inmate could “successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery” and a prison
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official may not be “deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.” Id. The Constitution offers a remedy even if an inmate does not allege “that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed.” Id. (observing “[i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to them”); see also Hutto v. Finney, 437 U.S. 678, 682 (1978).
With respect to the subjective component of the Eighth Amendment standard, a defendant is deliberately indifferent if he subjectively “knows of and disregards an excessive risk to inmate health or safety.” Leite, 911 F.3d at 52 (internal quotation marks omitted). To show the defendant had a culpable state of mind, the plaintiff “must provide evidence that the defendant had actual knowledge of impending harm, easily preventable, and yet failed to take the steps that would have easily prevented that harm.” Id. (internal quotation marks omitted). “Deliberate indifference entails something more than mere negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge
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that harm will result.” Id. (internal quotation marks and brackets omitted). “‘[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.’” Kingsley v. Hendrickson, 576 U.S. 389, ___, 135 S. Ct. 2466, 2472, (2015) (citation omitted).
In Kingsley, the United States Supreme Court considered the circumstances and sources of rights of pre-trial and postconviction detainees in contrasting the “requisite state of mind” for their excessive force claims. Id. To establish a violation of the Cruel and Unusual Punishment Clause, a convicted inmate must show that a use of force was applied “maliciously and sadistically to cause harm,” and not “in a good-faith effort to maintain or restore discipline.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986). The Court in Kingsley, 135 S. Ct. at 2475, held that a pre-trial detainee asserting a claim under the Fourteenth Amendment need only show that the “force purposely or knowingly used against him was objectively unreasonable.” Id. at 2473. Factors influencing the Court’s decision included the different language of the two Clauses and the “most important[]” fact that “pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically.’” Id.
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The Supreme Court has not issued any decision since
Kingsley directly addressing whether the purposeful or knowing,
objective unreasonableness standard applied in Kingsley also
applies to claims brought by pretrial detainees about government
acts or omissions that deny them medical care or expose them to
substantial health and safety risks. There is a circuit split
on that question.32 See Estate of Vallina v. Cty. of Teller
Sheriff’s Office, 757 F. App’x 643, 646 (10th Cir. 2018) (noting
that Second, Seventh, and Ninth Circuits have “adopted an
objective test” requiring “reckless disregard,” while the Fifth,
Eighth, and Eleventh Circuits have held that Kingsley does not
extend to detainee medical care claims); see also Banks v.
Booth, No. CV 20-849(CKK), 2020 WL 1914896, at *6 (D.D.C. Apr.
32 Compare Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018); Darnell v. Pineiro, 849 F.3d 17, 34-35 (2d Cir. 2017); Castro v. Cty. of L.A., 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc), with Whitney v. City of St. Louis, 887 F.3d 857, 860 n.4 (8th Cir. 2018); Dang ex rel. Dang v. Sheriff, Seminole Cty., 871 F.3d 1272, 1279 n.2 (11th Cir. 2017); Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420 (5th Cir. 2017) (following circuit precedent). See also See also McCowan v. Morales, 945 F.3d 1276, 1291 (10th Cir. 2019) (declining to decide whether Kingsley has “eliminated the subjective inquiry previously applicable to deliberate indifference claims brought by pretrial detainees,” while noting that the “very terminology” of deliberate indifference “seems to require both a subjective and an objective test”). But see Richmond v. Huq, 885 F.3d 928, 938 n.3 (6th Cir. 2018) (there is “serious doubt,” postKingsley, whether plaintiff “need even show that the individual defendant-officials were subjectively aware of her serious medical conditions and nonetheless wantonly disregarded them”).
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19, 2020) (concluding, based “on the pertinent reasoning of Kingsley and the persuasive authority of other courts” that pretrial detainees “do not need to show deliberate indifference in order to state a due process claim for inadequate conditions of confinement”).
Nearly all of the First Circuit cases that have looked to the Eighth Amendment for guidance in evaluating pretrial detainee due process deliberate indifference claims predate Kingsley. See, e.g., Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)); Gaudreault v. Mun’y of Salem, 923 F.2d 203, 208 (1st Cir. 1990) (same). Only twice since Kingsley has the First Circuit issued an opinion concerning a pretrial detainee medical care claim, and in both cases, the court applied the Eighth Amendment standard. See Zingg v. Groblewski, 907 F.3d 630, 634-35 (1st Cir. 2018); Miranda-Rivera, 813 F.3d at 74. But the First Circuit’s approach to the deliberate indifference claims in those cases does not appear to foreclose a ruling that Kingsley has changed the standard. See Zingg, 907 F.3d at 637 (applying deliberate indifference standard to pretrial detainee plaintiff’s “Eighth Amendment claim” without addressing whether analysis or result would have been different if that claim had been litigated as “due process” claim);
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Miranda-Rivera, 813 F.3d at 74 (evidence of officer’s deliberate indifference, sufficient to satisfy Eighth Amendment, also satisfies mens rea and “‘conscience shocking’” elements of substantive due process violation (citations omitted)).
In the absence of binding, post-Kingsley authority, district courts within the First Circuit do not agree whether the subjective prong of a deliberate indifference claim still applies to due process claims brought by civil detainees. Some courts have continued to analyze deliberate indifference claims without considering whether Kingsley altered the applicable standard. See Henry v. Hodoson, No. 16-CV-11606-RGS, 2018 WL 6045250, at *4 (D. Mass. Nov. 19, 2018). One court reasoned there was “much to be said” for extending Kingsley to pretrial detainee due process claims but declined to do so given preKingsley First Circuit precedent33 and the fact that “whether Kingsley will ultimately be extended by the First Circuit to encompass conditions of confinement claims has no bearing on the
33 See Surprenant v. Rivas, 424 F.3d 5, 18 (1st Cir. 2005) (applying Eighth Amendment standard to pretrial detainee’s claims, after noting that “the parameters” of the liberty interests implicated by pretrial detainee’s conditions of confinement claims “are coextensive with those of the Eighth Amendment’s prohibition against cruel and unusual punishment”); Burrell v. Hampshire Cty., 307 F.3d 1, 7 (1st Cir. 2002) (“Pretrial detainees are protected under the Fourteenth Amendment Due Process Clause . . . ; however, the standard to be applied is the same as that used in Eighth Amendment cases.”)
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outcome.” See Couchon v. Cousins, No. CV 17-10965-RGS, 2018 WL 4189694, at *6 (D. Mass. Aug. 31, 2018); see also Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 2404923, at *8 (D. Mass. May 12, 2020) (“Savino II”) (acknowledging other circuits had adopted an objective due process test for civil detainees after Kingsley but applying the traditional Eighth Amendment test in light of post-Kingsley First Circuit precedent and finding detainees likely to succeed under the more demanding test). Magistrate Judge Nivison has consistently held that postKingsley, an objective standard is sufficient to establish defendant liability for deliberate indifference claims brought by pretrial detainees. See, e.g., Salcedo v. King, No. 2:18-CV00092-DBH, 2018 WL 1737941, at *2 (D. Me. Apr. 11, 2018) (“a condition of confinement claim against a particular individual defendant often will include an additional, subjective component (proof of deliberate indifference) in order to establish that particular defendant's liability,” but “where the conduct in question is ‘purposefully or knowingly’ applied, satisfaction of an objective standard is sufficient to establish liability” (citing Kingsley, 135 S. Ct. at 2472)), R&R adopted, No. 2:18CV-92-DBH, 2018 WL 2123610 (D. Me. May 8, 2018), and Dixon v. Groeger, No. 2:16-CV-00178-NT, 2017 WL 3298675, at *3 (D. Me.
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Aug. 2, 2017) (same), R&R adopted, No. 2:16-CV-178-NT, 2017 WL 5973367 (D. Me. Dec. 1, 2017).
Most recently, in a case in which three ICE detainees at Wyatt Detention Center brought habeas corpus petitions alleging that their conditions of confinement violated their due process rights, Judge Smith accepted both parties’ agreement that “objective unreasonableness” was the appropriate post-Kingsley standard and analyzed the case through an “objective unreasonableness prism.” Medeiros v. Martin, No. CV 20-178 WES, 2020 WL 2104897, at *4, n.1 (D.R.I. May 1, 2020).
Based on the pertinent reasoning of Kingsley and the persuasive authority of other courts, it is likely that civil detainees no longer need to show subjective deliberate indifference in order to state a due process claim for inadequate conditions of confinement. However, whether the court analyzes petitioners’ due process claim through a traditional Eighth Amendment deliberate indifference standard— which includes a subjective prong—or interprets Kingsley as having altered the standard, the result is the same. Detainees who have medical conditions that place them at higher risk for serious illness from exposure to COVID-19 have demonstrated that they are likely to succeed on the merits of their due process claim. It is a close call whether lower-risk detainees are
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likely to succeed under either standard given the lack of COVID19 at the facility and the steps SCHOC has taken to reduce the risk. Therefore, because the outcome is the same under either standard, at this preliminary phase of the case, the court declines to resolve whether Kingsley changed the applicable standard for due process claims brought by civil detainees.
I. Detainees with high-risk conditions It cannot be disputed that COVID-19 poses an objectively
serious health risk to detainees whose age or health conditions place them at higher risk for serious illness or death. As already stated in the court’s May 4, 2020 order, (doc. no. 52) both the CDC and ICE recognize that certain categories of individuals are at “higher-risk for serious illness from COVID19.” CDC Higher Risk; Resp. Ex. 19.
The ICE PRR states that detention facilities “must” identify detainees who meet the “CDC’s identified populations potentially being at higher-risk for serious illness from COVID19.” Resp. Ex. 19.34 The ICE PPR incorporates an April 4 email from Peter Berg, an Assistant Director of ERO Field
34 The ICE PRR also requires detention facilities to notify the local ERO Field Office Director and Field Medical Coordinator “as soon as practicable, but in no case more than 12 hours” after identifying a high-risk detainee using the subject line “Notification of COVID-19 High Risk Detainee.”
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Operations informing Field Office Directors that the ERO had
expanded on the CDC’s high-risk categories. Resp. Ex. 19, ICE
PRR Attachment K (“ERO Directive”). The e-mail directs Field
Office Directors to identify detainees with the following
conditions as “potentially being at higher risk for COVID-19”:
• Pregnant detainees or those having delivered in the last two weeks
• Detainees over 60 years old • Detainees of any age having chronic illnesses which would
make them immune-compromised, including but not limited to: o Blood Disorders o Chronic Kidney Disease o Compromised immune system (e.g., ongoing treatment such as chemotherapy or radiation, received an organ or bone marrow transplant, taking high doses of corticosteroids or other immunosuppressant medications) o Endocrine disorders o Metabolic disorders o Heart disease o Lung disease o Neurological and neurologic and neurodevelopment conditions
Id. (emphasis added). The ERO Directive states that Field
Office Directors should identify high-risk cases and review them
“to determine whether continued detention remains appropriate in
light of the COVID-19 pandemic.” Id. The directive states that
the “presence of one of the factors listed above should be
considered a significant discretionary factor weighing in favor
of release.” Id. (emphasis added).
In light of ERO’s Directive, the CDC Higher Risk guidance,
and a weight of authority from courts throughout the country,
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the court concludes that COVID-19 poses an objectively serious health risk for detainees with high-risk conditions. See, e.g., Frazier v. Kelley, No. 4:20-CV-00434-K, 2020 WL 2110896, at *6 (E.D. Ark. May 4, 2020); Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *9 (D. Md. Apr. 3, 2020).
As to the subjective prong, it is undisputed that respondents received the ERO’s PRR and CDC guidance and were aware of its requirements. Superintendent Brackett testified that he received the ICE PRR on April 10 and reviews it “very often.” Doc. no. 115 at 96-97. He also testified that he considers CDC guidance about management of COVID-19 in correctional and detention facilities to be “his Bible” and that he reviews it daily. The CDC guidance states in multiple places that special accommodations should be taken for individuals who “are at higher risk of severe illness from COVID-19” and provides links to the list of CDC high-risk categories throughout. Resp. Ex. 5, CDC Interim Guidance, at 3, 16, 20, and 23. Therefore, there is no dispute that respondents had actual knowledge that COVID-19 presents a substantial risk of serious harm to high-risk detainees. The question is whether respondents acted or failed to act in a manner that manifests deliberate indifference by disregarding the risk and “failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847.
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Respondents failed to act. As of May 1, almost a month after the April 4 ERO e-mail, respondents had yet to identify any high-risk detainees. At a May 4 hearing, respondents’ counsel represented that SCHOC had conducted a review of detainee cases but reached the dubious conclusion that no detainees fell within a high-risk category. Yet, when pressed, counsel conceded that one detainee was over 65 and a “handful” were over 60; therefore, SCHOC should have immediately been able to classify these detainees as high-risk pursuant to CDC and ERO guidance. Respondents have put forward no evidence or explanation for this failure to identify obvious high-risk cases. And it has been demonstrated that this review and identification can be completed expeditiously. After petitioners received medical records disclosed to them in this case pursuant to an April 24, 2020 protective order, see doc. no. 33, they identified 19 detainees whose medical records document high-risk conditions — a task they appear to have completed over one weekend. See Doc. no. 52. And when respondents’ own medical expert reviewed that list, he characterized one detainee had become a “ticking time bomb” after he stopped taking his medication. See id. Respondents released the detainee described as a “ticking time bomb,” and agreed to release an additional detainee on conditions, but
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argued that none of the remaining 17 detainees on petitioners’ list should be classified as high-risk, not even the detainees whose advanced age plainly put them in the high-risk category.
The court is deeply troubled by respondents’ failure to identify high-risk detainees until forced to do so by this lawsuit. It was only after the court ordered bail hearings for high-risk detainees, and petitioners reviewed detainee medical files and put 19 of them on a high-risk list, that respondents even became aware of the “ticking time bomb” in their midst.
To this point, there remains no evidence that respondents have conducted or will conduct their own review of all current or incoming detainees to identify high-risk cases and reassess custody as directed by the ERO. Nor is there any evidence that SCHOC has taken steps to alleviate the known substantial risk that COVID-19 presents to individuals who fall within high-risk categories due to their age or medical conditions. For example, there is no evidence that petitioners have treated all incoming detainees as if they were at a heightened risk of serious COVID19 complications, until triaged as to their risk level. And there is no evidence that SCHOC is implementing or will implement additional measures to protect the now known high-risk detainees who remain in SCHOC custody.
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To be sure, the record demonstrates that respondents have taken measures to reduce the risk of COVID-19’s introduction and transmission at the SCHOC, steps that this court commended in its May 1 ruling from the bench and in written orders in this case. However, these measures still do not allow vulnerable inmates to socially distance and “do nothing to alleviate the specific, serious, and unmet medical needs” of high-risk detainees. Coronel v. Decker, No. 20-CV-2472 (AJN), 2020 WL 1487274, at *5 (S.D.N.Y. Mar. 27, 2020) (emphasis in original) (finding high-risk detainees likely to succeed in deliberate indifference claim because government had taken no preventative action to protect “especially vulnerable detainees”).35
Therefore, as previously stated during the May 1 hearing and in the May 4 order (doc. no. 52), the court concludes that detainees who have medical conditions which place them at highrisk for severe illness from COVID-19 have demonstrated a likelihood of success on their due process deliberate
35 The court notes that the issue in this case is far narrower than the issue in Money v. Pritzker, No. 20-CV-2093, 2020 WL 1820660, at *18 (N.D. Ill. Apr. 10, 2020). In Money, there was evidence that state correctional facility officials had developed and were implementing a plan for “individualized decisions on release through a panoply of vehicles guided by administrative discretion.” Id. Here, by contrast, respondents failed to take any steps to identify and implement additional measures to protect those at highest risk in their custody.
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indifference claim. In so holding, the court joins many courts that have found high-risk inmates are likely to prevail on their due process deliberate indifference claims under either a traditional Eighth Amendment analysis or a deliberate indifference analysis that applied a standard satisfied by proof of mens rea short of subjective knowledge. See, e.g., DIANTHE MARTINEZ-BROOKS et al., Plaintiffs, v. D. EASTER & MICHAEL CARVAJAL, Defendants., No. 3:20-CV-00569 (MPS), 2020 WL 2405350, at *22 (D. Conn. May 12, 2020) (finding inmates likely to succeed under Eighth Amendment deliberate indifference standard because facility had failed to transfer medically vulnerable inmates to home confinement in meaningful numbers and social distancing remained impossible); Savino II, 2020 WL 2404923, at *7-*10 (concluding detainees were likely to succeed under Eighth Amendment standard because government had “steadfastly objected” to releasing detainees on bail; suggested social distancing was unnecessary; and their prevention strategy lacked testing and contact tracing); Carranza v. Reams, No. 20-CV-00977-PAB, 2020 WL 2320174, at *10 (D. Colo. May 11, 2020) (finding high-risk inmates likely to succeed under Eighth Amendment deliberate indifference standard when defendant knew high-risk inmates were vulnerable to COVID-19 but did not order medical staff to identify vulnerable inmates and mitigation efforts with regard
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to high-risk inmates were not reasonable); Fraihat v. ICE, No. EDCV191546JGBSHKX, 2020 WL 1932570, at *24 (C.D. Cal. Apr. 20, 2020) (concluding ICE detainees were likely to succeed in their deliberate indifference claim under post-Kingsley recklessness standard due to facilities’ “month-long failure to quickly identify individuals most at risk of COVID-19 complications and require specific protection”); Banks, 2020 WL 1914896, at *11 (finding likelihood of success under both the Eighth Amendment and post-Kingsley standards); Fofana v. Albence, No. 20-10869, 2020 WL 1873307, at *8 (E.D. Mich. Apr. 15, 2020) (finding highrisk ICE detainee had satisfied the subjective prong of the Eighth Amendment deliberate indifference standard); Savino I, 2020 WL 1703844, at *7 (ordering bail hearings for both highand lower-risk ICE detainees); Coronel, 2020 WL 1487274, at *5*6 (finding government’s failure to take any action to protect high-risk inmates was “insufficient to satisfy Constitutional obligations”).
Having held that high-risk petitioners are likely to succeed on the merits of their deliberate indifference claim, the court concludes that the risk that COVID-19 presents to highrisk detainees is an extraordinary circumstance that justifies a bail hearing. “Severe health issues have been the prototypical but rare case of extraordinary circumstances that justify
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release pending adjudication of habeas.” Coronel, 2020 WL 1487274, at *9 (collecting cases). If Petitioners whose medical conditions place them at a higher risk of severe illness, or death, from COVID-19 remain detained, they face a significant risk that they would contract COVID-19—the very outcome they seek to avoid. Release is therefore necessary to make the habeas remedy effective. See Barbecho v. Decker, No. 20-CV-2821 (AJN), 2020 WL 1876328, at *8 (S.D.N.Y. Apr. 15, 2020); see also Calderon Jimenez v. Wolf, No. 18-cv-10225 (MLW), Dkt. No. 507-1, at 3–4 (D. Mass. Mar. 26, 2020) (granting release pending a merits determination where the risk of a COVID-19 outbreak in the relevant prison constituted an extraordinary circumstance). Accordingly, the court began conducting bail hearings for highrisk detainees on May 4, 2020 and those hearings are ongoing.
During the course of these bail hearings, the court learned that SCHOC’s review of detainee medical files had failed to identify high-risk detainees with conditions including asthma, COPD, obesity, hypertension, heart palpitations, diabetes, poorly healed gunshot wounds, and myasthenia gravis. The court also learned that respondents were interpreting CDC and ERO guidance through a troubling, narrow, and mechanistic lens.
For example, in spite of a notation on one detainees’ SCHOC medical record that hypertension is a “silent killer,”
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respondents asserted at the bail hearings that detainees with
hypertension are not “high-risk” because hypertension is not
explicitly included within the CDC’s definition of “serious
heart conditions.”36 See CDC Higher Risk.37 They also contend
that the ERO does not recognize hypertension as a high-risk
condition, even though it explicitly “expand[s]” on the CDC
list—for example by setting the high-risk age as 60 instead of
65—and states that detainees with “heart disease” as opposed to
the CDC’s “serious heart conditions” are high-risk. ERO
Directive; Resp. Ex. 19. Respondents argue that even though
hypertension is a form of “heart disease,” it is not a “chronic
illness which would make [a detainee] immune-compromised”;
therefore, a detainee with hypertension is not high-risk. Id.
Respondents appear to base their assertions about hypertension
36 This same detainee’s medical records indicated that the SCHOC nurse considered him a “high risk for cardiac complication/hypertension due to age, gender, race and history.” The nurse also noted that he “has had heart surgery in the past and he experiences palpitations on a regular basis.” Respondents ultimately chose not to contest that the detainee was high risk on account of the detainee’s heart palpitations. But respondents reiterated at the hearing that, in their view, the detainee’s hypertension did not make him high-risk. The court is troubled by respondents’ failure to recognize that comorbidities work in concert to render certain individuals more vulnerable to complications from COVID-19.
37 The CDC Higher Risk website states “serious heart conditions” include “heart failures, coronary artery disease, congenital heart disease, cardiomyopathies, and pulmonary hypertension.”
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on the opinion of a family medicine physician assistant; they
provide no evidence from cardiologists, COVID-19 specialists, or
medical journals.
Meanwhile, multiple medical studies confirm that
hypertension is associated with increased mortality from COVID-
19.38 And an initial review of COVID-19 deaths in New York State
showed that hypertension was the leading comorbidity: 55.4% of
the people who died with COVID-19 had hypertension.39
At this time, the relationship between hypertension and
elevated risk from COVID-19 appears not to be fully understood—
38 See, e.g., Kearney PM, Whelton M, Reynolds K, et al. Global burden of hypertension: analysis of worldwide data. Lancet 2005; 365 (9455):217-2 (finding that COVID had "an overall case fatality rate of 2.3 % (1,023 of 44,672 confirmed cases), but 6.0% for people with hypertension"); American College of Cardiology, COVID-19 Clinical Guidance for the Cardiovascular Care Team, (https://www.acc.org/~/media/NonClinical/Files-PDFs-Excel-MS-Word-etc/2020/02/S20028-ACCClinical-Bulletin-Coronavirus.pdf), March 6, 2020 (observing that case fatality rates for comorbid patents such at hypertension are materially higher than the average population); Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 24, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/whochina-joint-mission-on-covid-19-final-report.pdf. (finding that “[i]ndividuals at highest risk for severe disease and death include people ... with underlying conditions such as hypertension [and] diabetes”).
39 Richard Franki, Comorbidities the rule in New York’s COVID-19 deaths, https://www.the-hospitalist.org/hospitalist/ article/220457/coronavirus-updates/comorbidities-rule-new-yorkscovid-19-deaths (published April 8, 2020) (observing the prevalence of high blood pressures in the overall adult population is estimated at 45%).
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some experts say that high blood pressure alone is not a risk factor, but that it may be a risk factor when combined with another underlying health condition.40 Other experts believe that COVID-19 strains the heart, making people with hypertension more vulnerable to the disease.41
However, as the CDC website explicitly recognizes, “COVID19 is a new disease and there is limited information regarding risk factors for severe disease.” CDC Higher Risk. And the ERO Directive stated that it was “expanding” on the CDC high-risk categories and that its bulleted list of high risk conditions was nonexclusive. Resp. Ex. 19; ERO Directive. Against this medical backdrop, and with due consideration for the heightened danger COVID-19 presents within detention facilities, numerous courts have recognized that hypertension is an objectively
40 See Ernesto L Schiffrin, et al, Hypertension and COVID-19, American Journal of Hypertension, Volume 33, Issue 5, May 2020, Pages 373–374, https://doi.org/10.1093/ajh/hpaa057 (published April 6, 2020); Rob Stein, High Blood Pressure Not Seen As Major Independent Risk For COVID-19, National Public Radio (Mar. 20, 2020), https://www.npr.org/sections/coronavirus-liveupdates/2020/03/20/818986656/high-blood-pressure-not-seen-asmajor-independent-risk-for-covid-19.
41 See Anna Medaris Miller et al., 10 common health conditions that may increase risk of death from the coronavirus, including diabetes and heart disease, Business Insider, (Mar. 23, 2020), https://www.businessinsider.com/hypertensiondiabetes-conditions-that-make-coronavirus-more-deadly-2020-3 (noting that 76% of people in Italy who died from COVID-19 had hypertension).
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serious medical condition that places individuals at a “high probability of developing severe disease from COVID-19.” Kevin M.A. v. Decker , No. CV 20-4593 (KM), 2020 WL 2092791, at *3 (D.N.J. May 1, 2020), see also, e.g., Coreas, 2020 WL 1663133, at *11; United States v. Rodriguez, No. 2:03-CR-00271-AB-1, 2020 WL 1627331, at *7 (E.D. Pa. Apr. 1, 2020). But see Betancourt Barco v. Price, No. 2:20-CV-350-WJ-CG, 2020 WL 2099890, at *8 (D.N.M. May 1, 2020) (concluding that hypertension does not make a detainee medically vulnerable to COVID-19).
The court has indicated in oral and written orders that it finds that hypertension is a condition that places individuals at higher-risk for severe disease and death from COVID-19. Without court intervention, however, respondents would have continued to give hypertension no weight in a high-risk analysis. “Where elasticity is vital, they are rigid; where life hangs upon a carefully drawn line, they opt for nearblanket incarceration. That is evidence of deliberate indifference.” Savino II, 2020 WL 2404923, at *9. Respondents’ steadfast commitment to an exceedingly narrow interpretation of detainee medical records in the context of this habeas litigation, a case about alleged deliberate indifference to medical needs, is disturbing.
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II. Detainees who do not have high-risk conditions The CDC, ERO, and other courts have recognized that COVID-
19 presents a substantial risk of harm to all persons, and not just to detainees with higher-risk conditions. See, e.g., Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848, at *1 (N.D. Cal. Apr. 29, 2020); Sallaj v. U.S. Immigration & Customs Enf't ("ICE"), No. CV 20-167-JJM-LDA, 2020 WL 1975819, at *3 (D.R.I. Apr. 24, 2020); Savino I, 2020 WL 1703844, at *7; Savino II, 2020 WL 2404923, at *7. Although “the harm of a COVID-19 infection will generally be more serious for some petitioners than for others” it “cannot be denied that the virus is gravely dangerous to all of us.” Savino, 2020 WL 1703844, at *7. Recent data support this conclusion. A study from the CDC showed that even in patients between ages 19-64 with no underlying health conditions, the total hospitalization rate was 8-8.7%.42 In a different CDC study of hospitalized COVID-19 patients, 26% had no high-risk factors—of that subpopulation, 23% received ICU care and 5% died.43
42 Nancy Chow et al., CDC, COVID-19 Response Team, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020, 69 Morbidity & Mortality Weekly Report 382, 382-84 (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6913e2-H.pdf.
43 JA Gold et al., CDC, Characteristics and Clinical Outcomes of Adult Patients Hospitalized with COVID-19 — Georgia,
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The virus certainly threatens us all, but detainees in prison facilities face even greater risks of catching COVID-19; as of May 14, four of the five largest outbreaks of COVID-19 in the United States were in detention facilities.44 Courts around the country acknowledge this fact. See, e.g., Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1812850, at *4 (N.D. Cal. Apr. 9, 2020); Basank, 2020 WL 1481503, at *3 (“[t]he nature of detention facilities makes exposure and spread of the virus particularly harmful.”); Castillo v. Barr, No. CV2000605TJHAFMX, 2020 WL 1502864, at *5 (C.D. Cal. Mar. 27, 2020) (“[T]he Government cannot deny the fact that the risk of infection in immigration detention facilities – and jails – is particularly high if an asymptomatic guard, or other employee, enters a facility.”); Coreas, 2020 WL 1663133, at *6 (finding it implausible that “someone will be safer from a contagious disease while confined in close quarters with dozens of other detainees and staff than while at liberty”).
March 2020. 69 Morbidity & Mortality Weekly Report 545, 545-50 (May 8, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/ pdfs/mm6918e1-H.pdf.
44 NY Times, Coronavirus in the U.S.: Latest Map and Case Count, https://www.nytimes.com/interactive/2020/us/coronavirusus-cases.html?action=click&module=Top%20Stories&pgtype =Homepage&action=click&module=Spotlight&pgtype=Homepage#states. (Updated May 14, 2020 3:03PM).
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The SCHOC has not eliminated many of these risks. The conditions of confinement do not allow for social distancing within cells, inmates interact in common spaces, employees move throughout the facility working on multiple units, and attorneys and clergy continue to enter the facility without established social distancing procedures. Moreover, inmates are not required to follow recommendations about masks and social distancing in common spaces. In sum, there are many vectors and paths through which COVID-19 could be introduced and spread quickly through the facility.
COVID-19 is highly contagious, and detainees live in close quarters; therefore, their chances of infection are higher if COVID-19 is introduced at SCHOC. Once infected, as Judge Young recently recognized in Savino, “taking hospitalization as a marker of ‘serious harm,’ it is apparent that even the young and otherwise healthy detainees face a ‘substantial risk’ (between five and ten percent) of such harm.” 2020 WL 1703844, at *7. Accordingly, the court concludes that even detainees who do not have a condition that places them at heightened risk of COVID-19 complications or death would likely be able to demonstrate that detention at SCHOC places them at a “substantial risk of serious harm.” Coscia, 659 F.3d at 39.
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Under a traditional Eighth Amendment deliberate indifference analysis, the court would ask whether the respondents subjectively knew of the substantial risk to detainees’ health. See Leite, 911 F.3d at 52; Farmer, 511 U.S. at 837 (defining the “deliberate” part of “deliberate indifference” to require that a prison official “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference”). If a prison official is aware of the risk, “they cannot be deliberately indifferent if they responded reasonably to the risk, even if the harm ultimately was not avoided.” Burrell, 307 F.3d at 8 (citing Farmer, 511 U.S. at 844). “[A] reasonable response clearly defeats the claim of constitutional violation.” Id.
Courts that apply Kingsley to pretrial detainee due process claims also consider the reasonableness of the defendant’s response to conditions that pose an excessive risk to detainee health or safety. See, e.g., Darnell, 849 F.3d at 35 (holding a pretrial detainee has established a claim for deliberate indifference to conditions of confinement if he proves the defendant intentionally or recklessly “failed to act with reasonable care” to mitigate a condition that “posed an excessive risk to health or safety” (emphasis added)); Gordon v.
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Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (directing courts to consider whether the defendant failed to take “reasonable available measures” to abate a “substantial risk” of the detainee “suffering serious harm” (emphasis added)).
Therefore, whether the court applies the Eighth Amendment’s subjective deliberate indifference test, or the post-Kingsley objective deliberate indifference test, the court must consider whether respondents have taken reasonable steps to abate the risk. If respondents’ steps are reasonable, then petitioners would be unlikely to succeed on the merits of their due process claim under either test. See Burrell, 307 F.3d at 8.
The answer to this question at this early stage is a close call. And the case law analyzing due process claims brought by lower-risk detainees, while largely new and undeveloped, gives the court pause. One court within this circuit has concluded that a lower-risk detainee was likely to succeed on the merits of his habeas corpus petition after several inmates in the facility tested positive for COVID-19. See Sallaj, 2020 WL 1975819, at *3. Several other courts have concluded that—absent evidence of COVID-19 in the facility—a lower-risk petitioner is unlikely to succeed on the merits of his due process claim. See, e.g., Coreas, 2020 WL 1663133, at *11; Sacal-Micha v. Longoria, No. 1:20-CV-37, 2020 WL 1518861, at *2 (S.D. Tex. Mar.
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27, 2020); Basank, 2020 WL 1481503, at *4. Additional courts, having certified a class that includes both high- and lower-risk detainees, elected to give all class members bail hearings pending the resolution of their habeas corpus petitions. See Zepeda Rivas, 2020 WL 2059848, at *3; Savino, 2020 WL 1703844, at *8.
At the time of the May 1 hearing, many of SCHOC’s efforts to ameliorate the dangers of COVID-19 were nascent and had yet to be fully implemented. And the court has no evidence that COVID-19 is present in SCHOC. Therefore, because it is a close call whether detainees who do not have a high-risk condition have demonstrated that they are likely to succeed on the merits of their habeas claims, the court will hold this portion of its ruling in abeyance.
This will allow the court to determine whether respondents’ mitigation efforts have been implemented. The additional time will also allow the respondents the opportunity to consider implementing additional protective measures including those contained in a May 6 report from the CDC about COVID-19 in Correctional and Detention Facilities; for example, that detention facilities “assign staff members to consistent locations to limit movement between facility areas.” CDC Detention Report. In addition, this court notes Superintendent
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Brackett’s stated intent to explore other protective measures, including for high-risk inmates.45 Cf. Farmer, 511 U.S. at 845 (where equitable relief is sought, seeking “to prevent a substantial risk of serious injury from ripening into actual harm, ‘the subjective factor, deliberate indifference, should be determined in light of the prison authorities’ current attitudes and conduct’: their attitudes and conduct at the time suit is brought and persisting thereafter” (internal citation omitted) (quoting Helling, 509 U.S. at 36)).
The court urges respondents to exercise their authority to reassess whether detainees who are not a danger to the community or a risk of flight could be more appropriately detained in a non-carceral setting such as home confinement. Once the court has concluded the bail hearings for high-risk detainees, and respondents have had a further opportunity to exercise discretion and voluntarily reassess custody, the court will revisit the question of lower-risk detainees’ entitlement to bail hearings.
The court orders the parties to immediately notify the court should any inmate or staff member at SCHOC test positive
45 As of May 14, the court had denied bail to 4 of 11 highrisk detainees. The efforts at the SCHOC to protect these particularly vulnerable detainees is of great concern to the court.
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for COVID-19. At that time, the court will consider the likelihood that lower-risk detainees will succeed on their due process claim in light of the presence of COVID-19 in the facility and the measures SCHOC has taken at that time in response to that risk.46
III. May 29, 2020 hearing The court will hold a hearing on May 29 about measures to
reduce the risk of COVID-19 at SCHOC. At that time, the court would like to hear from the parties, through stipulated facts, memoranda supported by appropriate record citations, and/or affidavits or live testimony, about the following:
a. Identification of High-Risk Detainees: • What guidance does SCHOC rely on in deciding whether a detainee’s medical condition places him at “high risk”?
46 On May 1, Superintendent Bracket testified that SCHOC has two negative pressures cells that can house three people each and has the capacity to make Unit F, the current quarantine unit, a negative pressure environment. If an inmate or detainee becomes infected with the virus, SCHOC’s plan is to quarantine that person in one of the negative pressure cells and then coordinate with DHS to formulate next steps. SCHOC does not currently have a plan to deal with an outbreak that exceeds the capacity of the negative pressure cells. SCHOC has about 700 N95 masks and other personal protective equipment (e.g. gowns and face shields) that it is holding in reserve to use should an outbreak of the virus occur.
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• Does SCHOC’s interpretation of this guidance recognize that CDC/ERO documents are non-exhaustive (“including but not limited to”) and that some comorbidities which may not be explicitly included in these documents, such as hypertension, also make detainees with these conditions “high risk”?
• What is the process at SCHOC to screen incoming detainees for high-risk medical conditions?
• Who is involved in this process? Who makes the final decision as to who is a “high-risk” detainee?
• How long does this process take and what measures are put in place to protect detainees prior to its completion?
• How many detainees absent court involvement has SCHOC designated as “high risk?”
• Is SCHOC following the ERO’s Pandemic Response Requirements and notifying ICE after identifying detainees “as soon as practicable, but in no case more than 12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19.”
b. Reassessing Custody for High-Risk Detainees:
• Is ICE following ERO guidance and reassessing whether continued detention is appropriate? See Response Requirements at 14; Resp. Ex. 19.
• How many high-risk detainees at SCHOC has ICE released to non-carceral detention since this lawsuit was filed absent court order?
• How many high-risk detainees remain detained at SCHOC?
c. Protective Measures for High-Risk Detainees:
• Can SCHOC test each “high risk” detainee to confirm they do not have COIVD-19?
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• Before SCHOC exposes a high-risk detainee to a different/new inmate in a unit or cell, can the SCHOC test the new inmate to confirm they do not have COVID-19?
• What measures has SCHOC implemented to protect high-risk detainees who remain detained?
• Are there additional steps that SCHOC would like to take but has been unable to take? What impediments stand in the way of implementing additional protective measures?
d. Testing and Contact Tracing: • What circumstances trigger testing of a staff member (e.g. exposure to infected person outside of work, symptoms, etc)? • What circumstances trigger testing of an inmate/detainee (what specific symptom threshold, transport to hospital or other location outside of prison, etc)?
• If an inmate or employee is given a rapid test, but tests negative, is a follow-up test administered?
• If an inmate has a symptom, must he self-report it? How is the symptom monitored? If the inmate does not receive a test, is SCHOC tracking symptoms that do not trigger the testing protocol?
• Has SCHOC considered randomly testing detainees or inmates?
• Are new inmates/detainees tested when they arrive? If not, why not?
• What impediments prevent SCHOC from testing all inmates?
• Does SCHOC have a written policy related to contract tracing?
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e. Reducing Risk COVID-19 will be Introduced at SCHOC:
• On May 1, Superintendent Brackett testified that staff are screened prior to entering SCHOC. Given the high percentage of identified COVID-19 cases in asymptomatic individuals, what efforts, if any, has SCHOC taken to reduce the risk that COVID-19 will be introduced into SCHOC by someone who is asymptomatic but positive for COVID-19?
• Since May 1, have airlift detainees from detention facilities with known COVID-19 cases such as Wyatt and Bristol proceeded directly to Pease, as Superintendent Brackett testified would occur, or have detainees from facilities with known COVID-19 cases entered SCHOC?
• If a detainee enters SCHOC from a facility with no known cases of COVID-19, but a case is later identified at the detainee’s previous facility, what would occur at SCHOC with regard to the detainee and those who have been in contact with him or her?
• Who other than staff of SCHOC enters the facility and what measures has SCHOC put in place to reduce the risk that one of these non-employees will introduce COVID-19?
• As of May 1, clergy and attorneys continued to conduct in-person visits at SCHOC. Does the jail have any procedures for these visits with regard to masks, social distancing, or other measures to reduce the risk of COVID-19?
f. Reducing Risk COVID-19 would Spread Throughout SCHOC:
• Are SCHOC employees still rotating between housing units?
• What efforts are respondents taking to identify lowerrisk detainees and release those who are not a risk of flight or danger to the community?
• Since this lawsuit was filed, how many detainees has ICE voluntarily released to non-carceral detention?
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• Do inmates that work in different parts of the jail (e.g. kitchen) live in different housing units? In other words, allowing inmates from different housing units to mix while at work and then return to respective units.
• If an inmate or detainee tests positive for COVID-19, what is SCHOC’s response plan?
• If an employee at SCHOC tests positive for COVID-19, what is SCHOC’s response plan?
• Are there additional measures SCHOC would like to put in place in response to COVID-19 but is unable to do so?
• What additional personal protective equipment does SCHOC need should COVID-19 enter the facility?

The court will rely on the evidence adduced at this hearing in resolving the parties’ remaining motions.
SO ORDERED.

May 14, 2020 cc: Counsel of Record.

__________________________ Landya McCafferty United States District Judge

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 Case 1:20-cv-00453-LM Document 204 Filed 06/16/20 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robson Xavier Gomes
v.
US Department of Homeland Security, Acting Secretary et al.

Civil No. 20-cv-453-LM Opinion No. 2020 DNH 102

O R D E R

In April 2020, civil immigration detainees being held at the Strafford County House of Corrections (“SCHOC”) filed an amended “Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 and Class Complaint for Declaratory and Injunctive Relief.” Doc. no. 5. Petitioners allege respondents have violated their constitutional due process rights by acting with deliberate indifference to their risk of contracting COVID-19 at SCHOC. Petitioners seek emergency relief, including release.
The respondents move to dismiss arguing: (1) petitioners lack Article III standing; (2) petitioners’ claims are not cognizable through a habeas petition; (3) petitioners have failed to state a plausible constitutional due process claim; and, (4) petitioner’s amended petition fails to put respondents on notice of their claimed transgressions and so should be dismissed or amended pursuant to Rule 8 of the Federal Rules of

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Civil Procedure. Doc. no. 128. The court addresses each argument below.1
DISCUSSION 1. Article III Standing To satisfy constitutional standing in federal court a petitioner must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, (2016), as revised (May 24, 2016). Respondents argue that petitioners have not suffered an injury in fact because their “assertion that detention per se poses an increased risk of health complications or death from COVID-19 is purely speculative.” Doc. no. 128 at 13. Respondents further contend that any injury is not fairly traceable to respondents because
1 The court has already issued several orders in this case. A couple are relevant here. First, the court has concluded that detainees with medical conditions that place them at higher risk of death or serious injury from COVID-19 are likely to prevail on their due process claims (doc. nos. 52 and 123). The court has also provisionally certified civil immigration detainees at SCHOC as a class for the purpose of facilitating bail hearings (doc. no. 50). As of June 15, 2020, the court has conducted fifteen bail hearings for high-risk detainees and has released ten detainees on conditions. A more detailed recitation of the relevant facts and procedural history in this case is available in the court’s May 14, 2020 order (doc. no. 123).
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the risk of injury from COVID-19 is due to the pandemic itself, and to any pre-existing conditions a detainee may have, but not to the respondents.
The court has no trouble finding that petitioners have standing. As the Supreme Court observed in Helling v. McKinney, 509 U.S. 25, 33 (1993), “it 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.” COVID-19 has moved rapidly and expansively through the country and its detention facilities. SCHOC has not escaped the pandemic: a member of SCHOC’s medical administration staff and two provisional class members have tested positive for COVID-19 since petitioners filed the amended petition. Because “[a] remedy for unsafe conditions need not await a tragic event,” id., this court joins numerous others in rejecting respondents’ standing arguments. See, e.g., Fraihat v. U.S. Immigration & Customs Enf't, No. EDCV191546JGBSHKX, 2020 WL 1932570, at *21 (C.D. Cal. Apr. 20, 2020); Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *4 (D. Mass. Apr. 8, 2020); Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *6 (D. Md. Apr. 3, 2020); Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *2 (M.D. Pa. Mar. 31, 2020) (finding standing challenge “easily resolved”). Indeed, respondents have not
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identified a single case in which a court has determined that Immigration and Customs Enforcement (“ICE”) detainees lack standing to bring a due process claim based on the risks presented by COVID-19. Thus, the request to dismiss the petition for lack of standing is denied.
2. Cognizability of Petitioners’ Claims Through a Habeas Petition
Respondents next argue that petitioners’ claim is not cognizable through a 28 U.S.C § 2241 habeas petition. Respondents assert that petitioners “do not challenge the authority of the government per se to detain them” but instead “challenge the conditions under which they are being confined only in the unique circumstances of the current pandemic.” Doc. no. 128-1 at 15. In support, respondents rely on decisions from outside the First Circuit, including an opinion from the District of Colorado concluding the court lacked jurisdiction over an ICE detainee’s habeas claim seeking release based on the conditions of his confinement during the COVID-19 pandemic because “a prisoner who challenges the conditions of his confinement must do so through a civil rights action.” Basri v. Barr, No. 1:20-cv-00940-DDD, slip op. at 3-11 (D. Colo. May 11, 2020) (internal quotation marks omitted); see also Toure v. Hott, No. 1:20-CV-395, 2020 WL 2092639, at *5-6 (E.D. Va. Apr.
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29, 2020) (concluding § 2241 is an “improper vehicle” for conditions of confinement claims in the Fourth Circuit, but observing that the First Circuit allows these same claims to be brought through habeas petitions).
In Preiser v. Rodriguez, the United States Supreme Court held that where a prisoner “challeng[es] the very fact or duration of his physical imprisonment,” his claim falls within the “heart” or “core” of habeas corpus, and may be brought in federal court only by means of a petition for the writ of habeas corpus. 411 U.S. 475, 500 (1973). The Court reasoned that allowing state prisoners to bring these claims under the federal civil rights statute, 42 U.S.C. § 1983, would evade the exhaustion and other procedural requirements established for state habeas cases in the federal courts. Id. at 489–90. But the Court did not hold the converse to be true: that district courts lacked jurisdiction over habeas claims that fell outside the “heart” of habeas corpus. To the contrary, the Court explicitly cautioned: “This is not to say that habeas corpus may not also be available to challenge such prison conditions.” Id. at 499. The Court further noted: “When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove
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the restraints making the custody illegal.” Id. (citation omitted).
Since Preiser, the Supreme Court has expressly declined to rule on whether detainees may bring claims challenging the conditions of their confinement through a writ of habeas corpus. For example, in Bell v. Wolfish, the Court left “to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.” 441 U.S. 520, 527 n. 6 (1979). More recently, the Supreme Court stated that it has “left open the question whether [prisoners] might be able to challenge their confinement conditions via a petition for a writ of habeas corpus.” Ziglar v. Abbasi, ––– U.S. ––––, 137 S. Ct. 1843, 1862-63 (2017).
In the absence of clear guidance, circuit courts have split on the extent to which habeas provides a mechanism for asserting challenges to conditions of confinement. Wilborn v. Mansukhani, 795 F. App'x 157, 163 (4th Cir. 2019) (listing cases). And the D.C. Circuit has observed that other circuits that have relied on Preiser to limit claims that can be brought in habeas may have fundamentally misunderstood the case. Aamer v. Obama, 742 F.3d 1023, 1036 (D.C. Cir. 2014). As the D.C. Circuit explained: “Preiser imposed a habeas-channeling rule, not a
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habeas-limiting rule: the Court held only that claims lying at the ‘core’ of the writ must be brought in habeas, and expressly disclaimed any intention of restricting habeas itself.” Id.
Against this backdrop, the First Circuit has observed that Preiser “explicitly left open the possibility that a challenge to prison conditions, cognizable under § 1983, might also be brought as a habeas corpus claim” and that claims “involving challenges to the fact or length of confinement” may proceed as habeas claims. Brennan v. Cunningham, 813 F.2d 1, 4 (1st Cir. 1987). The First Circuit has also observed that “Section 2241 provides a remedy for a federal prisoner who contests the conditions of his confinement,” Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977), and “[i]f the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available.” United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006).2
Here, petitioners have asked the court to “Issue a Writ of Habeas Corpus . . . and order their immediate release or placement in community-based alternatives to detention such as
2 But compare Aamer, 742 F.3d at 1036 (relying on DeLeon for the proposition that the First Circuit has concluded that an “individual in custody may utilize habeas corpus to challenge the conditions under which he is held”), with Spencer v. Haynes, 774 F.3d 467, 470 (8th Cir. 2014) (characterizing DeLeon as only “contributing dictum” to the view that conditions of confinement claims can be brought by a writ of habeas corpus).
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conditional release, with appropriate public health measures.” Doc. no. 5 at 28. In Gonzalez-Fuentes v. Molina, the First Circuit considered a somewhat analogous situation: whether inmates could bring a habeas claim seeking release from prison to home confinement and electronic supervision. 607 F.3d 864, 873 (1st Cir. 2010). The court characterized the question as a “difficult intermediate case” because the inmates were “seeking neither a change in conditions nor an earlier release, but rather a less restrictive form of custody.” Id. Relying on an opinion of the Seventh Circuit, the court held that “habeas corpus is [the] remedy” for a prisoner seeking what “can fairly be described as a quantum change in the level of custody” such as “‘outright freedom’” or “‘freedom subject to the limited reporting and financial constraints of bond or parole or probation.’” Id. (quoting Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) and citing Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring) (approving of “quantum change” framework)). Applying this framework, the First Circuit reasoned that because individuals released to the electronic supervision program could “live with family members, work daily jobs, attend church, and reside in their own homes rather than in an institutional setting,” the difference between release and incarceration could “fairly be described as a quantum change in
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the level of custody.” Id. The First Circuit concluded the inmates’ claim in Molina was “correctly considered in habeas corpus.” Id.3
Here, as in Molina, petitioners seek a quantum change in the level of their custody; they request “immediate release or placement in community-based alternatives to detention.” Doc. no. 5 at 28. On this basis, therefore, the court concludes that petitioners’ claim may properly be brought by a petition for a writ of habeas corpus. See Molina, 607 F.3d at 873-74. In so holding, the court is in accord with numerous other courts both in the First Circuit and around the country. See, e.g., Baez v. Moniz, No. CV 20-10753-LTS, 2020 WL 2527865, at *2 (D. Mass. May 18, 2020) (concluding pretrial detainees’ claims seeking release due to risk of COVID-19 “sound in habeas” and the court had jurisdiction to consider them under § 2241); Vazquez Barrera v. Wolf, No. 4:20-CV-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020); Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *6 (D. Md. Apr. 3, 2020); see also Wilson v. Williams, No. 20-3447, 2020 WL 3056217, at *5, (6th Cir. June 9,
3 Respondents’ motion to dismiss does not rely upon any First Circuit cases in urging the court to dismiss petitioners’ claims for lack of jurisdiction and does not analyze the effect of any of the First Circuit cases cited in this portion of the court’s analysis.
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2020) (court had jurisdiction over § 2241 petition in which subclass of medically vulnerable inmates sought release due to the risk of COVID-19).4 For these reasons, respondents’ request to dismiss this action as an improper habeas petition is denied.
3. Sufficiency of Due Process Constitutional Claim Respondents next argue the petition should be dismissed because petitioners have failed to state a constitutional due process claim. In making this argument, respondents fail to acknowledge that the court has already concluded that at least some petitioners (at minimum, those with a medical condition that puts them at higher risk of death or injury from COVID-19) have demonstrated a likelihood of success on their due process constitutional claim. See doc. no. 123 at 42-43. To the extent that a Rule 12(b)(6) motion to dismiss for failure to state a claim may be filed in the context of a § 2241 petition,5 the threshold for surviving such a motion is low. The
4 The court also observes that petitioners have styled their action as both a habeas petition and a complaint seeking declaratory and injunctive relief. Doc. no. 5. Therefore, petitioners may have a cause of action for equitable relief “wholly apart from habeas.” Savino v. Souza, No. CV 20-10617WGY, 2020 WL 2404923, at *3 (D. Mass. May 12, 2020).
5 See, e.g., Delgado v. Dennehy, 503 F. Supp. 2d 411, 413 (D. Mass. 2007) (“Motions to dismiss habeas petitions pursuant to [Rule] 12(b)(6) are not inconsistent with habeas rules.”); see also Rasheed v. Duval, 57 F.3d 1061, 1995 WL 365994, at *1 (1st Cir. 1995) (in granting respondent’s Rule 12(b)(6) motion
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court must accept factual allegations in the complaint as true, draw reasonable inferences from those facts in the petitioners’ favor, and “determine whether the factual allegations in the plaintiff’s complaint set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014) (internal quotation marks omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
As the court has already concluded that at least some petitioners are likely to succeed on the merits of their claim, it easily concludes that petitioners’ due process claim is facially plausible.
4. Rule 8 Respondents final attempt at dismissal appears in their reply. Respondents argue that the court should dismiss
to dismiss court could consider exhibits attached to petition). But see Banister v. Davis, No. 18-6943, 2020 WL 2814300, at *12 (U.S. June 1, 2020) (a “civil mainstay, the Rule 12(b)(6) motion to dismiss, . . . has no place in habeas” (Alito, J., dissenting) (citing Browder v. Dir., Dep't of Corr. of Illinois, 434 U.S. 257, 269 n.14 (1978).
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petitioners’ amended petition, or require petitioners to file a second amended pleading, because the amended petition lacks sufficient factual allegations and does not account for “substantial reforms” that respondents have taken since the petition was filed. Doc. no. 191 at 9-10. Respondents assert that the amended petition “does not notify respondents of how, specifically, respondents have been either deliberately indifferent or objectively unreasonable”; therefore, it does not comply with Rule 8 of the Federal Rules of Civil Procedure. Id. at 10.
Rule 8 applies here to the extent that it is not inconsistent with the requirements of Rule 2 of the Rules Governing § 2254 Cases (“§ 2254 rules”). See DeAtley v. Williams, 782 F. App’x 736, 737 n.3 (10th Cir. 2019), cert. denied, No. 19-7915, 2020 WL 2515817 (U.S. May 18, 2020); see also § 2254 Rule 1 (the district court may apply § 2254 rules to petitions filed under § 2241). Rule 2 of the § 2254 rules requires, in pertinent part, that habeas petitions must specify all of the grounds for relief, state the facts supporting each ground, and state the relief requested. “A prime purpose of Rule 2(c)’s demand that habeas petitioners plead with particularity is to assist the district court in determining on the face of the petition whether the State should be ordered to
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“‘show cause why the writ should not be granted,’” or whether the petition should be summarily dismissed without the court ordering a responsive pleading. Mayle v. Felix, 545 U.S. 644, 656 (2005) (quoting 28 U.S.C. § 2243).
Pursuant to Federal Rule of Civil Procedure 8(a)(2), the complaint “must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “The purpose of a clear and succinct pleading is to give a defendant fair notice of the claim and its basis as well as to provide an opportunity for a cogent answer and defense.” Belanger v. BNY Mellon Asset Mgmt., LLC, 307 F.R.D. 55, 57 (D. Mass. 2015); see also Calvi v. Knox County, 470 F.3d 422, 430 (1st Cir. 2006).
Dismissal for noncompliance with Rule 8 is typically “reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Sayied v. White, 89 F. App’x 284, 2004 WL 489060, at *1 (1st Cir. 2004) (internal quotation marks omitted). “In evaluating whether a pleading meets Rule 8’s short and plain statement requirement, the court should consider the nature of the action, the relief sought and a number of other pragmatic matters.” Currier v. Town of
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Gilmanton, No. 18-CV-1204-LM, 2020 WL 1923357, at *1 (D.N.H. Apr. 21, 2020) (internal quotation marks omitted).
Here, although it is true that the facts have developed since petitioners filed their amended petition on April 17, the amended petition is far from confused, vague, or unintelligible. See Sayied, 2004 WL 489060, at *1. On the contrary, the amended petition alleges that specific actions—for example, respondents’ “failure or inability to facilitate social distancing at [SCHOC],” the mixing of civil immigration detainees with general population inmates at SCHOC, and the transfer of detainees from other facilities to SCHOC—violate petitioners’ due process rights. Doc. no. 5 at ¶ 73. Respondents’ litigation of this case over the last two months, combined with respondents’ discussion of petitioners’ constitutional arguments in their motion to dismiss, demonstrates that respondents have fair notice of petitioners’ claims. See Belanger, 307 F.R.D. at 57.
This court has already determined from reviewing the face of the amended petition that summary dismissal was not appropriate and directed respondents to file an answer. See Apr. 20, 2020 Endorsed Order. The matters asserted in respondents’ motion to dismiss do not demonstrate that the court erred in that regard. The court has no trouble concluding that the amended petition satisfies all pertinent pleading
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requirements. For these reasons, the request to dismiss the petition for violating Rule 8 is denied.

CONCLUSION For the foregoing reasons, respondents’ motion to dismiss (doc. no. 128) is denied. SO ORDERED.

June 16, 2020 cc: Counsel of Record.

__________________________ Landya McCafferty United States District Judge

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 Case 1:20-cv-00453-LM Document 218 Filed 07/01/20 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robson Xavier Gomes
v.
US Department of Homeland Security, Acting Secretary et al.

Civil No. 20-cv-453-LM Opinion No. 2020 DNH 111

O R D E R In this case, a group of detainees being held by Immigration and Customs Enforcement (“ICE”) at the Strafford County House of Corrections (“SCHOC”) challenge their confinement in light of the COVID-19 pandemic. Petitioners filed a petition for writ of habeas corpus and class complaint (doc. no. 5) alleging that respondents have acted with deliberate indifference by subjecting them to a substantial risk of severe injury or death from COVID-19. Petitioners seek declaratory and injunctive relief, including release. In a prior order, the court found that detainees with medical conditions placing them in a high-risk category with respect to COVID-19 are entitled to bail hearings. See Doc. no. 123. The court left open the question whether detainees without such medical conditions (“lower-risk” detainees) are also entitled to bail hearings. This order answers that question.

Case 1:20-cv-00453-LM Document 218 Filed 07/01/20 Page 2 of 22
LEGAL STANDARD As the court has held, a habeas petitioner is entitled to a bail hearing if he demonstrates a substantial claim of constitutional error and extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective. See Mapp v. Reno, 241 F.3d 221, 230 (2d Cir. 2001)); Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir. 1972). A habeas petitioner demonstrates that he has a substantial claim of constitutional error by showing he is likely to succeed on the merits of his habeas petition.
BACKGROUND In its May 14 Order, the court summarized the relevant facts and procedural history in this case. Doc. no. 123. The court assumes the reader is familiar with that history. In that order, the court concluded after a day-long evidentiary hearing on May 1 that it was a close call whether lower-risk detainees were likely to prevail on their constitutional claims, especially given the absence of any reported COVID-19 cases within SCHOC. Doc. no. 123 at 55. The court held that portion of its ruling in abeyance and scheduled a further evidentiary hearing for May 29. The court instructed the parties to address specific questions about respondents’ measures to reduce the risk of COVID-19 entering and spreading at SCHOC. The court also ordered the parties to immediately
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notify the court if anyone at SCHOC tested positive for COVID19.
The next day, on May 15, an asymptomatic member of SCHOC’s medical administration staff tested positive for COVID-19. She was tested as part of a Strafford County initiative which provided monetary incentives for county employees who agreed to receive a COVID-19 test. The staff member stayed out of work until she tested negative on two subsequent COVID-19 tests.
On May 16, an ICE detainee who had been transferred from another ICE detention facility two days prior tested positive for COVID-19. This detainee exhibited mild COVID-19 symptoms at intake and was immediately isolated and tested.
On May 19, a second ICE detainee tested positive for COVID19. The second detainee entered SCHOC on May 14 after being arrested in Connecticut. He did not exhibit COVID-19 symptoms at intake but was tested at a hospital when he was admitted for diabetes management. SCHOC isolated the five individuals who had been exposed to the second detainee and administered COVID-19 tests, none of which came back positive. No additional staff members, detainees, or inmates have subsequently tested positive for COVID-19; however, testing has been limited.1
1 Based on information contained in respondents’ weekly status reports, fifteen COVID-19 tests have been administered to detainees at SCHOC between May 14 and June 3, no tests were administered from June 3 to June 24, and five tests were
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The court held its second evidentiary hearing about the conditions of confinement at SCHOC over two days on May 29 and June 1. Four witnesses testified at this hearing: Jairo Ruben Hernandez, an ICE detainee at SCHOC; Alan Greenbaum, an Assistant Field Office Director for ICE; Christopher Brackett, Superintendent at SCHOC; and Tracy Warren, Medical Administrator at SCHOC. Based on the evidence adduced at both evidentiary hearings and the arguments in the parties’ pleadings, the court concludes that lower-risk detainees have not demonstrated that they are likely to succeed on their claims. They are not entitled, therefore, to bail hearings pending a ruling on the merits of their claims.
DISCUSSION In its May 14 Order, the court laid out the two standards that could apply to petitioners’ deliberate indifference claims. One is the standard applied when the plaintiff is a convicted prisoner: government officials violate the Eighth Amendment if they act “with deliberate indifference to a substantial risk of serious harm to health.” Coscia v. Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011); accord Farmer v. Brennan, 511 U.S. 825, 835 (1994); see also Leite v. Bergeron, 911 F.3d 47, 52 (1st Cir. 2018). This standard has a subjective component; to
administered from June 24 to July 1, 2020. Doc. nos. 151, 171, 185, 192, 205, 208, 216.
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satisfy it, the petitioners “must provide evidence that the [respondent] had actual knowledge of impending harm, easily preventable, and yet failed to take the steps that would have easily prevented that harm.” Zingg v. Groblewski, 907 F.3d 630, 635 (1st Cir. 2018) (quotation marks and citation omitted). The requisite mental state is said to be “characterized by obduracy and wantonness, not inadvertence or error in good faith,” and “has been likened to ... criminal recklessness.” Leite, 911 F.3d at 52-53 (quotation marks omitted).
A second possible standard emerges from the Supreme Court’s opinion in Kingsley v. Hendrickson, where the Court concluded that “the appropriate standard for a pretrial detainee’s excessive force claim is solely an objective one.” Kingsley, 576 U.S. 389, 397-98 (2015). Since Kingsley, some courts have applied an objective standard outside of the excessive force context and have concluded that a civil detainee can establish a due process violation for unconstitutional conditions of confinement by showing that a government official “recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the [civil] detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to the plaintiff’s health or safety.” Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (emphasis in original, internal quotation marks and alterations
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omitted); see also Banks v. Booth, No. CV 20-849(CKK), 2020 WL 1914896, at *5 (D.D.C. Apr. 19, 2020) (holding a civil detainee “need only show that prison conditions are objectively unreasonable in order to state a claim under the due process clause”); Estate of Vallina v. Cty. of Teller Sheriff’s Office, 757 F. App'x 643, 646 (10th Cir. 2018) (noting that Second, Seventh, and Ninth Circuits have “adopted an objective test” requiring “reckless disregard,” while the Fifth, Eighth, and Eleventh Circuits have held that Kingsley does not extend to detainee medical care claims).
The First Circuit has yet to address whether Kingsley’s objective test is limited to excessive force claims or applies to other due process claims brought by civil detainees. District courts within the First Circuit have reached different conclusions on this question. See doc. no. 123 at 33-35 (collecting cases), see also Baez v. Moniz, No. CV 20-10753-LTS, 2020 WL 2527865, at *7 (D. Mass. May 18, 2020) (concluding pretrial detainees had to show subjective deliberate indifference); Yanes v. Martin, No. 120CV00216MSMPAS, 2020 WL 3047515, at *2 n.3 (D.R.I. June 2, 2020) (concluding Kingsley did away with the need for civil detainees to show “the subjective state of mind that is a hallmark of the ‘deliberate indifference’ or ‘reckless disregard’ formulations”).
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The court need not resolve this question because even applying an “objective reasonableness” test, the lower-risk petitioners have not met their burden. The court reaches this conclusion despite the lack of any meaningful dispute that COVID-19 presents a substantial risk of serious harm to the health of even lower-risk detainees, as it does members of the society at large. See doc. no. 123 at 50-51; Baez, 2020 WL 2527865, at *7. Although “the harm of a COVID-19 infection will generally be more serious for some petitioners than for others” it “cannot be denied that the virus is gravely dangerous to all of us.” Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *7 (D. Mass. Apr. 8, 2020). A study from the CDC showed that even in patients between ages 19-64 with no underlying health conditions, the total hospitalization rate was 8-8.7%.2 In a different CDC study of hospitalized COVID-19 patients, 26% had no high-risk factors and—of that subpopulation—23% received ICU care and 5% died.3
2 Nancy Chow et al., CDC, COVID-19 Response Team, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020, 69 Morbidity & Mortality Weekly Report 382, 382-84 (Apr. 3, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6913e2-H.pdf. (last accessed July 1, 2020).
3 JA Gold et al., CDC, Characteristics and Clinical Outcomes of Adult Patients Hospitalized with COVID-19 — Georgia, March 2020, 69 Morbidity & Mortality Weekly Report 545, 545-50 (May 8,
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Nor is there a meaningful dispute that respondents knew or should have known that COVID-19 presents a substantial risk, especially within detention facilities: many state and federal agencies have “bombarded the public and institutions with warnings.” Yanes, 2020 WL 3047515, at *2 n.3; see also doc. no. 123 at 50-51. The question is whether petitioners have carried their burden and demonstrated that—with regard to lower-risk detainees—they are likely to succeed on their claim that conditions at SCHOC remain objectively unreasonable. See Yanes, 2020 WL 3047515, at *2, Banks, 2020 WL 1914896, at *5. While the respondents’ approach to reducing the risks of COVID-19 has not been flawless, it has been, on balance, objectively reasonable. The court begins by summarizing the steps respondents have taken to reduce the risk of COVID-19.
1. Measures respondents have taken to reduce the risk of COVID-19 As the court detailed in its May 14 order, SCHOC, like many
other facilities, has modified its conditions of confinement in light of the risks presented by COVID-19. Doc. no. 123 at 1525. During the most recent evidentiary hearing (May 29 and June 1), the court received additional evidence about SCHOC’s ongoing response to COVID-19. This evidence is pertinent to three broad
2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6918e1H.pdf. (last accessed July 1, 2020).
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categories of risk COVID-19 creates in a congregate living setting such as SCHOC: the risk the virus will be brought into the facility; the risk the virus will spread within SCHOC once there; and the risk that COVID-19 is present, but undetected, within the facility.
A. Steps to prevent virus from entering SCHOC Respondents have taken several steps to reduce the risk that individuals with COVID-19 will enter the facility. In March, SCHOC suspended in-person visitation except for professional visits by clergy and attorneys. The number of professional visits has also drastically decreased. Superintendent Brackett testified that in 2019, from March 13 to May 25, approximately 350 professional visits took place; whereas, in 2020 there were only 14 professional visits over the same time period. Doc. no. 194 at 10. SCHOC staff and professionals who enter the facility are subjected to a screening process that includes questions about health symptoms, exposure to COVID-19, and a temperature check. Id. at 10, 103. SCHOC requires staff and professional visitors to wear masks within the facility. Id. Inmates or detainees entering SCHOC are screened for symptoms, and then held in a quarantine unit for fourteen days before entering the general population. Any
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detainee who leaves SCHOC for a medical or court appointment is also quarantined upon return to the facility.
On May 20, Superintendent Brackett emailed Alan Greenbaum requesting that ICE stop transferring detainees into SCHOC from facilities with known cases of COVID-19. Resp. Ex. P. Alan Greenbaum subsequently decided to stop all transfers into SCHOC from all other ICE detention facilities. Doc. no. 193 at 10708, 175-76. Currently, the only way a new detainee enters SCHOC is if the detainee is arrested in the community and ICE elects to house him or her at SCHOC. Id. Because ICE has elected to reduce enforcement actions in light of the COVID-19 pandemic, fewer individuals are being taken into custody. According to ICE’s daily apprehension log, 70% fewer individuals have been taken into custody within the Boston area of responsibility from March through May 2020 compared to the same time period in 2019. Resp. Ex. C.
B. Steps to reduce risk of virus spreading within SCHOC Respondents have also taken meaningful steps to control and militate against the spread of COVID-19 within SCHOC. Respondents did not allow the staff member who tested positive for COVID-19 to return to work until after multiple tests came back negative. SCHOC’s intake screening process, which includes isolating and testing symptomatic individuals, prevented additional detainees from being exposed to the detainee who
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exhibited mild COVID-19 symptoms at intake and ultimately tested positive. Although the second detainee did not exhibit symptoms of COVID-19 at intake, SCHOC’s practice of limiting a new detainee’s contact to others during intake meant that only five additional detainees and inmates were exposed. After the second detainee tested positive for COVID-19, SCHOC was able through contact tracing to quickly identify the five detainees. The five detainees were isolated and tested. Over the last month, no additional staff members or detainees have tested positive for COVID-19.4
In addition, the overall population at SCHOC is well below capacity. As of July 1, the average weekly population at Stafford County was 305, approximately 62% of its maximum 495inmate capacity, and a reduction from the 320 inmates detained at SCHOC as of April 30. See doc. nos. 208 at 2; 40 at 4; 123 at 14. All detainees and staff members have received face masks and SCHOC policy requires staff to wear masks at all times when interacting with detainees. Although some inmates leave their
4 While it is good that no additional staff members or detainees have tested positive since May 19, it appears that testing of both groups has been limited. Respondents’ status reports state no detainees have been tested since June 3. Given SCHOC’s screening protocols for employees and testing protocols for symptomatic detainees, the court interprets the lack of positive COVID-19 tests as an indicator that there have been no symptomatic cases of COVID-19 at SCHOC since May 19.
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housing unit to work in other parts of the jail, such as in the kitchen or at the jail industries building—where inmates can participate in a skill-building program—these detainees must wear masks when outside their assigned unit. Doc. no. 194 at 16. These detainees also all live in the same unit at SCHOC, Unit J. Doc. no. 194 at 13-14. The decision to house all detainees who work outside their housing units together reduces the risk that detainees from multiple units will come into contact with one another and spread COVID-19 throughout the facility.
Under the SCHOC lockdown policy, see doc. 123 at 16-17, the number of detainees out of their cells on “tier time” at any one time is limited. This reduces detainee interactions and decreases the risk that someone with COVID-19 will spread the infection to others within the unit. Detainees clean the common area before a new group of detainees are released on tier time. Doc. no. 193 at 16-17. SCHOC has recently improved its cleaning procedures, and cleaning and hygiene supplies are available to all detainees. Doc. no. 123 at 19; 194 at 16-17.
C. Steps to reduce risk that the virus is present but undetected
Finally, a number of steps have been implemented at SCHOC to identify staff and detainees who may be infected with COVID19. In May, Stafford County incentivized county employees to be
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tested for COVID-19. Fifty-two percent of SCHOC’s correction officers and 65% of its medical staff elected to be tested. Doc. no. 194 at 31. It was through this testing that the asymptomatic staff member was identified as COVID-19 positive. With regard to detainees, those who have been at SCHOC for fewer than 14 days are quarantined, and staff members check them for heightened temperature and conduct a risk-factor screening test twice a day. Doc. no. 194 at 95. For detainees not on quarantine, SCHOC conducts a temperature screening every two or three weeks. Doc. no. 193 at 12, 123 at 19.
Having summarized the positive steps taken at SCHOC to protect detainees, the court next examines the deficiencies that remain.
2. Remaining Deficiencies within SCHOC Respondents’ efforts to reduce the risk of COVID-19 at
SCHOC have not been flawless. ICE detainees at SCHOC, unlike ICE detainees at other facilities in New England, are quarantined and housed together with inmates who are awaiting trial after having been charged with crimes (“pretrial detainees”) and convicted inmates serving their sentences at SCHOC. Although ICE has stopped transferring ICE detainees from other ICE facilities, there was no evidence that SCHOC has prohibited or limited transfers of pretrial detainees or convicted inmates. Nor was there any evidence about whether
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fewer individuals are being charged with crimes, arrested, or detained due to the pandemic. Accordingly, even though the number of ICE detainees at SCHOC is likely to decrease, the overall population at SCHOC may remain unchanged or go up depending on the number of pretrial detainees and convicted inmates who enter the facility.
ICE detainees also remain unable to physically separate themselves from one another due to the size and layout of detention cells and the barracks-style unit. Although respondents have attempted to limit interaction between detained individuals by limiting the number of people released from their cells for “tier time,” on occasion, more people have been out of their cells at the same time than intended. Doc. nos. 193 at 34; 194 at 19.5 And, although it is difficult for detainees to remain physically separated while in their unit, SCHOC does not require them to wear a mask. Doc. no. 194 at 16.
Mask wearing within the facility by both inmates and staff members has also been inconsistent. On May 29, a detainee testified that although he had received a mask a month prior, he had not received instructions about how or when to wear the mask, had not seen detainees wearing masks at SCHOC, and did not
5 Superintendent Brackett testified about an occasion where staff were disciplined after a lapse resulted in more than twelve inmates being out of their cells at the same time. Doc. no. 194 at 19-20.
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know he could ask for a replacement mask when his became soiled. Doc. no. 193 at 21-22. He also testified that at times, he had observed employees and a visiting chaplain removing their masks near detainees. Id. at 23, 25-26, 32-33. Superintendent Brackett also testified that he has observed staff wearing masks improperly. Doc. no. 194 at 45.
Respondents have attempted to educate detainees about COVID-19 through signs and educational material on detainee tablets. However, a detainee testified that he had not seen signs indicating detainees should sleep head to toe in order to reduce the risk of COVID-19 and was unable to access the information about COVID-19 on his tablet. Doc. no. 193 at 26, 30.
With regard to cleaning, although respondents have made efforts to improve procedures at SCHOC, some of the detainees who clean common spaces in the unit have not received training, doc. no. 193 at 19, and the common showers remain “dirty” and are only cleaned once a day. Id. at 20-21; see also doc. no. 194 at 18-19 (Superintendent Brackett acknowledged that showers are moldy and that SCHOC was taking steps to try to address the situation).
While policies are in place to confine inmates to particular units, the facility does not keep officers assigned to consistent locations within the facility. This practice is
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inconsistent with the CDC interim guidance and a CDC Detention Report, which encourage facilities to “[a]ssign staff members to consistent locations” in order to prevent spread of COVID-19 within the facility. See Resp. Ex. E; CDC, Megan Wallace et al, COVID-19 in Correctional and Detention Facilities- United States, February-April 2020, 69 Morbidity & Mortality Weekly Report 587, 587-90 (May 15, 2020).6
A major shortcoming at SCHOC is that testing is not required for asymptomatic employees. Given that SCHOC does not restrict employees to particular units, its failure to test all employees could potentially cause asymptomatic carriers to spread the virus within the facility.
In addition, testing of asymptomatic inmates for COVID-19 is nonexistent. For example, ICE detainees, pretrial detainees, and criminal inmates entering SCHOC are not tested for COVID-19. Moreover, although CDC guidance instructs, “[i]f at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started,” Superintendent Brackett testified he is unable to follow this guidance due to “design constraints of the facility.”7 Doc. no.
6 Available at: https://www.cdc.gov/mmwr/volumes/ 69/wr/pdfs/mm6919e1-H.pdf. (last accessed July 1, 2020).
7 Superintendent Brackett testified that he attempts to house individuals in single cells during quarantine when possible. Doc. no. 115 at 49-50. If SCHOC needs to put two individuals in the same cell, Superintended Brackett attempts to
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116 at 20; Resp. Ex. 5 at 20 from May 1, 2020 hearing. Therefore, an individual entering the facility with asymptomatic COVID-19 could infect other quarantined inmates who may be reaching the end of their quarantine period. So long as these individuals remained asymptomatic, they would be released from quarantine to the general population at SCHOC without additional testing. This is one way in which COVID-19 could spread throughout SCHOC.
At the May 29 evidentiary hearing, Alan Greenbaum testified that ICE was not testing asymptomatic detainees because widespread testing of asymptomatic individuals was “not recommended by the CDC.” See doc. no. 193 at 144, 179-80, 183; see also Resp. Ex. JJ. However, on June 13, 2020, the CDC reversed course and issued new guidance recommending “testing for asymptomatic individuals” in “correctional and detention facilities.” CDC, Overview of Testing for SARS-CoV-2, (revised June 13, 2020) https://www.cdc.gov/coronavirus/2019ncov/hcp/testingoverview.html (last accessed July 1, 2020). This new CDC guidance8 states:
Certain settings can experience rapid spread of SARSCoV-2, resulting in substantial adverse effects. This “double people up in close conjunction with those that have been brought in and incarcerated at the same time.” Id. 8 The CDC Guidance refers to SARS-CoV-2. To be clear, SARSCoV-2 is the virus that causes the disease commonly referred to as “COVID-19.” In this order, the court uses the term COVID-19 broadly, to be inclusive of both the virus and the disease.
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is particularly true for settings that house vulnerable populations in close quarters for extended periods of time (e.g., long-term care facilities, correctional and detention facilities) and/or settings where critical infrastructure workers (e.g., healthcare personnel, first responders) may be disproportionately affected.
A strategy aimed at reducing introduction of SARS-CoV2 into the setting through early identification could reduce the risk of widespread transmission in these situations.
Facilities are encouraged to work with local, territorial, and state health departments to help inform decision-making about broad-based testing. Before testing large numbers of asymptomatic individuals without known or suspected exposure, the facility should have a plan in place for how it will modify operations based on test results.
Approaches for early identification of asymptomatic individuals include:
• Initial testing of everyone residing and/or working in the setting,
• Regular (e.g., weekly) testing of everyone residing and/or working in the setting, and
• Testing of new entrants into the setting and/or those re-entering after a prolonged absence (e.g., one or more days)
At the May 1 evidentiary hearing, Superintendent Brackett
testified that he considered CDC guidance about responding to
the risk of COVID-19 in detention facilities to be his “bible”
as he “tried to navigate proper operation of the facility.”
Doc. no. 115 at 96. Now that the CDC has issued new guidance
recommending testing of asymptomatic staff and inmates in
detention facilities, the court is confident that respondents
will rely on the updated CDC recommendations to develop new
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testing protocols. This is especially true where testing availability in New Hampshire has “expanded to anyone in NH who wants a test.” See New Hampshire Department of Health and Human Services, Testing Guidance, https://www.nh.gov/covid19/ resources-guidance/testing-guidance.htm (last visited July 1, 2020).
3. Lower-risk detainees have not demonstrated that they are likely to succeed Having carefully considered respondents’ approach to
reducing the risks associated with COVID-19 at SCHOC and having weighed the totality of the facts in the record at this early stage, the court is not persuaded that petitioners are likely to show that respondents have “recklessly failed to act with reasonable care” in response to substantial health risks. Charles, 925 F.3d at 87 (emphasis in original, internal quotation marks omitted). Although respondents’ measures to reduce the risk of COVID-19 within SCHOC have been imperfect, petitioners have not demonstrated that respondents recklessly failed to act with reasonable care to mitigate the risk COVID-19 presents to lower-risk detainees at SCHOC. See id.
Other courts have reached the same conclusion considering claims and facts similar to those present here. For example, in C.G.B. v. Wolf, the court concluded that detainees who did not have a medical condition that put them at high-risk from COVID-
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19 had failed to establish a likelihood of success on the merits where detention facilities were substantially complying with ICE’s COVID-19 Pandemic Response Requirements. C.G.B. v. Wolf, No. 20-CV-1072 (CRC), 2020 WL 2935111, at *25 (D.D.C. June 2, 2020). Courts have also reached this conclusion under the Eighth Amendment deliberate indifference standard. See Baez, 2020 WL 2527865, at *7, n.8 (finding standard not met where detention facility had adopted many measures and policies to reduce risk of COVID-19); Awshana v. Adducci, No. 20-10699, 2020 WL 1808906, at *14 (E.D. Mich. Apr. 9, 2020) (finding standard not met where petitioners were lower-risk, facility had followed CDC guidance to reduce the risk of COVID-19, and no detainees or staff had tested positive).
In contrast, those courts that have found the post-Kingsley standard met by lower-risk detainees have involved more egregious facts. See Ahlman v. Barnes, No. SACV20835JGBSHKX, 2020 WL 2754938, at *12 (C.D. Cal. May 26, 2020) (finding postKingsley standard met where rates of COVID-19 were “skyrocketing” and 369 inmates had tested positive for COVID19); Zepeda Rivas v. Jennings, No. 20-CV-02731-VC, 2020 WL 2059848, at *2, n.6 (N.D. Cal. Apr. 29, 2020) (finding postKingsley standard met where ICE had only recently begun taking “modest measures” and respondents had yet to identify detainees with health vulnerabilities).
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A critical factor driving the court’s conclusion is the court’s confidence in Superintendent Brackett, who testified at both evidentiary hearings. Superintendent Brackett is credible; he is willing to admit the flaws and does not exaggerate the successes in his approach. He is devoted to the cause of keeping those in his custody safe; he reads the guidance from the CDC and makes decisions based on that guidance. While the court wishes Superintendent Brackett had not deferred to others on the question of how best to protect the high-risk detainees, petitioners have not demonstrated that respondents’ approach to lower-risk detainees is—on balance—objectively unreasonable.
For all these reasons, the court denies petitioners’ request to grant lower-risk detainees bail hearings pending a ruling on the merits.
CONCLUSION For the foregoing reasons, petitioners’ motion for expedited bail hearings (doc. no. 9) is denied with regard to lower-risk detainees. Several motions remain pending before the court: petitioners’ amended petition for writ of habeas corpus and class complaint (doc. no. 5); petitioners’ motion for a preliminary injunction (doc. no. 7); and petitioners’ motion to certify the class (doc. no. 14). Since petitioners filed these
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motions in April, there have been significant factual and procedural developments in this case. Therefore, the court gives the parties until July 15 to supplement their pleadings to address subsequent developments. The court invites the parties to address whether petitioners’ motion for a preliminary injunction (doc. no. 7) has been mooted by respondents’ decision to stop transfers from other ICE detention facilities. The parties may also supplement their class certification pleadings. Finally, the court orders the parties to file a status report on or before July 15, stating their joint or separate positions regarding how, and on what schedule, this matter should proceed on the merits.
SO ORDERED.

July 1, 2020 cc: Counsel of Record.

__________________________ Landya McCafferty United States District Judge

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 Case 1:20-cv-00453-LM Document 293 Filed 09/28/20 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robson Xavier Gomes
v.
US Department of Homeland Security, Acting Secretary, et al.

Civil No. 20-cv-453-LM Opinion No. 2020 DNH 168 P

O R D E R Before the court is respondents’ motion, doc. no. 234, seeking partial reconsideration1 of the court’s order issued June 16, 2020, doc. no. 204, denying their motion to dismiss, doc. no. 128. Citing the United States Supreme Court’s recent opinion in Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020), issued on June 25, respondents seek reconsideration of this court’s conclusion that petitioners’ conditions-of-confinement claims may be brought in a 28 U.S.C. § 2241 habeas petition. For the reasons discussed below, respondents’ motion is denied.

I. Standard of Review A party moving for reconsideration of an order must “demonstrate that the
order was based on a manifest error of fact or law.” LR 7.2(d). “[M]otions for

1 Although the respondents’ motion is styled simply as a “Motion for Reconsideration” of the court’s June 16 order, they argue only that the court should reconsider a portion of that order, specifically the court’s conclusion that petitioners’ claims were cognizable in a habeas petition.

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reconsideration are appropriate only in a limited number of circumstances: if the moving party presents newly discovered evidence, if there has been an intervening change in the law, or if the movant can demonstrate that the original decision was based on a manifest error or law or was clearly unjust.” Dionne v. Fed. Nat’l Mortg. Ass’n, 110 F. Supp. 3d 338, 341 (D.N.H. 2015)) (quoting United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009)).
II. Discussion A. Thuraissigiam’s Suspension Clause Analysis Sheds Little Light on Whether Conditions of Confinement Claims May be Brought in Habeas Petitions Respondents argue that the United States Supreme Court’s recent opinion in
Thuraissigiam limits the relief available in habeas actions to “simple release.” Because petitioners do not seek “simple release,” but rather conditional release premised upon the continued threat of COVID-19, respondents contend petitioners have not stated cognizable habeas claims.
Thuraissigiam is inapposite. There, a Sri Lankan national apprehended at the United States-Mexico border filed a habeas petition following an asylum officer’s determination that he lacked a credible fear of persecution and was thus ineligible for asylum or other removal relief. See Thuraissigiam, 140 S. Ct. at 1967-68. His habeas petition sought judicial review of the officer’s credible fear determination and sought “a writ of habeas corpus . . . directing [the Department] to provide [him]
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a new opportunity to apply for asylum.” Id. at 1968. The District Court dismissed his petition, holding that 8 U.S.C. § 1252(e)(2) foreclosed habeas review of the asylum eligibility determination itself. See id.; 8 U.S.C. § 1252(e)(2) (limiting habeas challenges to asylum eligibility determinations to review of (1) whether the petitioner is actually an alien, (2) whether the petitioner was, in fact, ordered to be removed, and (3) whether the petitioner has already been granted entry as a lawful permanent resident, refugee, or asylee). The District Court also concluded that § 1252(e)(2)’s limitation on the scope of habeas actions did not violate the Suspension Clause of the United States Constitution. See Thuraissigiam, 140 S. Ct. at 1968; see also U.S. Const. art. I, § 9, cl. 2. Although the Ninth Circuit reversed, the Supreme Court ultimately agreed with the District Court.
In determining whether § 1252(e)(2) violated the Suspension Clause, the Supreme Court looked to the scope of the writ of habeas corpus “as it existed in 1789,” explaining that the Clause, “at a minimum,” protects the writ as it existed at the time of the Constitution’s founding. Thuraissigiam, 140 S. Ct. at 1969; see id. at 1969-74. The Court held that § 1252(e)(2) did not violate the Suspension Clause as applied to Thuraissigiam because there was no historical evidence that the type of relief he sought—an order to provide a foreign citizen with additional administrative review of his or her eligibility to remain in the country—was understood to be available in habeas actions in 1789. See id. at 1969.
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Thuraissigiam has little applicability to the instant case. Section 1252(e)(2) does not apply;2 petitioners are not seeking review of asylum eligibility determinations. Nor is the Supreme Court’s Suspension Clause analysis particularly relevant in analyzing whether conditions-of-confinement claims may be brought in § 2241 petitions. The Court’s Suspension Clause analysis concerns the scope of the common law habeas writ at the time of the Constitution’s founding, whereas this case concerns the scope of habeas relief available pursuant to 28 U.S.C. § 2241.
Even if Thuraissigiam’s Suspension Clause analysis were relevant, that analysis supports, rather than undermines, this court’s conclusion that conditionsof-confinement claims are cognizable in § 2241 petitions. The Supreme Court’s analysis primarily looked to the type of relief sought as the touchstone for determining whether a habeas petition would have been cognizable at common law in 1789. See id. at 1971-72. As the Court noted, “habeas was used to seek release from detention in a variety of circumstances,” and the unifying feature of those varied petitions was the relief sought: “release from restraint.” Id. at 1971; see also id. at 1972 (noting historical evidence that “habeas petitioners were sometimes released on the condition that they conform to certain requirements”; distinguishing Thuraissigiam’s petition because “[w]hat he wants—further review of his asylum claim—is not” conditional release). Here, petitioners, who are civil immigration
2 Respondents seem to concede as much in their memorandum. See doc. no. 234-1 at 3.
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detainees, seek release from confinement—conditional or otherwise. Unlike the habeas petitioner in Thuraissigiam, they are not using habeas to obtain further review of their eligibility for removal. Thus, if anything, Thuraissigiam’s focus on the relief sought, rather than the claims brought, in determining the historical cognizability of habeas petitions supports the conclusion that petitioners’ conditions-of-confinement claims may be brought in a habeas petition.
For these reasons, Thuraissigiam does not require this court to reconsider its June 16 order denying respondents’ motion to dismiss. See Dionne, 110 F. Supp. 3d at 341; LR 7.2(d).
B. Respondents’ Remaining Arguments Largely Rehash their Motion to Dismiss and do not Otherwise Demonstrate Manifest Legal Error
Respondents also contend that reconsideration is warranted because the “habeas petition . . . challenges the conditions of [petitioners’] confinement” rather than the fact of their confinement. Doc. no. 234-1 at 7. This is the same argument that the court considered and rejected in its June 16 order and warrants no further consideration. See Peterson v. Wrenn, No. 14-CV-432-LM, 2017 WL 1743598, at *1 (D.N.H. May 4, 2017) (“A motion for reconsideration is not a mechanism to regurgitate old arguments previously considered and rejected.” (internal quotation marks omitted)).
Respondents further contend that the court erred in concluding that petitioners could seek, and are seeking, a “quantum change” in their level of custody in a habeas petition under First Circuit precedent. See Gonzalez-Fuentes v. Molina,
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607 F.3d 864, 873 (1st Cir. 2010). As noted in the court’s June 16 order, however, respondents failed to cite to any First Circuit opinions in arguing that habeas was an improper vehicle for petitioners’ claims. See id.; United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006); Brennan v. Cunningham, 813 F.2d 1, 4 (1st Cir. 1987); Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977). A motion to reconsider cannot be used to advance “arguments that could and should have been presented earlier.” Peterson, 2017 WL 1743598, at *1 (internal quotation marks omitted). There appears to be no reason why respondents could not have presented argument on First Circuit case law at the time they filed their motion to dismiss. Nevertheless, even assuming respondents may properly raise the argument now, they have not demonstrated that the court’s conclusion that petitioners are permissibly seeking a “quantum change” in their level of custody is “based on manifest error of law or was clearly unjust.” Dionne, 110 F. Supp. 3d at 341. The court thus declines to reconsider its order on these grounds.
Respondents’ final argument takes issue with the court’s observation that the petitioners may have an equitable cause of action distinct from habeas. Respondents have failed to demonstrate that this observation was “based on manifest error of law or was clearly unjust.” Id. see Simmat v. United States Bureau of Prisons, 413 F.3d 1225, 1231-33 (10th Cir. 2005) (discussing judiciary’s inherent authority to entertain actions seeking to enjoin constitutional violations); Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 2404923, at *3 (D. Mass. May 12, 2020). As such, the court declines to reconsider its June 16 order on these grounds.
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Case 1:20-cv-00453-LM Document 293 Filed 09/28/20 Page 7 of 7 In summary, respondents misapply Thuraissigiam to this case and have otherwise failed to demonstrate that reconsideration is warranted. Their motion for reconsideration is therefore denied. SO ORDERED.
__________________________ Landya McCafferty United States District Judge September 28, 2020 cc: Counsel of Record
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