Case 1:20-cv-01803 Document 1 Filed 02/28/20 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

JOSE L. VELESACA, on his own behalf and on behalf of others similarly situated,
Petitioners-Plaintiffs,
v.
THOMAS R. DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; MATTHEW ALBENCE, in his official capacity as the Acting Director for U.S. Immigration and Customs Enforcement; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; CARL E. DUBOIS, in his official capacity as the Sheriff of Orange County,
Respondents-Defendants.

Case No. 1:20-cv-01803
CLASS PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. This civil rights case challenges the federal government’s unlawful, prolonged jailing of thousands of people arrested in the New York City area for civil immigration offenses. Federal law requires that many of the individuals arrested by immigration authorities receive, within 48 hours of arrest, individualized determinations about whether to be released while their immigration proceedings go forward. For years large percentages of those arrested in the New York City area were quickly granted release. With the arrival of the Trump Administration, however, federal immigration officials in New York City dramatically changed their practices, adopting what is in effect a blanket policy of denying release and bond across the board. This policy—which this complaint refers to as the “No-Release Policy”—violates the legal requirement that ongoing
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detention be based on assessment of each individual’s situation. The No-Release Policy is particularly egregious in light of the fact that the government’s own data reveal that many of the jailed individuals present little or no threat to public safety or risk of flight. According to data obtained by the New York Civil Liberties Union under the Freedom of Information Act, from 2013 to June 2017, approximately 47% of those deemed to be low risk by the government were granted release. From June 2017 to September 2019, that figure plummeted to 3%. This dramatic drop in the release rate comes at a time when exponentially more people are being arrested in the New York City area and immigration officials have expanded arrests of those not convicted of criminal offenses. The federal government’s sweeping detention dragnet means that people who pose no flight or safety risk are being jailed as a matter of course—in an unlawful trend that is getting worse.
2. Implementation of the No-Release Policy was accompanied by a modification to a riskassessment tool that immigration officers across the country have used since 2013 to assist with release decisions. By mid-2017, ICE had changed the tool’s algorithm to prevent it from recommending that people be released on bond or their own recognizance. Instead, the altered tool can recommend only that an individual be detained without bond or refer the decision to an ICE supervisor, who in ICE’s New York Field Office, will almost inevitably order the person detained without bond. Since the 2017 change in the risk-assessment tool, when it recommends detention, the New York Field Office effectively treats that recommendation as binding, departing from it in less than one percent of cases.
3. Once denied release under the new policy, people remain unnecessarily incarcerated in local jails for weeks or even months before they have a meaningful opportunity to seek release in a hearing before an Immigration Judge. While waiting for those hearings, those detained suffer
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under harsh conditions of confinement akin to criminal incarceration. While incarcerated, they are separated from families, friends, and communities, and they risk losing their children, their jobs, and their homes. Because of inadequate medical care and conditions in the jails, unmet medical and mental-health needs often lead to serious and at times irreversible consequences. And once hearings before Immigration Judges finally do take place, approximately 40% of people detained by ICE are granted release on bond.
4. The petitioner-plaintiff Jose Velesaca is one of the thousands of people whom ICE officials in New York City have denied an individualized custody determination. Like the rest of the proposed class, he will have spent weeks in detention before being provided a meaningful opportunity to seek release before an Immigration Judge. Mr. Velesaca was arrested on January 30, 2020, and was detained pursuant to the No-Release Policy. He is currently detained at the Orange County Correctional Facility, where ICE rents bed space.
5. The respondents-defendants are responsible for the policy of denying release to virtually everyone the New York Field Office arrests. The policy, which has grievously harmed thousands of people, violates the Immigration and Nationality Act and its implementing regulations, the Due Process Clause of the Fifth Amendment to the United States Constitution, the Administrative Procedure Act, and the Rehabilitation Act. The petitioners seek declaratory and injunctive relief to end respondents’ unlawful policy and the enormous and unnecessary harm it inflicts.
PARTIES 6. Petitioner Jose Velesaca was arrested by ICE, denied release pursuant to 8 U.S.C. § 1226(a) by ICE’s New York Field Office, and is currently detained at the Orange County Correctional Facility, within the Southern District of New York. ICE has ordered the petitioner detained without bond pursuant to the No-Release Policy.
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7. Respondent UNITED STATES DEPARTMENT OF HOMELAND SECURITY (“DHS”) is the federal agency responsible for arresting, detaining, and prosecuting people suspected of civil immigration violations, including the petitioners.
8. Respondent CHAD WOLF is the Acting Secretary of DHS. All sub-components of DHS are subject to his control and direction, and he is responsible for the administration and enforcement of the immigration laws pursuant to 8 U.S.C. § 1103(a). Respondent Wolf routinely transacts business in the Southern District of New York and is a legal custodian responsible for the arrest and detention of the petitioners. He is sued in his official capacity.
9. Respondent UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT is a subcomponent of DHS responsible for arresting, detaining, and prosecuting people suspected of civil immigration violations, including the petitioners.
10. Respondent MATTHEW ALBENCE is the Acting Director of ICE. ICE is subject to his control and direction, and he is responsible for the administration and enforcement of the immigration laws. Respondent Albence routinely transacts business in the Southern District of New York and is a legal custodian responsible for the arrest and detention of the petitioners. He is sued in his official capacity.
11. Respondent THOMAS R. DECKER is the director of ICE’s New York Field Office, which is responsible for ICE activities in New York City and in Dutchess, Nassau, Orange, Putnam, Rockland, Suffolk, Sullivan, Ulster, and Westchester Counties. Respondent Decker’s place of business is in the Southern District of New York, and he is an immediate legal custodian responsible for the arrest and detention of the petitioners. He is sued in his official capacity.
12. Respondent CARL DUBOIS is the Sheriff of Orange County and the official in charge of the Orange County Correctional Facility, which detains individuals suspected of civil
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immigration violations pursuant to a contract with ICE. Respondent DuBois is the immediate physical custodian responsible for the detention of the petitioner Jose Velesaca. He is sued in his official capacity.
FACTS 13. The petitioner and the putative class are people in immigration detention arrested by ICE’s New York Field Office who are detained pursuant to Section 1226(a) of Title 8 of the United States Code and whom ICE has denied bond or release on recognizance pursuant to the recently adopted No-Release Policy. Under the policy virtually all persons arrested by immigration authorities in the New York City area are denied bond or release without an individualized determination. 14. For people arrested within the jurisdiction of the New York Field Office, ICE’s post-arrest processing, including the initial custody determination, generally occurs at the ICE offices in New York City at 201 Varick Street or at 26 Federal Plaza. 15. People who are denied release or bond by the New York Field Office are generally held at one of four county jails that contract with ICE: the Orange County Correctional Facility in New York and the Hudson County Correctional Facility, Bergen County Jail, and Essex County Correctional Facility in New Jersey (collectively “ICE’s New York City-area facilities”).
Respondents’ Initial Custody-Determination Process 16. Under the Immigration and Nationality Act, many of the people whom ICE detains in the interior of the United States are eligible to be released from custody during the pendency of their immigration proceedings. The implementing regulations delegate the Attorney General’s authority to grant bond or conditional parole to ICE officers. 8 C.F.R. § 1236.1. As part of this discretionary process, the officer must make an individualized determination about the appropriateness of release based on two factors: that “such release would not pose a danger to
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property or persons, and that the alien is likely to appear for any future proceeding.” In making this determination, ICE also must consider special vulnerabilities such as disabilities, as it has done in the past. ICE officers are required to make this initial custody determination within 48 hours of arresting someone.
17. In 2013, ICE implemented a risk-assessment tool to assist its officers to make these initial custody determinations. ICE officers input information about the arrested person into the tool, which was originally programmed to generate one of four recommendations: (1) release the person on their own recognizance; (2) authorize release of the person upon posting of bond in a specified amount; (3) defer the decision to the ICE supervisor, or (4) order the person detained. ICE officers and supervisors then determined whether to affirm or override this recommendation.
18. ICE memorializes its custody decision on Form I-286, Notice of Custody Determination, which the agency serves on the detained person. At no point in ICE’s post-arrest processing or custody review do detained people have a meaningful opportunity to participate in the decision or to contest their custody status: detained people are not provided a hearing, are not served with the underlying evidence against them, are not provided any resources or materials explaining how they might challenge the custody decision, and are not given access to counsel during this initial processing.
ICE Implements the No-Release Policy 19. ICE began to alter its custody determinations process in 2015, modifying its riskassessment tool so that it could no longer recommend individuals be given the opportunity for release on bond. In mid-2017, ICE then removed the tool’s ability to recommend release on recognizance. As a result, the assessment tool—on which ICE offices across the country rely— can only make one substantive recommendation: detention without bond.
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20. In 2017, the New York Field Office doubled down on detention and implemented a blanket policy of denying bond or release without an individualized determination of whether detention was necessary based on flight or safety risks. This policy shift and the reliance on the manipulated risk-assessment tool lead to a categorical denial of bond or release in virtually all cases.
21. Even for individuals who are plainly eligible for release, the New York Field Office makes virtually no exceptions to the No-Release Policy. Though ICE officers may only deny release or bond based on two criteria—risk of flight and danger to the community—the New York Field Office now routinely denies release to people whom ICE’s own risk-assessment tool has classified as a low risk of both flight and danger to the community. Between mid-2017, when ICE altered the assessment tool, to September 2019, ICE detained approximately 97% of this low-risk population. The result is that hundreds of people for whom detention is unjustified are being unlawfully deprived of their liberty.
22. Prior to these changes in policy, the New York Field Office conducted individualized custody determinations in many cases, releasing significant numbers of people who posed no risk of flight or danger to the community. In 2013 and 2014, about 40% of all people arrested by immigration officials in the New York City area were released or granted bond; between mid-2017 to September 2019, less than 2% were released on recognizance and under one-tenth of 1% had bond set.
23. The sharp drop in release rates is even more dramatic given the Trump Administration’s shift in focus to arresting people with no criminal history and who have resided in the United States for years. Specifically, the No-Release Policy came at a time that the Administration implemented a “zero tolerance” policy that rescinded the Obama Administration’s immigration enforcement priorities, which had focused on apprehending noncitizens based on their criminal histories.
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Instead, the current policy states that ICE will “no longer exempt classes or categories of removable aliens from potential enforcement.” As a result, during the administration’s first year in office alone, there was a 334% spike in ICE arrests of noncitizens in New York City with no criminal convictions who have resided in the United States for ten or more years. By the end of 2018, the number of people without criminal convictions arrested by ICE in the New York City area had skyrocketed by 414% from 2016. The percentage of people without criminal convictions constituted an even larger portion of overall arrests in 2019: 36% versus 13% in 2016. If the New York Field Office were actually conducting individualized determinations pursuant to its stated criteria, the percentage of people released should have actually increased since 2017 because more people arrested qualified for release.
24. In addition to this change in enforcement priorities, the Trump Administration has vastly expanded its enforcement actions. Since President Trump has taken office, the number of ICE arrests in the New York City area has risen by over one third.
25. As a result of the convergence of these three separate, but related, policy changes, the New York Field Office is now arresting record levels of immigration detainees and ordering them detained without bond, even though an increasing number of them present no danger to the community or risk of flight. In fact, once people detained by ICE receive a bond hearing in front of an Immigration Judge in New York City, approximately 40% ultimately are granted bond.
26. The New York Field Office has provided no explanation—or even acknowledgement—of this sweeping policy change.
Detention Following Denial of Release 27. People who are not released remain incarcerated, at a minimum, until their first appearance before an Immigration Judge. Recently, the average time between a person’s arrest and their initial
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hearing has fluctuated between several weeks and nearly three months. These hearings take place at the Varick Street Immigration Court, where people detained by the New York Field Office appear by videoconference from the county jail where they are being detained. This initial appearance is generally the earliest point at which a person can request a custody redetermination from the Immigration Judge and win release on bond.
28. For many detained people, however, this first master calendar hearing does not provide a meaningful opportunity to seek bond, particularly if they are not represented by counsel prior to the hearing.
29. A significant percentage of people in immigration detention in the New York City area cannot afford a private attorney or are unable to retain one, and must therefore rely on an attorney from the New York City-sponsored New York Immigrant Family Unity Project (NYIFUP) for representation in their initial immigration proceedings. NYIFUP attorneys are rarely able to identify people detained by ICE until the person’s first hearing in immigration court, called an “initial master calendar hearing.” Moreover, because of the difficulty of researching and contacting private attorneys while incarcerated, it can take a long time to find and retain private counsel. Thus, many people who are arrested by ICE’s New York Field Office do not have an attorney during the time they are detained awaiting their first appearance before an immigration judge.
30. There are many reasons that a detained person may not be able to go forward with an application for bond at the initial appearance, particularly if they do not have counsel beforehand. First, assembling a bond application is factually and legally complex as well as time-intensive, almost always involving supporting evidence that includes letters of support and an initial application for immigration relief with supporting evidence. As explained above, many people do
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not have counsel until this initial hearing or shortly before it, and it would be exceptionally difficult to collect the necessary documents while incarcerated without assistance of counsel. Moreover, the government does not provide people in detention with information about the materials they would need to submit for a bond application nor how they might do so.
31. Second, ICE often does not provide relevant evidence supporting its charges until the initial hearing.
32. Third, these hearings are held by videoconference, which makes it difficult for NYIFUP attorneys who have only just met their prospective clients to have the confidential attorney-client communications necessary to prepare an application for bond or immigration relief. Moreover, people in immigration detention are often not given a confidential space in the county jails while appearing in court by video conference, meaning it can be uncomfortable or even unsafe for them to discuss or testify about sensitive information relevant to their bond application or application for immigration relief, such as sexual orientation or gender identity, experiences of violence or rape, medical or mental health diagnoses, cooperation with law enforcement, or violence and discrimination in the jail.
33. Fourth, a significant number of people in immigration detention speak little or no English, which is a further challenge to preparing the necessary documents and participating in the hearing.
34. For these reasons, it would be extremely difficult for most people to prepare a bond application without counsel by their first master calendar hearing and many Immigration Judges expressly recommend that individuals wait until they have met with an attorney before going forward with a bond hearing.
35. As a result, people often continue to be detained pursuant to ICE’s initial custody decision for a significant period of time beyond this initial hearing.
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Harms of Detention 36. Immigration detention severely and irreparably harms detained people in numerous ways. 37. Detention is devastating for those detained and their families. Immigration detainees are held in jails under the same restrictions as people held on criminal charges or serving criminal sentences. Most people arrested by local immigration authorities have lived in this country for long periods, live with their families, and are deeply integrated into local communities. On average, people arrested by the New York Field Office have lived in the United States for sixteen years when ICE arrests them. Almost a third (30%) are legal permanent residents. Approximately half (47%) of people arrested by immigration officials in the New York City area have children living with them in the United States. Most of those parents have two children, and most of their children (86%) have some form of legal status, primarily U.S. citizenship. Extended detention separates children from their parents and can devastate families. Contact with families through phone calls and visits at these facilities are limited and often prohibitively expensive. 38. Detention also threatens people who need medical care. The medical and mental-health care available at ICE’s New York City-area facilities is grossly inadequate and has led to severe negative consequences for detainees’ health and, in some cases, has even led to death. ICE’s New York City-area facilities have a track record of denying detainees access to vital medical treatment, including dialysis and blood transfusions; subjecting detainees to weeks- and months-long delays in providing access to necessary medications, care, and even vital surgeries; ignoring repeated complaints and requests for care from detainees with serious symptoms or acute pain; refusing to continue effective treatments that detainees were receiving prior to detention, including for people with chronic conditions such as HIV, cancer, or diabetes; and failing to provide interpretation and translation services for detainees with limited English proficiency who seek medical care.
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39. Detention also has detrimental impacts on the mental health of many detainees. People are detained at New York City-area detention facilities who suffer from emotional distress including but not limited to anxiety, depression, bipolar disorder, schizophrenia, stress, and Post-Traumatic Stress Disorder, as well as cognitive impairments. Detention is also a stressor that often exacerbates pre-existing symptoms. A significant number of detainees report suicidal ideation. These harms are often compounded by the inherent and profound uncertainty about the length of detention as well as people’s looming fear of deportation and permanent separation from their families and communities.
40. Despite these psychological harms, mental health services in New York City-area detention facilities are woefully inadequate. Many detained individuals with mental illnesses routinely are denied basic aspects of mental health care, such as access to regular professional mental health services. The situation is particularly dire for people without a diagnosis prior to detention, whose needs will often go unmet. And when individuals express suicidal thoughts, they may be placed in the equivalent of solitary confinement, which can dramatically exacerbate their conditions and place them at even greater risk.
41. This lack of care has tragic results. Hudson County Jail, where many putative class members are held, reported six inmate deaths between June 2017 and March 2018 alone, including four suicides. At Bergen County Jail in 2019, a serious mumps outbreak resulted in the quarantine of dozens of immigration detainees. A fourth jail that detains members of the putative class— Essex County Correctional Facility—was the subject of a recent shocking report by DHS’s Inspector General documenting “serious issues relating to safety, security, and environmental health that require ICE’s immediate attention.” There have been two inmate deaths at the jail since 2018; over sixty detainees have been placed on suicide watch since 2015.
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42. DHS’s own Inspector General, as well as multiple local and national nonprofit organizations, have documented and recognized the serious inadequacies in ICE’s New York Cityarea facilities’ medical and mental-health care. Collectively, these deficiencies subject detainees to the risk of serious and even life-threatening medical complications during the weeks or months before they have any genuine opportunity to seek release from an Immigration Judge.
43. While ICE has the authority to release an individual on recognizance, administrative bond, or “humanitarian parole” for health-related reasons, it is incredibly difficult to secure the release of sick individuals from detention. In fact, ICE releases very few people for health-related reasons, even when ICE is clearly failing to meet medical needs. ICE frequently ignores advocate requests for better care for clients.
44. Even if an individual with unmet needs is subsequently released, serious and possibly irreversible damage to the person’s health has often already occurred. This can result in need for emergency services, serious deterioration of an individual’s mental health, extensive hospitalizations, intensive care upon an individual’s release back into the community and permanent damage, often for issues that could have been managed with less injury, pain and cost if handled appropriately at the outset.
45. The unmet medical and mental health needs of individuals in immigration detention can also meaningfully harm their ability to apply for immigration relief, prepare a successful bond application, and participate in their removal proceedings. This includes but is not limited to excruciating pain from prior injuries like car accidents or assaults, failure to provide aids for visual or auditory disabilities, loss of teeth, severe rashes, fatigue, difficulty breathing, lack of necessary medication, severe insomnia, and dramatic weight loss caused by a medically-inappropriate diet.
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These can significantly impair an individual’s ability to perform day-to-day tasks, much less participate in the complex and difficult process of applying for bond or immigration relief.
46. The same is true with mental health disabilities or other cognitive impairments. Applying for some of the most common forms of immigration relief will often involve recalling and recounting past traumatic experiences of violence and persecution, including but not limited to gang violence, intimate-partner violence, and sexual assault. Because of the lack of adequate care, the conditions of detention, and the experience of detention itself, individuals with mental health disabilities can become increasingly symptomatic. In addition to making it hard for them to cope with even everyday activities, this decompensation makes it particularly difficult to participate effectively in their removal proceedings. In these situations it can become especially difficult and painful for people to both remember and discuss past trauma, particularly in the detail necessary to prepare a successful application for relief. Moreover, any inconsistencies or even gaps between an initial account of persecution and later accounts can result in their being found not credible, denied immigration relief, and deported.
47. Detention also has severe financial consequences for detainees. Approximately two-thirds (64%) of people arrested by the New York Field Office for removal proceedings report that they were employed at the time of their arrest by ICE, and many are the primary breadwinners for their families. Detention deprives people of their ability to earn a living and can result in losing employment and income that is necessary to support their families.
Facts Pertaining to the Petitioner-Plaintiff Jose Velesaca 48. Mr. Velesaca has lived in New York State for over a decade. He has two young children who are U.S. citizens. Several members of Mr. Velesaca’s family are also U.S. citizens or greencard holders living in New York State.
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49. On January 30, 2020, Mr. Velesaca was arrested by ICE’s New York Field Office and, upon information and belief, he is being detained pursuant to Section 1226 of Title 8 of the United States Code. After being processed by the New York Field Office, in the Southern District of New York, Mr. Velesaca was ordered detained without bond and transferred to the Orange County Correctional Facility, where ICE rents bed space. He appeared before an Immigration Judge on February 24, 2020, and was given until March 2, 2020, to consult with his attorney and prepare the materials necessary for his bond hearing.
50. Mr. Velesaca was the victim of a physical assault in 2016, when an assailant slashed him right below the chin with a broken bottle. Mr. Velesaca has a scar from this attack.
51. Mr. Velesaca continues to suffer serious psychological harm from this assault. He feels nervous and anxious most of the time. This significantly interferes with his daily life and his ability to sleep. Mr. Velesaca will wake up in the middle of the night in fear at even small sounds. When he sees other people fighting, or even arguing loudly, it reminds him of being attacked, he feels afraid, and his leg will begin to shake uncontrollably.
52. Mr. Velesaca tries hard not to think about his assault and it is difficult for him to talk about it. It is also difficult for him to talk about the psychological harm that he suffers.
53. Mr. Velesaca’s continued detention only makes these symptoms worse. He misses his children enormously and knows that they are afraid for him. His anxiety and nervousness have become significantly more severe. He experiences much more difficulty sleeping and every night he has trouble falling asleep. Some nights he is so anxious that he cannot sleep at all and will stay awake the entire night. There are a lot more noises at night in the jail where he is being held and he wakes up in fear almost every night.
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54. Being detained is almost unbearable for Mr. Velesaca. He feels sad, hopeless, and trapped. He is so desperate to get out that at times he has seriously considered giving up on his immigration case and being deported just to get out of detention.
55. Mr. Velesaca also suffers from diabetes. 56. As such, Mr. Velesaca is a qualified individual with a disability as defined in the Rehabilitation Act and its implementing regulations.
CLASS ACTION ALLEGATIONS 57. The petitioner brings this representative habeas action pursuant to Section 2241 of Title 28 of the United States Code and, alternatively, as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of himself and all other persons similarly situated. 58. The proposed class (“Petitioner Class”) is defined as follows:
All individuals eligible to be considered for bond or release on recognizance under 8 U.S.C. § 1226(a)(1)-(2) by ICE’s New York Field Office who have been or will be detained without bond. 59. A proposed subclass of persons with disabilities bringing claims under the Rehabilitation Act of 1973 and its implementing regulations (“Rehabilitation Act Subclass”) is defined as follows: All individuals with a disability, as defined by the Rehabilitation Act and its implementing regulations, who are eligible to be considered for bond or release on recognizance under 8 U.S.C. § 1226(a)(1)-(2) by ICE’s New York Field Office and who have been or will be detained without bond. 60. The proposed Petitioner Class is so numerous, and membership in the class so fluid and transitory, that joinder of all members is impracticable. In 2018, the New York Field Office denied release to more than 1,800 people that it considered eligible for release; in the first nine months of 2019, the office detained over 760 such individuals.
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61. The proposed Rehabilitation Act Subclass is so numerous, and membership in the class so fluid and transitory, that joinder of all members is impracticable. Internal ICE memos estimate that about 15% of the individuals it detains have mental health disabilities, which is consistent with reports by other organizations. The total number of people with all types of disabilities well exceeds this number.
62. Moreover, absent class certification, people in immigration detention would face a series of barriers in accessing the relief sought. A significant percentage of these people are unrepresented prior to their first appearance before an Immigration Judge. During this time period they do not receive any explanation of how they might apply for bond. Access to legal materials in detention is severely limited. A large percentage of the people do not speak and/or cannot read or write in English. Many of them have limited educational backgrounds. And a significant percent of them suffer from physical or mental impairments.
63. The petitioner’s claims are typical of those of the proposed Petitioner Class. All proposed class members are subject to the same policy: ICE denies release or bond to virtually everyone detained at its New York Field Office under Section 1226(a) and the implementing regulations.
64. The petitioner’s claims are also typical of those in the proposed Rehabilitation Act Subclass. All proposed class members are subject to the same uniform No-Release Policy and all have a disability under the definition of the Rehabilitation Act and its implementing regulations.
65. The petitioner will fairly and adequately protect the interests of both the proposed Plaintiff Class and the proposed Rehabilitation Act Subclass. The petitioner has no interests separate from those of the class with respect to the claims and issues in this case and seeks no relief other than the relief sought by the class. He is unaware of any conflicts that would preclude fair and adequate representation.
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66. Common questions of law or fact exist as to all members of the proposed Petitioner Class, including but not limited to the following: (a) whether the respondents have instituted a policy or practice of denying bond or release to virtually all immigration detainees processed through ICE’s New York Field Office without conducting individual assessment of their eligibility for release; (b) whether the respondents’ policy or practice violates the Immigration and Nationality Act and its implementing regulations; (c) whether the respondents’ policy or practice violates the Fifth Amendment to the United States Constitution; (d) whether the respondents’ policy or practice violates the Administrative Procedure Act.
67. Common questions of law or fact exist as to all members of the proposed Rehabilitation Act Subclass, including but not limited to: (a) whether the respondents have instituted a policy or practice of denying bond or release to virtually all immigration detainees processed through ICE’s New York Field Office without conducting individual assessment of their eligibility for release; (b) whether the respondents have instituted a policy or practice of denying bond or release to virtually all immigration detainees processed through ICE’s New York Field Office without considering disability; (c) whether the respondents’ policy or practice violates the Rehabilitation Act and its implementing regulations.
68. The petitioner’s claims are typical of the claims of the Petitioner Class and the Rehabilitation Act Subclass because the petitioner and the class members are, have been, or will be similarly detained by ICE’s New York Field Office subject to the same policy. Moreover, the petitioner and proposed class members will be directly injured by respondents’ policy or practice to deny release which results in weeks, and even months, of unjustified and unnecessary detention.
69. Counsel for the petitioner are experienced in complex class action, civil rights, and immigrants’ rights litigation.
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70. The fact that vulnerable class members are unlikely to be able to challenge their prepresentment detention individually, as well as considerations of judicial economy, also militate in favor of class certification.
JURISDICTION AND VENUE 71. This Court has jurisdiction under 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 2241 (habeas corpus); 28 U.S.C. § 1651 (All Writs Act); 28 U.S.C. §§ 2201–02 (Declaratory Judgment Act); 28 U.S.C. § 1361 (mandamus); 5 U.S.C. § 701 et seq. (Administrative Procedure Act); and U.S. Const., art. I, § 9, cl. 2 (Suspension Clause). 72. Venue is proper under 28 U.S.C. § 2241; 28 U.S.C. § 1391(b); and 28 U.S.C. § 1391(e) because at the time of the filing of this action the petitioner is detained in the respondents’ custody within the Southern District of New York; a substantial part of the events and omissions giving rise to these claims occurred, and continue to occur, in this district; respondents Decker and DuBois reside in this district; and the respondents are officers or employees of the United States acting in their official capacities.
CAUSES OF ACTION FIRST CLAIM
Violation of the Immigration and Nationality Act & Implementing Regulations
73. The respondents’ actions violate the Immigration and Nationality Act and its implementing regulations.
SECOND CLAIM Violation of the Due Process Clause of the Fifth Amendment to the United States
Constitution 74. The respondents’ actions violate the Due Process Clause of the Fifth Amendment to the United States Constitution.
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THIRD CLAIM Administrative Procedure Act 75. The respondents’ actions violate the Administrative Procedure Act.
FOURTH CLAIM Rehabilitation Act & Implementing Regulations 76. The respondents’ actions violate the Rehabilitation Act and its implementing regulations. PRAYER FOR RELIEF WHEREFORE, the petitioner respectfully requests that the Court: A. Assume jurisdiction over this matter; B. Certify this action as a class action on behalf of the proposed Petitioner Class and Rehabilitation Act Subclass, appoint the petitioner as a class representative, and appoint the undersigned counsel as class counsel; C. Declare that the respondents’ actions, practices, policies, and/or omissions violate the Immigration and Nationality Act and its implementing regulations, the Fifth Amendment to the United States Constitution, the Administrative Procedure Act, and the Rehabilitation Act; D. Order the respondents to conduct an individualized custody determination for Jose Velesaca and each member of the proposed class and base the decision to release on recognizance, release on bond, or detain without bond solely on considerations of risk of flight, danger to the community, and special vulnerabilities such as disabilities; E. Or, in the alternative, order the respondents to immediately release members of the proposed class;
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F. Order regular and complete reporting on the petitioner class to class counsel, including, but not limited to, reporting on the results of the ICE New York Field Office’s initial custody determinations;
G. Award reasonable attorneys’ fees and costs for this action; and H. Grant any further relief that the Court deems just and proper.
Respectfully submitted, /s/ Amy Belsher AMY BELSHER ROBERT HODGSON CHRISTOPHER DUNN MEGAN SALLOMI New York Civil Liberties Foundation 125 Broad Street, 19th Floor New York, N.Y. 10004 Tel: (212) 607-3300 abelsher@nyclu.org THOMAS SCOTT-RAILTON∗ NIJI JAIN JENN ROLNICK BORCHETTA The Bronx Defenders 360 E. 161st Street Bronx, N.Y. 10451 Tel: (718) 838-7878 tscott-railton@bronxdefenders.org Counsel for Petitioners-Plaintiffs
Dated: February 28, 2020 New York, N.Y.
∗ Law Graduate pending admission, practicing under supervision.
21

 
 U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:20-cv-01803-AKH

Velesaca v. Wolf et al Assigned to: Judge Alvin K. Hellerstein Cause: 08:1101 Immigration & Nationality Act (Definitions)

Date Filed: 02/28/2020 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Petitioner
Jose L. Velesaca on behalf of himself and on behalf of all others similarly situated

represented by Christopher Thomas Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344-3005 Fax: (212) 344-3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED

Jennifer Rolnick Borchetta The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718-838-7878 Fax: 718-665-0100 Email: jennb@bronxdefenders.org ATTORNEY TO BE NOTICED

Megan Sallomi New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10004 212-607-3399 Email: msallomi@nyclu.org TERMINATED: 02/05/2021

Niji Jain The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718-838-7878 Fax: 718-665-0100

Petitioner
Abraham Carlo Uzategui Navarro on behalf of himself and on behalf of all others similarly situated

Email: nijij@bronxdefenders.org ATTORNEY TO BE NOTICED
Robert Andrew Hodgson New York Civil Liberties Union 125 Broad St. 19th Floor New York, NY 10004 (212)-607-3317 Email: rhodgson@nyclu.org ATTORNEY TO BE NOTICED
Amy Belsher American Civil Liberties Union Foundation 125 Broad Street New York, NY 10004 212-607-3300 Email: abelsher@nyclu.org ATTORNEY TO BE NOTICED
represented by Amy Belsher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan Sallomi (See above for address) TERMINATED: 02/05/2021
Robert Andrew Hodgson (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
Chad Wolf in his official capacity as Acting Secretary of the U.S. Department of Homeland Security

represented by Brandon Matthew Waterman United States Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 (212)-637-2741 Email: brandon.waterman@usdoj.gov

Respondent Thomas R. Decker in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement
Respondent Matthew Albence in his official capacity as the Acting Director for U.S. Immigration and Customs Enforcement
Respondent United States Immigration and Customs Enforcement
Respondent United States Department of Homeland Security
Respondent Carl E. DuBois in his official capacity as the Sheriff of Orange County
Amicus State of New York State of New York

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Steven Chiajon Wu NYS Office of the Attorney General 28 Liberty Street Ste 23rd Floor New York, NY 10005 212-416-6312 Fax: 212-416-8962 Email: steven.wu@ag.ny.gov

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/28/2020
02/28/2020 02/28/2020 02/28/2020 02/28/2020
02/28/2020
02/28/2020 02/28/2020 02/28/2020

# Docket Text
1 COMPLAINT against Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf. (Filing Fee $ 400.00, Receipt Number ANYSDC18963029)Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 02/28/2020)
2 CIVIL COVER SHEET filed..(Belsher, Amy) (Entered: 02/28/2020)
3 REQUEST FOR ISSUANCE OF SUMMONS as to Thomas R. Decker, re: 1 Complaint,. Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 02/28/2020)
4 REQUEST FOR ISSUANCE OF SUMMONS as to Matthew Albence, re: 1 Complaint,. Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 02/28/2020)
5 FILING ERROR - SUMMONS REQUEST As To - REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Immigration and Customs Enforcement, re: 1 Complaint,. Document filed by Jose L. Velesaca..(Belsher, Amy) Modified on 3/2/2020 (jgo). (Entered: 02/28/2020)
6 FILING ERROR - SUMMONS REQUEST As To - REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of Homeland Security, re: 1 Complaint,. Document filed by Jose L. Velesaca..(Belsher, Amy) Modified on 3/2/2020 (jgo). (Entered: 02/28/2020)
7 REQUEST FOR ISSUANCE OF SUMMONS as to Chad Wolf, re: 1 Complaint,. Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 02/28/2020)
8 REQUEST FOR ISSUANCE OF SUMMONS as to Carl E. DuBois, re: 1 Complaint,. Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 02/28/2020)
9 MOTION to Certify Class . Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 02/28/2020)

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10 MEMORANDUM OF LAW in Support re: 9 MOTION to Certify Class . . Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 02/28/2020)
11 DECLARATION of Jose L. Velesaca in Support re: 9 MOTION to Certify Class .. Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 02/28/2020)
12 DECLARATION of David Hausman in Support re: 9 MOTION to Certify Class .. Document filed by Jose L. Velesaca. (Attachments: # 1 Exhibit A).(Belsher, Amy) (Entered: 02/28/2020)
13 DECLARATION of Sarah Deri Oshiro in Support re: 9 MOTION to Certify Class .. Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 02/28/2020)
14 DECLARATION of Robert Hodgson in Support re: 9 MOTION to Certify Class .. Document filed by Jose L. Velesaca. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19).(Belsher, Amy) (Entered: 02/28/2020)
15 NOTICE OF APPEARANCE by Amy Belsher on behalf of Jose L. Velesaca..(Belsher, Amy) (Entered: 02/28/2020)
16 NOTICE OF APPEARANCE by Robert Andrew Hodgson on behalf of Jose L. Velesaca..(Hodgson, Robert) (Entered: 02/28/2020)
17 NOTICE OF APPEARANCE by Christopher T Dunn on behalf of Jose L. Velesaca..(Dunn, Christopher) (Entered: 02/28/2020)
***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Amy Belsher. The following case opening statistical information was erroneously selected/entered: County code New York;. The following correction(s) have been made to your case entry: the County code has been modified to Orange;. (jgo) (Entered: 03/02/2020)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Alvin K. Hellerstein. Please download and review the Individual Practices of the assigned District Judge, located at https://nysd.uscourts.gov/judges/district-

03/02/2020
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judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at https://nysd.uscourts.gov/rules/ecf-related-instructions..(jgo) (Entered: 03/02/2020)
Magistrate Judge Katharine H. Parker is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: https://nysd.uscourts.gov/sites/default/files/2018-06/AO3.pdf. (jgo) (Entered: 03/02/2020)
Case Designated ECF. (jgo) (Entered: 03/02/2020)
18 ELECTRONIC SUMMONS ISSUED as to Carl E. DuBois..(jgo) (Entered: 03/02/2020)
19 ELECTRONIC SUMMONS ISSUED as to Chad Wolf..(jgo) (Entered: 03/02/2020)
20 ELECTRONIC SUMMONS ISSUED as to Matthew Albence..(jgo) (Entered: 03/02/2020)
21 ELECTRONIC SUMMONS ISSUED as to Thomas R. Decker..(jgo) (Entered: 03/02/2020)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Amy Belsher to RE-FILE Document No. 6 Request for Issuance of Summons, 5 Request for Issuance of Summons,. The filing is deficient for the following reason(s): party name on 'as to' docket entry text and the PDF 'To' section does not exactly match as it appears on pleading caption;. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (jgo) (Entered: 03/02/2020)
22 NOTICE OF APPEARANCE by Niji Jain on behalf of Jose L. Velesaca..(Jain, Niji) (Entered: 03/02/2020)
23 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Homeland Security, re: 1 Complaint,. Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 03/02/2020)

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24 REQUEST FOR ISSUANCE OF SUMMONS as to United States Immigration and Customs Enforcement, re: 1 Complaint,. Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 03/02/2020)
25 NOTICE OF APPEARANCE by Megan Sallomi on behalf of Jose L. Velesaca..(Sallomi, Megan) (Entered: 03/03/2020)
26 ELECTRONIC SUMMONS ISSUED as to United States Department of Homeland Security..(dnh) (Entered: 03/03/2020)
27 ELECTRONIC SUMMONS ISSUED as to United States Immigration and Customs Enforcement..(dnh) (Entered: 03/03/2020)
28 NOTICE OF APPEARANCE by Jennifer Rolnick Borchetta on behalf of Jose L. Velesaca..(Borchetta, Jennifer) (Entered: 03/09/2020)
29 SUMMONS RETURNED EXECUTED Summons and Complaint, served. Carl E. DuBois served on 3/9/2020, answer due 3/30/2020. Service was accepted by Carol Pierce, Chief Assistant to County Attorney; also, Paul Artera, Captain. Document filed by Jose L. Velesaca..(Belsher, Amy) (Entered: 03/10/2020)
30 SUMMONS RETURNED EXECUTED Summons and Complaint, served. Matthew Albence served on 3/4/2020, answer due 3/25/2020; Thomas R. Decker served on 3/4/2020, answer due 3/25/2020; United States Department of Homeland Security served on 3/4/2020, answer due 3/25/2020; United States Immigration and Customs Enforcement served on 3/4/2020, answer due 3/25/2020; Chad Wolf served on 3/4/2020, answer due 3/25/2020. Service was accepted by Derick Mayers, Civil Clerk. Service was made by Mail. Document filed by Jose L. Velesaca. (Attachments: # 1 Exhibit A).(Belsher, Amy) (Entered: 03/10/2020)
31 FIRST AMENDED PETITION amending 1 Complaint, against Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf.Document filed by Jose L. Velesaca, Abraham Carlo Uzategui. Related document: 1 Complaint,..(Hodgson, Robert) (Entered: 03/16/2020)
32 AMENDED MOTION to Certify Class . Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)

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33 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU (SEE 34 Memorandum) - AMENDED MOTION to Certify Class Memorandum of Law in Support of Amended Motion to Certify Class. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) Modified on 4/10/2020 (db). (Entered: 03/16/2020)
34 MEMORANDUM OF LAW in Support re: 32 AMENDED MOTION to Certify Class . . Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
35 DECLARATION of ABRAHAM CARLO UZATEGUI in Support re: 32 AMENDED MOTION to Certify Class .. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
36 DECLARATION of JOSE L. VELESACA in Support re: 32 AMENDED MOTION to Certify Class .. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
37 DECLARATION of DAVID HAUSMAN in Support re: 32 AMENDED MOTION to Certify Class .. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
38 DECLARATION of SARAH DERI OSHIRO in Support re: 32 AMENDED MOTION to Certify Class .. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
39 DECLARATION of ROBERT HODGSON in Support re: 32 AMENDED MOTION to Certify Class .. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit).(Hodgson, Robert) (Entered: 03/16/2020)
40 MOTION for Preliminary Injunction . Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
41 MEMORANDUM OF LAW in Support re: 40 MOTION for Preliminary Injunction . . Document filed by Abraham Carlo

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Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
42 DECLARATION of DR. JAIMIE MEYER in Support re: 40 MOTION for Preliminary Injunction .. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
43 DECLARATION of MARINDA VAN DALEN in Support re: 40 MOTION for Preliminary Injunction .. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
44 DECLARATION of ANDREA SAENZ in Support re: 40 MOTION for Preliminary Injunction .. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
45 DECLARATION of ROBERT HODGSON in Support re: 40 MOTION for Preliminary Injunction .. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
46 MOTION to Seal Motion for Leave to File Document Under Seal., MOTION for Leave to File Psychological Evaluation under seal . Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
47 MEMORANDUM OF LAW in Support re: 46 MOTION to Seal Motion for Leave to File Document Under Seal. MOTION for Leave to File Psychological Evaluation under seal . . Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/16/2020)
48 LETTER addressed to Judge Alvin K. Hellerstein from Robert Hodgson dated March 17, 2020 re: Request for expedited conference regarding the petitioners motion for a preliminary injunction. Document filed by Abraham Carlo Uzategui, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/17/2020)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Robert Andrew Hodgson. The party information for the following party/parties has been modified: Abraham Carlo Uzategui Navarro. The information for the party/parties has been modified for the following reason/reasons: party name

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contained a typographical error; party text was omitted;. (jgo) (Entered: 03/17/2020)

49 MEMO ENDORSEMENT on re: 48 Letter, filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca. ENDORSEMENT: Respondents shall file their opposition on March 23, 2020. Petitioners shall file a reply on March 25, 2020. The Court will hold a hearing on March 27, 2020 at 2:30pm. The hearing will take place by telephone and the Court will reach out to the parties with call-in information. (Responses due by 3/23/2020, Replies due by 3/25/2020., Telephone Conference set for 3/27/2020 at 02:30 PM before Judge Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on 3/18/2020) (jca) (Entered: 03/18/2020)

MEMO ENDORSED ORDER granting 46 Motion to Seal;

50

granting 46 Motion for Leave to File Document.

ENDORSEMENT: Motion granted. (Signed by Judge Alvin K.

Hellerstein on 3/18/20) (yv) (Entered: 03/18/2020)

ORDER: The telephonic hearing scheduled in this case for March

51

27, 2020, is hereby adjourned to March 30, 2020, at 2:30 p.m., and

will be held via the following call-in number: Call-in number:

888-363-4749, Access code: 7518680. To ensure that the hearing

proceeds smoothly and to avoid disruption, the Court directs all

those calling in (other than counsel) to mute their telephones. (

Telephone Conference set for 3/30/2020 at 02:30 PM before Judge

Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on

3/20/2020) (mro) (Entered: 03/20/2020)

52 NOTICE OF APPEARANCE by Brandon Matthew Waterman on behalf of Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 03/20/2020)

53 LETTER MOTION for Extension of Time to File Response/Reply as to 49 Memo Endorsement,,, Set Deadlines/Hearings,, addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated March 20, 2020. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 03/20/2020)

54 ORDER REGULATING PROCEEDINGS granting 53 Motion for Extension of Time to File Response/Reply. Defendants' motion for an extension of the briefing schedule (ECF No. 53) is granted. Accordingly, the government's opposition to the preliminary

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injunction motion is due by Tuesday, March 24, 2020, and the Plaintiffs' reply is due by Thursday, March 26, 2020. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 3/20/2020) (ks) (Entered: 03/20/2020)
Set/Reset Deadlines: Responses due by 3/24/2020 Replies due by 3/26/2020. (ks) (Entered: 03/20/2020)
55 MEMORANDUM OF LAW in Opposition re: 40 MOTION for Preliminary Injunction . . Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 ACIJ Daugherty Declaration).(Waterman, Brandon) (Entered: 03/25/2020)
56 DECLARATION of Deputy Field Office Director William P. Joyce in Opposition re: 40 MOTION for Preliminary Injunction .. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 03/25/2020)
57 DECLARATION of Captain Jennifer Moon in Opposition re: 40 MOTION for Preliminary Injunction .. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 03/25/2020)
58 LETTER addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated March 25, 2020 re: Unopposed Request to Accept the Government's Opposition Papers As Timely Filed. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 03/25/2020)
59 MEMO ENDORSEMENT on re: 58 Letter, filed by United States Immigration and Customs Enforcement, Thomas R. Decker, Carl E. DuBois, Matthew Albence, Chad Wolf, United States Department of Homeland Security. ENDORSEMENST: (Signed by Judge Alvin K. Hellerstein on 3/25/2020) (cf) (Entered: 03/25/2020)
60 REPLY MEMORANDUM OF LAW in Support re: 40 MOTION for Preliminary Injunction . . Document filed by Abraham Carlo

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Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/26/2020)

61 DECLARATION of Jose L. Velesac in Support re: 40 MOTION for Preliminary Injunction .. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/26/2020)

62 DECLARATION of Marisol Carmona Medina in Support re: 40 MOTION for Preliminary Injunction .. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/26/2020)

63 DECLARATION of Carmelo Apolinar Diaz in Support re: 40 MOTION for Preliminary Injunction .. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 03/26/2020)

64 NOTICE OF APPEARANCE by Steven Chiajon Wu on behalf of State of New York..(Wu, Steven) (Entered: 03/29/2020)

65 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION to File Amicus Brief . Document filed by State of New York. (Attachments: # 1 Exhibit Proposed Amicus Brief).(Wu, Steven) Modified on 4/24/2020 (db). (Entered: 03/30/2020)

Minute Entry for proceedings held before Judge Alvin K. Hellerstein: Preliminary Injunction Hearing (Telephone) held on 3/30/2020. (tro) (Entered: 04/06/2020)

66 MEMO ENDORSED ORDER denying as moot 65 Motion to File Amicus Brief. ENDORSEMENT: The motion having already been decided, the state's motion is denied as moot. (Signed by Judge Alvin K. Hellerstein on 3/31/20) (yv) (Entered: 03/31/2020)

ORDER GRANTING PLAINTIFFS' MOTION FOR A

67

PRELIMINARY INJUNCTION granting 40 Motion for

Preliminary Injunction. Plaintiffs' motion for preliminary

injunctive relief, see ECF No. 40, is hereby granted as follows.

The Court grants preliminary injunctive relief, enjoining

Defendant Thomas R. Decker in his official capacity as New York

Field Office Director for U.S. Immigration and Customs

Enforcement ("ICE"), and all successors appointed or acting, from

using or applying practices or policies relating to the discretion by

ICE officers to release to the community on recognizance or

pursuant to bond, under Section 236 of the Immigration and

Nationality Act, 8 U.S.C. § 1226(a), and all applicable

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implementing regulations, to any person now or hereafter arrested by Defendants or officers or agents directly or indirectly supervised by Defendants, in any manner more stringent or more onerous than those used or applied prior to June 6, 2017. This order shall not apply to any person so arrested who has had his bond or recognizance application heard by an immigration judge. Defendant shall file a report on April 17, 2020, identifying, as of April 10, 2020, all persons thus arrested by or under the authority of ICE's New York Field Office and, of such persons, all such persons who have had their bond or recognizance application heard by an immigration judge. Although the order delivered extemporaneously is final, the Court intends, in due course, to deliver a more fulsome statement of its reasoning. The Clerk is directed to terminate the open motion (ECF No. 40). SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 3/31/20) (yv) (Entered: 03/31/2020)
68 TRANSCRIPT of Proceedings re: CONFERENCE held on 3/30/2020 before Judge Alvin K. Hellerstein. Court Reporter/Transcriber: Martha Martin, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/5/2020. Redacted Transcript Deadline set for 5/15/2020. Release of Transcript Restriction set for 7/13/2020..(McGuirk, Kelly) (Entered: 04/14/2020)
69 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNECE proceeding held on 3/30/2020 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 04/14/2020)
70 ***SELECTED PARTIES*** LETTER addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated April 17, 2020 re: Government's Report in accordance with the Court's order (ECF No. 67). Document filed by United States Department of Homeland Security, Thomas R. Decker, Carl E. DuBois, Chad Wolf, Matthew Albence, Abraham Carlo Uzategui Navarro, Jose L. Velesaca, United States Immigration and Customs Enforcement. (Attachments: # 1 1226(a) Alien List)Motion or

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Order to File Under Seal: 67 04/18/2020)

.(Waterman, Brandon) (Entered:

71 LETTER addressed to Judge Alvin K. Hellerstein from the Petitioners' Counsel, Robert Hodgson dated April 27, 2020 re: Request for information regarding ICEs compliance with preliminary injunction. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 04/27/2020)

ORDER REGULATING PROCEEDINGS. The Court has

72

received and reviewed Petitioners' letter submitted April 27, 2020,

ECF No. 71, which requests an order instructing Respondents to

produce additional information in connection with the Court's

awarding Petitioners injunctive relief, ECF No. 67. Respondents

are hereby ordered to file a letter response informing the Court of

their position, on or before this Friday, May 1, 2020. SO

ORDERED. (Signed by Judge Alvin K. Hellerstein on 3/31/20)

(yv) (Entered: 04/27/2020)

73 LETTER addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated May 1, 2020 re: The government's response to the plaintiff's April 27 letter (ECF No. 71). Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 05/01/2020)

74 MOTION to Amend/Correct 67 Order on Motion for Preliminary Injunction,,,,,, To Modify and Clarify the Court's March 31 Preliminary Injunction Order. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 05/02/2020)

75 MEMORANDUM OF LAW in Support re: 74 MOTION to

Amend/Correct 67 Order on Motion for Preliminary Injunction,,,,,, To Modify and Clarify the Court's March 31 Preliminary Injunction Order. . Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 05/02/2020)

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

76 LETTER addressed to Judge Alvin K. Hellerstein from Petitioners' Counsel Robert Hodgson dated May 4, 2020, re: Petitioners Intention to File an Opposition to ICEs Motion (ECF 74) by Tuesday, May 5. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 05/04/2020)

ORDER REGULATING PROCEEDINGS, The Court has

77

received and reviewed Defendants' motion for amendment and/or

clarification of the March 31, 2020 order awarding injunctive

relief to Plaintiffs. See ECF Nos. 67, 74. Plaintiffs shall file their

opposition to the motion, if any, on or before May 15, 2020, and

Defendants shall file a reply, if any, on or before May 22, 2020.

Argument on the motion will be held telephonically on May 27,

2020, at 2:30 p.m., via the following call-in number: Call-in

number: 888-363-4749, Access code: 7518680. To ensure that the

hearing proceeds smoothly and to avoid disruption, the Court

directs all those calling in (other than counsel) to mute their

telephones. Finally, no later than May 26, 2020, at 10:00 a.m., the

parties shall jointly submit to the Court (to the address:

HellersteinNYSDChambers@nysd.uscourts.gov) a list of all

counsel expected to appear on the record at the telephonic

argument SO ORDERED. Set Deadlines/Hearing as

to 74 MOTION to Amend/Correct 67 Order on Motion for Preliminary Injunction, To Modify and Clarify the Court's March 31 Preliminary Injunction Order. :( Responses due by 5/15/2020, Replies due by 5/22/2020.), ( Telephone Conference set for 5/27/2020 at 02:30 PM before Judge Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on 5/4/20) (yv) (Entered: 05/04/2020)

OPINION & ORDER GRANTING PLAINTIFFS' MOTION FOR

78

A PRELIMINARY INJUNCTION. Plaintiffs' motion for

injunctive relief is granted as follows: The Court grants

preliminary injunctive relief, enjoining Defendant Thomas R.

Decker in his official capacity as New York Field Office Director

for U.S. Immigration and Customs Enforcement ("ICE"), and all

successors appointed or acting, from using or applying practices or

policies relating to the discretion of ICE officers to release to the

community on recognizance or pursuant to bond, under Section

236 of the Immigration and Nationality Act, 8 U.S.C. § 1226(a),

and all applicable implementing regulations, to any person now or

hereafter arrested by Defendants or officers or agents directly or

indirectly supervised by Defendants, in any manner more stringent

or more onerous than those used or applied prior to June 6,

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

2017.This order shall not apply to any person so arrested who has had his bond or recognizance application heard by an immigration judge.Defendants shall file a report on April 17, 2020, identifying, as of April 10, 2020, all persons thus arrested by or under the authority of ICE's New York Field Office and, of such persons, all such persons who have had their bond or recognizance application heard by an immigration judge.ECF No. 67. The government timely provided a report. See ECF No. 70.In the time between my oral ruling and the issuance of this written order, the parties have notified the Court that they have had disagreements regarding implementation of the injunction. See ECF Nos. 71, 72, 73. These disagreements have culminated in the government's filing of a motion to clarify and/or amend the injunction. See ECF No. 74. The Court will issue a separate order, in due course, setting a briefing schedule and an argument date on that motion.SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 5/4/20) (yv) (Entered: 05/04/2020)
79 MEMO ENDORSEMENT on re: 76 Letter Intention to File an Opposition to ICEs Motion, filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca, Set Deadlines/Hearing as
to 76 Letter, 74 MOTION to Amend/Correct 67 Order on Motion for Preliminary Injunction. To Modify and Clarify the Court's March 31 Preliminary Injunction Order. ENDORSEMENT: In light of the time-sensitive nature of the case, Petitioners will file their opposition by the end of the day on May 5, 2020. The government will then file its reply on or before May 11, 2020, and the telephonic oral argument presently set for May 2 7, 2020 is rescheduled to May 12, 2020, at 11:00am. The parties shall notify the Court of all persons expected to appear on the May 12 call by 10:00am on May 11, 2020. ( Responses due by 5/5/2020, Replies due by 5/11/2020.), ( Telephone Conference set for 5/12/2020 at 11:00 AM before Judge Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on 5/5/20) (yv) (Entered: 05/05/2020)
80 LETTER addressed to Judge Alvin K. Hellerstein from Petitioners' Counsel Robert Hodgson dated May 5, 2020, re: Request to Extend Petitioners Deadline to Thursday, May 7, 2020. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 05/05/2020)
81 MEMO ENDORSEMENT on re: 80 Letter Request to Extend Petitioners Deadline, filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca, Set Deadlines/Hearing as

05/06/2020 05/07/2020 05/13/2020
05/14/2020

to 80 Letter, 74 MOTION to Amend/Correct 67 Order on Motion for Preliminary Injunction, To Modify and Clarify the Court's March 31 Preliminary Injunction Order. ENDORSEMENT: So ordered. Petitioners' opposition brief shall now be due on May 7, 2020; Respondents' reply brief shall now be due on May 13, 2020; and the hearing previously scheduled for May 12, 2020 is rescheduled to Thursday, May 14, 2020, at 11:00am. Counsel shall, following the protocol previously outlined by the Court, submit a list of all persons who are to appear on the call by 10:00am. ( Responses due by 5/7/2020, Replies due by 5/13/2020.) (Signed by Judge Alvin K. Hellerstein on 5/6/20) (yv) (Entered: 05/06/2020)
Set/Reset Hearings: Telephone Conference set for 5/14/2020 at 11:00 AM before Judge Alvin K. Hellerstein. (yv) (Entered: 05/06/2020)
82 MEMORANDUM OF LAW in Opposition re: 74 MOTION to
Amend/Correct 67 Order on Motion for Preliminary Injunction,,,,,, To Modify and Clarify the Court's March 31 Preliminary Injunction Order. . Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 05/07/2020)
83 REPLY MEMORANDUM OF LAW in Support re: 74 MOTION
to Amend/Correct 67 Order on Motion for Preliminary Injunction,,,,,, To Modify and Clarify the Court's March 31 Preliminary Injunction Order. . Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 05/13/2020)
Minute Entry for proceedings held before Judge Alvin K. Hellerstein: Oral Argument held on 5/14/2020 re: 74 MOTION to
Amend/Correct 67 Order on Motion for Preliminary Injunction, To Modify and Clarify the Court's March 31 Preliminary Injunction Order. filed by United States Immigration and Customs Enforcement, Thomas R. Decker, Carl E. DuBois, Matthew Albence, Chad Wolf, United States Department of Homeland Security. Court reporter Karen Gorlaski pres.Motion to amend/correct is denied (doc #74). (tro) (Entered: 06/09/2020)

05/15/2020
05/22/2020 05/26/2020 05/26/2020

ORDER SUPPLEMENTING PRELIMINARY INJUNCTION

84

denying 74 Motion to Amend/Correct. Defendants' motion is

denied. The injunction is not in need of clarification. Defendants

are required to: 1. Apply the injunction to all persons who were

detained as of April 10, 2020 pursuant to 8 U.S.C. § 1226(a),

except those persons already given an individualized custody

determination by an immigration judge, and expeditiously

determine, or redetermine, their custody status consistent with the

injunction; and to 2. Report to the court on May 22, 2020, and

weekly thereafter, as to the progress made, which shall be steady

and expeditious. All custody determinations and redeterminations

must be completed by June 5, 2020. If extensions are required,

Defendants may make an application therefore, showing good

cause. The Clerk is directed to close the open motion (ECF No.

74). Although this order is final, the Court intends to file an

opinion describing its reasoning in fuller detail. SO ORDERED.

(Signed by Judge Alvin K. Hellerstein on 5/15/20) (yv) (Entered:

05/18/2020)

85 ***SELECTED PARTIES***STATUS REPORT. (Pursuant to ECF No. 84) Document filed by United States Department of Homeland Security, Thomas R. Decker, Carl E. DuBois, Chad Wolf, Matthew Albence, United States Immigration and Customs Enforcement, Abraham Carlo Uzategui Navarro, Jose L. Velesaca. (Attachments: # 1 Supplemental Alien List and Status)Motion or

Order to File Under Seal: 84 05/22/2020)

.(Waterman, Brandon) (Entered:

86 TRANSCRIPT of Proceedings re: argument held on 5/14/2020 before Judge Alvin K. Hellerstein. Court Reporter/Transcriber: Karen Gorlaski, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/16/2020. Redacted Transcript Deadline set for 6/26/2020. Release of Transcript Restriction set for 8/24/2020..(McGuirk, Kelly) (Entered: 05/26/2020)

87 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a ARGUMENT proceeding held on 5/14/2020 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available

05/29/2020 06/30/2020 07/01/2020 07/06/2020 07/06/2020
07/07/2020

to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 05/26/2020)

88 ***SELECTED PARTIES***STATUS REPORT. (Pursuant to ECF No. 84) Document filed by United States Department of Homeland Security, Thomas R. Decker, Carl E. DuBois, Chad Wolf, Matthew Albence, United States Immigration and Customs Enforcement, Abraham Carlo Uzategui Navarro, Jose L. Velesaca. (Attachments: # 1 Alien Status List)Motion or Order to File Under

Seal: 84 .(Waterman, Brandon) (Entered: 05/29/2020)

89 PROPOSED PROTECTIVE ORDER. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 06/30/2020)

STIPULATED PROTECTIVE ORDER...regarding procedures to

90

be followed that shall govern the handling of confidential

material...So ordered, as modified. See Section XII, paragraph F.

So Ordered. (Signed by Judge Alvin K. Hellerstein on 7/1/20) (yv)

(Entered: 07/01/2020)

ORDER DENYING MOTION TO MODIFY AND CLARIFY

91

PRELIMINARY INJUNCTION, Defendants' motion for

modification and clarification is denied. The parties are directed to

appear for a telephonic status conference on August 25, 2020, at

11:00 a.m., in order to chart a course for the remainder of this

litigation. SO ORDERED. ( Telephone Conference set for

8/25/2020 at 11:00 AM before Judge Alvin K. Hellerstein.)

(Signed by Judge Alvin K. Hellerstein on 7/6/20) (yv) (Entered:

07/06/2020)

92 NOTICE OF INTERLOCUTORY APPEAL from 67

Order

on Motion for Preliminary Injunction,,,,,, 91 Order,, Set

Hearings, 78 Memorandum & Opinion,,,,,,, 84 Order on Motion to Amend/Correct,,,,. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit..(Waterman, Brandon) (Entered: 07/06/2020)

Appeal Fee Not Required for 92 Notice of Interlocutory Appeal. Appeal filed by U.S. Government. (tp) (Entered: 07/07/2020)

07/07/2020 07/07/2020 08/20/2020 08/21/2020
08/25/2020 08/26/2020

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 92 Notice of Interlocutory Appeal. (tp) (Entered: 07/07/2020)

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 92 Notice of Interlocutory Appeal, filed by United States Immigration and Customs Enforcement, Thomas R. Decker, Carl E. DuBois, Matthew Albence, Chad Wolf, United States Department of Homeland Security were transmitted to the U.S. Court of Appeals. (tp) (Entered: 07/07/2020)

93 LETTER addressed to Judge Alvin K. Hellerstein from Robert Hodgson dated August 20, 2020, re: Letter In Advance of the Parties' August 25 Status Conference Identifying Issues the Petitioners Intend to Raise. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 08/20/2020)

ORDER REGULATING PROCEEDINGS. The parties are

94

instructed to access the upcoming telephonic status conference,

scheduled for August 25, 2020, at 11:00 a.m., as follows: Call-in

number: 888-363-4749, Access code: 7518680. To ensure that the

hearing proceeds smoothly and to avoid disruption, the Court

directs all those calling in (other than counsel) to mute their

telephones. Finally, no later than Monday, August 24, 2020, at

12:00 p.m., the parties shall jointly submit to the Court (via the

address: HellersteinNYSDChambers@nysd.uscourts.gov) the

names of all counsel expected to appear on the record at the

telephonic hearing. SO ORDERED. (Signed by Judge Alvin K.

Hellerstein on 8/21/20) (yv) Modified on 8/21/2020 (yv).

(Entered: 08/21/2020)

Minute Entry for proceedings held before Judge Alvin K. Hellerstein: Status Conference held on 8/25/2020, ( Status Conference set for 9/18/2020 at 11:00 AM in Courtroom 14D, 500 Pearl Street, New York, NY 10007 before Judge Alvin K. Hellerstein.). (Court Reporter Jennifer Thun) (Jones, Brigitte) (Entered: 08/26/2020)

ORDER REGULATING PROCEEDINGS, For the reasons

95

discussed on the record at the status conference held on August 25,

2020, the parties are directed to proceed as follows: Respondents

shall produce custody worksheets to Petitioners, see Government

Letter (Apr. 17, 2020), ECF No. 70, at 1 (noting implementation

of worksheets), for all putative class members, dating from June 1,

09/01/2020 09/09/2020 09/16/2020

2020 to the present, no later than September 8, 2020, and shall continue the production of such worksheets to Petitioners every 14 days thereafter. No later than September 8, 2020, Respondents shall produce to Petitioners (a) written guidance, if any, pertaining to the implementation of this Court's injunction, see ECF Nos. 67, 78, and (b) scripts and transcripts of oral guidance, if any, pertaining to implementation of the injunction, along with a list of all parties to such conversations. If no such written or oral guidance exists, Respondents shall submit a letter to the Court representing as much. No later than September 8, 2020, Respondents shall produce to Petitioners all (a) written correspondence sent by or to supervising ICE officers since March 31, 2020 discussing the training ICE officers to perform individualized custody determinations or otherwise addressing implementation of this Court's injunction, and (b) evidence of oral correspondence since March 31, 2020 concerning the same. Respondents shall produce the full administrative record to Petitioners on or before September 1, 2020. The parties are instructed to appear for a telephonic status conference at 11:00 a.m. on September 18, 2020. The call may be accessed with the call-in number 888-363-4749 and the access code 7518680. By 12:00 p.m. on September 17, 2020, the parties shall jointly submit to the Court (through the following email address: HellersteinNYSDChambers@nysd.ucrouts.gov) the names of all counsel expected to appear on the record at the hearing. SO ORDERED. ( Telephone Conference set for 9/18/2020 at 11:00 AM before Judge Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on 8/26/20) (yv) (Entered: 08/26/2020)
96 NOTICE of Filing of Administrative Record. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Part 1 of 2, # 2 Part 2 of 2).(Waterman, Brandon) (Entered: 09/01/2020)
97 LETTER addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated September 9, 2020 re: Response to the Court's August 26, 2020 Order (ECF No. 95). Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 09/09/2020)
98 TRANSCRIPT of Proceedings re: CONFERENCE held on 8/25/2020 before Judge Alvin K. Hellerstein. Court

Reporter/Transcriber: Jennifer Thun, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/7/2020. Redacted Transcript Deadline set for 10/19/2020. Release of Transcript Restriction set for 12/15/2020..(McGuirk, Kelly) (Entered: 09/16/2020)

09/16/2020

99 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 8/25/2020 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 09/16/2020)

09/16/2020

100 LETTER addressed to Judge Alvin K. Hellerstein from Petitioners' Counsel Robert Hodgson dated September 16 re: Petitioners' Letter in Advance of September 18 Status Conference. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 09/16/2020)

09/18/2020

101 LETTER addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated September 18, 2020 re: Response to the plaintiffs' letter of September 16, 2020 (ECF No. 100). Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Sample Custody Worksheet).(Waterman, Brandon) (Entered: 09/18/2020)

09/18/2020

Minute Entry for proceedings held before Judge Alvin K. Hellerstein: Status Conference held on 9/18/2020, ( Status Conference set for 10/16/2020 at 11:00 AM in Courtroom 14D, 500 Pearl Street, New York, NY 10007 before Judge Alvin K. Hellerstein.). (Jones, Brigitte) (Entered: 09/18/2020)

09/21/2020 102

ORDER, The parties are directed to proceed as follows: 1. Petitioners' request to conduct a deposition of Respondents pertaining to training received by ICE personnel with respect to implementation of this Court's injunction, see ECF Nos. 67, 78, is hereby granted. Accordingly, Petitioners shall deliver to Respondents a notice pursuant to Fed. R. Civ. P. 30(b)(6) concerning such deposition, and thereafter the parties shall meet

09/29/2020 09/29/2020 10/05/2020

and confer to determine the scope and terms of the deposition. 2. On or before October 2, 2020, Petitioners shall notify Respondents of any additional discovery requests pertaining to issues other than compliance with the Court's injunction. Thereafter, the parties shall meet and confer to attempt to resolve discovery disputes. 3. On or before October 14, 2020, the parties shall submit a joint letter to the Court describing any remaining discovery disputes. Thereafter, the parties shall appear for a telephonic hearing on October 16, 2020 at 11:00 a.m. 4. The parties are directed to appear for a status conference on November 20, 2020 at 11:00 a.m. The Court will notify the parties at a later date whether such conference will be held telephonically or in-person. SO ORDERED. ( Status Conference set for 11/20/2020 at 11:00 AM before Judge Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on 9/21/20) (yv) (Entered: 09/21/2020)
103 TRANSCRIPT of Proceedings re: CONFERENCE held on 9/18/2020 before Judge Alvin K. Hellerstein. Court Reporter/Transcriber: Lisa Smith, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/20/2020. Redacted Transcript Deadline set for 10/30/2020. Release of Transcript Restriction set for 12/28/2020..(McGuirk, Kelly) (Entered: 09/29/2020)
104 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 9/18/20 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 09/29/2020)
105 TRANSCRIPT of Proceedings re: CONFERENCE held on 9/18/2020 before Judge Alvin K. Hellerstein. Court Reporter/Transcriber: Lisa Smith, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/26/2020. Redacted Transcript Deadline set for 11/5/2020. Release of Transcript Restriction set for 1/3/2021..(McGuirk, Kelly) (Entered: 10/05/2020)

10/05/2020 10/08/2020 10/09/2020
10/09/2020 10/13/2020

106 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 9/18/20 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 10/05/2020)
107 LETTER MOTION for Extension of Time for the Paties to Submit a Joint Letter AND to Adjourn the Related Conference addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated October 8, 2020. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 10/08/2020)
108 ORDER denying 107 Letter Motion for Extension of Time. The government's motion for delay is denied. Plaintiffs' allegations relate to persons in detention who, allegedly, should not have been detained. As such, time is of the essence. The schedule built into my order of September 21, 2020 allowed the parties ample time to discuss and either agree, or disagree, to discovery demands. ECF No. 102. However, since a short enlargement of time may promote agreement, or, at least, sharpen the issues to be decided, the following revised schedule is ordered: 1. The period within which to meet and discuss, and then to submit a joint letter to the court, is enlarged to 10:00 a.m., October 19, 2020. A separate letter, submitted after the time for a joint letter has expired, will not be read. 2. Argument before the court is adjourned, from October 16, 2020 to October 21, 2020, at 2:30 p.m. Unless ordered otherwise, argument shall be made via the Court's telephone facilities. 3. These dates will not again be modified. So ordered. (Signed by Judge Alvin K. Hellerstein on 10/9/20) (yv) (Entered: 10/09/2020)
Set/Reset Hearings: Telephone Conference set for 10/21/2020 at 02:30 PM before Judge Alvin K. Hellerstein. (yv) (Entered: 10/09/2020)
109 MANDATE of USCA (Certified Copy) as to 92 Notice of Interlocutory Appeal, filed by United States Immigration and Customs Enforcement, Thomas R. Decker, Carl E. DuBois, Matthew Albence, Chad Wolf, United States Department of Homeland Security USCA Case Number 20-2153. The parties in the above-referenced case have filed a stipulation withdrawing this

10/13/2020 10/19/2020
10/19/2020
10/21/2020

appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered". Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/13/2020..(tp) (Entered: 10/13/2020)
Transmission of USCA Mandate/Order to the District Judge re: 109 USCA Mandate. (tp) (Entered: 10/13/2020)
110 JOINT LETTER addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman and Robert Hodgson dated October 19, 2020 re: The parties' joint letter pursuant to the Courts Individual Rule 2.E, and ECF Nos. 102 & 108, setting forth the parties respective positions on the outstanding discovery-related issues. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Exhibit A - Rule 30(b)(6) Notice regarding compliance with the preliminary injunction, # 2 Exhibit B Requests for production of documents and interrogatories, # 3 Exhibit C - Rule 30(b)(6) Notice regarding supplementing the administrative record, # 4 Exhibit D - Notice of fact deposition (SDDO 1), # 5 Exhibit E - Notice of fact deposition (SDDO 2), # 6 Exhibit F - Notice of fact deposition (DFOD Joyce), # 7 Exhibit G - Notice of fact deposition (SDDO 3)).(Waterman, Brandon) (Entered: 10/19/2020)
111 SCHEDULING ORDER: The parties are hereby ordered to appear for a hearing on Wednesday, October 21, 2020, at 2:30 p.m., which conference will be held via the following call-in number: Call-in number: 888-363-4749, Access code: 7518680. To ensure that the call proceeds smoothly and to avoid disruption, the Court directs those calling in (other than counsel) to mute their telephones. Additionally, all participants are directed to call in 5 minutes prior to the start of the conference. Finally, no later than October 20, 2020, at 12:00 p.m., the parties shall jointly submit to the court (via the email address HellersteinNYSDChambers@nysd.uscourts.gov) a list of all counsel expected to appear on the record, along with their contact information. SO ORDERED. ( Telephone Conference set for 10/21/2020 at 02:30 PM before Judge Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on 10/19/20) (yv) (Entered: 10/19/2020)
Minute Entry for proceedings held before Judge Alvin K. Hellerstein: Status Conference held on 10/21/2020, ( Status Conference set for 12/1/2020 at 02:30 PM in Courtroom 14D, 500

Pearl Street, New York, NY 10007 before Judge Alvin K. Hellerstein.). (Court Reporter Vincent Bologna) (Jones, Brigitte) (Entered: 10/21/2020)

11/02/2020

112 TRANSCRIPT of Proceedings re: CONFERENCE held on 10/21/2020 before Judge Alvin K. Hellerstein. Court Reporter/Transcriber: Vincent Bologna, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/23/2020. Redacted Transcript Deadline set for 12/3/2020. Release of Transcript Restriction set for 1/31/2021..(McGuirk, Kelly) (Entered: 11/02/2020)

11/02/2020

113 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/21/20 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 11/02/2020)

11/17/2020

114 PROPOSED STIPULATION AND ORDER. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 11/17/2020)

11/18/2020 115

ORDER REGULATING PROCEEDINGS: In response to Petitioners' letter submitted November 18, 2020, Respondents are hereby ordered to provide responses to Petitioner's Rule 34 requests on or before November 30, 2020. The status conference, currently scheduled for December 1, 2020 shall be adjourned until December 3, 2020 at 10:30 a.m., and will be held via the following call-in number: Call-in number: 888-363-4749; Access code: 7518680. ( Telephone Conference set for 12/3/2020 at 10:30 AM before Judge Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on 11/18/2020) (va) (Entered: 11/18/2020)

11/18/2020

116 STIPULATION AND ORDER CONCERNING THE PROTOCOL FOR CONDUCTING REMOTE DEPOSITIONS. The Petitioners-Plaintiffs and Respondents-Defendants (collectively, the "Parties") jointly stipulate to the following

protocol for conducting depositions via remote means in the above-captioned matter, in light of the COVID-19 pandemic: All depositions shall be conducted remotely using videoconference technology, and each deponent shall be video-recorded. The Parties agree that these video-recorded remote depositions may be used at a trial or hearing to the same extent that an in-person deposition may be used at trial or hearing, and the Parties agree not to object to the use of these video recordings on the basis that the deposition was taken remotely. The Parties reserve all other objections to the use of any deposition testimony at trial and as further set forth in this stipulation.SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 11/17/20) (yv) (Entered: 11/19/2020)

12/02/2020

117 JOINT LETTER addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman and Amy Belsher dated December 2, 2020 re: The parties' joint letter in advance of the December 3 status conference. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 12/02/2020)

12/03/2020

Minute Entry for proceedings held before Judge Alvin K. Hellerstein: Status Conference held on 12/3/2020, ( Status Conference set for 2/19/2021 at 11:00 AM in Courtroom 14D, 500 Pearl Street, New York, NY 10007 before Judge Alvin K. Hellerstein.). (Jones, Brigitte) (Entered: 01/06/2021)

12/04/2020 118

ORDER, The parties are directed to proceed as follows: I. The parties shall submit to the Court a proposed order regarding the discovery issues raised in their joint letter by December 4, 2020, at 12:00 p.m. See ECF No. 117. II. The parties shall complete all Rule 33 and Rule 4 discovery by January 29, 2021. II. The parties are instructed to appear for a telephonic status conference on February 19, 2021, at 11:00 a.m. The call may be accessed with the call-in number 888-363-4749 and the access code 7518680. By 12:00 p.m. on February 17, 2020, the parties shall jointly submit to the Court (through the following email address: HellersteinNYSDChambers@nysd.uscourts.gov) the names of all counsel expected to appear on the record at the hearing. SO ORDERED. ( Discovery due by 1/29/2021., Telephone Conference set for 2/19/2021 at 11:00 AM before Judge Alvin K. Hellerstein.) (Signed by Judge Alvin K. Hellerstein on 12/4/20) (yv) Modified on 12/23/2020 (yv). (Entered: 12/04/2020)

12/04/2020 12/04/2020 12/07/2020
12/07/2020

119 PROPOSED STIPULATION AND ORDER. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 12/04/2020)
***DELETED DOCUMENT. Deleted document number 120 PROPOSED STIPULATION AND ORDER. The document was incorrectly filed in this case. (yv) (Entered: 12/07/2020)
120 STIPULATION AND ORDER REGARDING RULE 30(B)(6) DEPOSITION. The parties have conferred and agree that the topics that will be covered during the petitioners' Rule 30(b)(6) deposition of Deputy Field Office Director William Joyce should be modified as follows: Communications between March 30, 2020, and the present, involving the NYFO relating to how custody determinations should be conducted, the standards to be applied, and the use of the Risk Classification Assessment tool, to the extent that testimony is not duplicative of that provided in the November 18, 2020 deposition of Acting Assistant Field Office Director Judith Almodovar. Policies and practices, as well as information and instructions relating thereto, governing custody determinations, including but not limited to the consideration of special vulnerabilities, at the NYFO during the following time periods: a) between June of 2016 and June of 2017; b) between June of 2017 and March 30, 2020; and c) between March 30, 2020, and the present, to the extent that testimony is not duplicative of that provided in the November 18, 2020 deposition of Acting Assistant Field Office Director Judith Almodovar and as further set forth in this Stipulation. In addition, ICE has agreed to provide a second Rule 30(b)(6) deponent, who will be designated at a later time, to testify about the following topic: The nature and operation of the Risk Classification Assessment tool between June of 2016 and present, as well as related information and instructions, including information relating to the RCA's inputs, algorithm, recommendations, and all changes made to the RCA. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 12/7/20) (yv) (Entered: 12/07/2020)
121 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/3/2020 before Judge Alvin K. Hellerstein. Court Reporter/Transcriber: Kelly Surina, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through

12/07/2020
12/18/2020 12/18/2020 12/18/2020
12/18/2020 12/18/2020

PACER. Redaction Request due 12/28/2020. Redacted Transcript Deadline set for 1/7/2021. Release of Transcript Restriction set for 3/8/2021..(McGuirk, Kelly) (Entered: 12/07/2020)
122 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/3/20 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 12/07/2020)
123 ***STRICKEN DOCUMENT. Document number 123 has been stricken from the case record. The document was stricken from this case pursuant to 148 Order . MOTION to Seal . Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Belsher, Amy) Modified on 2/8/2021 (yv). (Entered: 12/18/2020)
124 MOTION to Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, . Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Belsher, Amy) (Entered: 12/18/2020)
125 ***STRICKEN DOCUMENT. Document number 125 has been stricken from the case record. The document was stricken from this case pursuant to 148 Order . MEMORANDUM OF LAW in Support re: 123 MOTION to
Seal ., 124 MOTION to Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, . . Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Belsher, Amy) Modified on 2/8/2021 (yv). (Entered: 12/18/2020)
126 DECLARATION of Jesse Barber in Support re: 124 MOTION to
Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, .. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Belsher, Amy) (Entered: 12/18/2020)
127 ***STRICKEN DOCUMENT. Document number 127 has been stricken from the case record. The document was stricken from this case pursuant to 148 Order . DECLARATION of Amy Belsher in Support re: 123 MOTION

12/18/2020 12/18/2020 12/18/2020
12/18/2020
12/21/2020

to Seal ., 124 MOTION to Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, .. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10).(Belsher, Amy) Modified on 2/8/2021 (yv). (Entered: 12/18/2020)
128 MOTION to Seal . Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Belsher, Amy) (Entered: 12/18/2020)
129 MEMORANDUM OF LAW in Support re: 124 MOTION to
Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, . . Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Belsher, Amy) (Entered: 12/18/2020)
130 DECLARATION of Amy Belsher in Support re: 128 MOTION to
Seal ., 124 MOTION to Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, .. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10).(Belsher, Amy) (Entered: 12/18/2020)
131 ***SELECTED PARTIES***DECLARATION of Amy Belsher in Support re: 128 MOTION to Seal ., 124 MOTION to Enforce
Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, .. Document filed by Jose L. Velesaca, Abraham Carlo Uzategui Navarro, Matthew Albence, Thomas R. Decker, Carl E. DuBois, State of New York, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Exhibit 1)Motion or Order to File Under Seal: 128 .(Belsher, Amy) (Entered: 12/18/2020)
132 JOINT MOTION to Remove Incorrectly Filed Documents From the Docket re: 127 Declaration in Support of Motion, 123 MOTION to Seal ., 125 Memorandum of Law in Support of Motion, . Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca. (Attachments: # 1 Text of Proposed Order).(Belsher, Amy) (Entered: 12/21/2020)

12/30/2020 12/31/2020 01/04/2021 01/05/2021 01/06/2021

133 LETTER MOTION for Extension of Time to File Response/Reply
as to 124 MOTION to Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, . addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated December 30, 2020. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 12/30/2020)
134 LETTER addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated December 31, 2020 re: The government's letter pursuant to Rule 4(B)(ii) of the Court's Individual Rules explaining the need for the limited redactions the government requested in Exhibit 1 of the plaintiffs' motion to enforce (ECF No. 130-1). Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 12/31/2020)
135 ORDER granting 133 Letter Motion for Extension of Time to File Response/Reply re 124 MOTION to Enforce Judgment re: 67
Order on Motion for Preliminary Injunction, . So ordered. ( Responses due by 1/6/2021.) (Signed by Judge Alvin K. Hellerstein on 1/4/21) (yv) (Entered: 01/04/2021)
136 MEMO ENDORSEMENT on re: 134 Letter explaining the need for the limited redactions the government requested in Exhibit 1 of the plaintiffs' motion to enforce (ECF No. 130-1)., filed by United States Immigration and Customs Enforcement, Thomas R. Decker, Carl E. DuBois, Matthew Albence, Chad Wolf, United States Department of Homeland Security. ENDORSEMENT: So ordered. (Signed by Judge Alvin K. Hellerstein on 1/5/21) (yv) (Entered: 01/05/2021)
137 DECLARATION of Deputy Field Office Director Darius Reeves in Opposition re: 124 MOTION to Enforce Judgment re: 67
Order on Motion for Preliminary Injunction,,,,,, .. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Exhibit A - June 11 Guidance, # 2 Exhibit B Initial Custody Determination Worksheets (part 1), # 3 Exhibit B Initial Custody Determination Worksheets (part 2), # 4 Exhibit B -

01/06/2021 01/06/2021 01/06/2021 01/13/2021 01/14/2021

Initial Custody Determination Worksheets (part 3), # 5 Exhibit C Custody Redetermination Worksheets).(Waterman, Brandon) (Entered: 01/06/2021)
138 DECLARATION of Unit Chief Jeffrey A. Wilson in Opposition
re: 124 MOTION to Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, .. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 01/06/2021)
139 DECLARATION of Brandon M. Waterman in Opposition
re: 124 MOTION to Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, .. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf. (Attachments: # 1 Exhibit 1 - Deposition Transcript Excerpts (redacted)).(Waterman, Brandon) (Entered: 01/06/2021)
140 MEMORANDUM OF LAW in Opposition re: 124 MOTION to
Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, . . Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 01/06/2021)
141 REPLY MEMORANDUM OF LAW in Support re: 124 MOTION
to Enforce Judgment re: 67 Order on Motion for Preliminary Injunction,,,,,, . . Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Hodgson, Robert) (Entered: 01/13/2021)
142 LETTER MOTION to Seal and Permit Redactions Contained In the Government's Opposition Papers addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated January 14, 2021. Document filed by Matthew Albence, Thomas R. Decker, Carl E. DuBois, United States Department of Homeland Security, United States Immigration and Customs Enforcement, Chad Wolf..(Waterman, Brandon) (Entered: 01/14/2021)

01/14/2021

143 ***SELECTED PARTIES*** LETTER addressed to Judge Alvin K. Hellerstein from Brandon M. Waterman dated January 14, 2021 re: Unredacted Letter Motion to Seal and Permit Redactions Contained In the Government's Opposition Papers. Document filed by United States Department of Homeland Security, Thomas R. Decker, Carl E. DuBois, Chad Wolf, Matthew Albence, Abraham Carlo Uzategui Navarro, Jose L. Velesaca, United States Immigration and Customs Enforcement. (Attachments: # 1 Waterman Declaration Exhibit 1, # 2 Reeves Declaration Exhibit B (part 1), # 3 Reeves Declaration Exhibit B (part 2), # 4 Reeves Declaration Exhibit B (part 3), # 5 Reeves Declaration Exhibit C)Motion or Order to File Under Seal: 142 .(Waterman, Brandon) (Entered: 01/14/2021)

01/29/2021

144 MOTION for Megan Sallomi to Withdraw as Attorney . Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca. (Attachments: # 1 Affidavit).(Sallomi, Megan) (Entered: 01/29/2021)

02/05/2021

145 MEMO ENDORSEMENT on notice of motion and motion to withdraw as counsel for petitioners-plaintiffs: granting 144 Motion to Withdraw as Attorney. ENDORSEMENT: Attorney Salomi's motion to withdraw is GRANTED. SO ORDERED. Attorney Megan Sallomi terminated. (Signed by Judge Alvin K. Hellerstein on 2/05/2021) (ama) (Entered: 02/05/2021)

02/05/2021

Set/Reset Deadlines: Motions due by 2/12/2021. (yv) (Entered: 02/08/2021)

02/05/2021 148

ORDER GRANTING MOTION TO REMOVE INCORRECTLY FILED DOCUMENTS FROM THE DOCKET re: 132 JOINT MOTION to Remove Incorrectly Filed Documents From the Docket re: 127 Declaration in Support of Motion, 123 MOTION to Seal ., 125 Memorandum of Law in Support of Motion, . filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca. For good cause shown, the parties' Motion to Remove Incorrectly Filed Documents is GRANTED. It is hereby ORDERED that the Clerk of the Court is directed to strike from the docket document Nos. 123, 125 and 127 but retain the summary docket text for the record. The Clerk is further instructed to terminate ECF No. 132. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 2/5/21) (yv) (Entered: 02/08/2021)

02/07/2021

146 ORDER granting 132 Motion to Withdraw ECF 123, 125 and 127, on consent (HEREBY ORDERED by Judge Alvin K.

Hellerstein)(Text Only Order) (Hellerstein, Alvin) (Entered: 02/07/2021)

02/08/2021 147

MEMO ENDORSED ORDER terminating 128 Motion to Seal. ENDORSEMENT: No attachment was filed with the notice of motion. Further, the Court's Individual Rule 4(B) provides that the parties shall specify portions sought to be sealed and set forth reasons justifying sealing "contemporaneously" with the filing of sealed documents. Petitioner is hereby ordered to move by February 12, 2021. So ordered., (Signed by Judge Alvin K. Hellerstein on 2/5/21) (yv) (Entered: 02/08/2021)

02/08/2021

149 MEMO ENDORSEMENT on re: 143 Letter Unredacted Letter Motion to Seal and Permit Redactions Contained In the Government's Opposition Papers, filed by United States Immigration and Customs Enforcement, Thomas R. Decker, Carl E. DuBois, Matthew Albence, Abraham Carlo Uzategui Navarro, Chad Wolf, Jose L. Velesaca, United States Department of Homeland Security. ENDORSEMENT: So ordered, without opposition. (Signed by Judge Alvin K. Hellerstein on 2/8/21) (yv) (Entered: 02/08/2021)

02/11/2021

150 SCHEDULING ORDER: The parties are hereby ordered to appear for an oral argument on March 17, 2021 at 2:30 p.m., which argument will be held via the following call-in number: Call-in number: 888-363-4749 Access code: 7518680. (As further set forth in this Order.) Telephone Conference set for 3/17/2021 at 02:30 PM before Judge Alvin K. Hellerstein. (Signed by Judge Alvin K. Hellerstein on 2/11/2021) (cf) (Entered: 02/11/2021)

02/12/2021

151 LETTER addressed to Judge Alvin K. Hellerstein from Amy Belsher dated February 12, 2021 re: the Court's February 8, 2021 Order. Document filed by Abraham Carlo Uzategui Navarro, Jose L. Velesaca..(Belsher, Amy) (Entered: 02/12/2021)

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 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
JOSE L. VELESACA and ABRAHAM CARLO UZATEGUI NAVARRO, on their own behalf and on behalf of others similarly situated,

Petitioners-Plaintiffs,

v.

THOMAS R. DECKER, in his official capacity as New York Field Office Director for U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; MATTHEW ALBENCE, in his official capacity as the Acting Director for U.S. Immigration and Customs Enforceme nt; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD WOLF, in his offic ia l capacity as Secretary of the U.S. Department of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; CARL E. DUBOIS, in his official capacity as the Sheriff of Orange County,

Case No. 1:20-cv-1803

Respondents-Defendants.

PETITIONERS-PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION

ROBERT HODGSON AMY BELSHER CHRISTOPHER DUNN MEGAN SALLOMI New York Civil Liberties Foundation 125 Broad Street, 19th Floor New York, N.Y. 10004 Tel: (212) 607-3300 rhodgson@nyclu.org
Dated: March 16, 2020 New York, N.Y.

THOMAS SCOTT-RAILTON NIJI JAIN JENN ROLNICK BORCHETTA The Bronx Defenders 360 E. 161st Street Bronx, N.Y. 10451 Tel: (718) 838-7878 njain@bronxdefenders.org
Counsel for Petitioners-Plaintiffs

 Law Graduate pending admission, practicing under supervision.

TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................................1
FACTUAL BACKGROUND .....................................................................................................................2
ARGUMENT ............................................................................................................................................15
I. A PRELIMINARY INJUNCTION WILL PREVENT IRREPARABLE HARM .............16
II. THE PETITIONERS HAVE A CLEAR AND SUBSTANTIAL LIKELIHOOD OF SUCCEEDING ON THE MERITS ...................................................................................18
A. The No-Release Policy is Contrary to the INA and Its Implementing Regulations.............................................................................................................19
B. The No-Release Policy is Arbitrary and Capricious in Violation of the APA ......26
C. The No-Release Policy Violates the APA’s Notice and Comment Requirements .........................................................................................................27
D. The No-Release Policy Must Be Struck Down Pursuant to the Accardi Doctrine..................................................................................................................30
E. The No-Release Policy Violates the Rehabilitation Act and Implementing Regulations.............................................................................................................31
III. A PRELIMINARY INJUNCTION WILL SERVE THE PUBLIC INTEREST ...............36
IV. REMEDY...........................................................................................................................37
CONCLUSION .........................................................................................................................................38

TABLE OF AUTHORITIES Cases
Abdi v. Duke, 280 F. Supp. 3d 373 (W.D.N.Y. 2017) .......................................................16, 30, 36 Abdi v. McAleenan, 405 F. Supp. 3d 467 (W.D.N.Y. 2019) .........................................................16 Am. Beverage Ass’n v. City & Cty. of San Francisco, 916 F.3d 749 (9th Cir. 2019)....................35 Am. Wild Horse Pres. Campaign v. Purdue, 873 F.3d 914 (D.C. Cir. 2017) ................................27 Cablevision Sys. Corp. v. F.C.C., 570 F.3d 83 (2d Cir. 2009) ......................................................26 Calderon v. Sessions, 330 F. Supp. 3d 944 (S.D.N.Y. 2018) ........................................................25 Citigroup Glob. Markets, Inc. v. Mun. Elec. Auth. of Georgia, No. 14 CIV. 2903 AKH,
2014 WL 3858509 (S.D.N.Y. June 18, 2014) .............................................................16, 18 City of Costa Mesa v. United States, No. 820CV00368JLSJDE, 2020 WL 882000 (C.D.
Cal. Feb. 21, 2020).............................................................................................................17 Clark v. Martinez, 543 U.S. 371 (2005) ........................................................................................23 Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018) ...........................................................22, 28 Disabled in Action v. Bd. of Elections, 752 F.3d 189 (2d Cir. 2014) ............................................31 Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017)....................................................................................36 Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011)...........28, 29 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ..................................................26, 27 Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009).............................16 F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009)..................................................26, 27 Fernandez Aguirre v. Barr, No. 19-CV-7048 (VEC), 2019 WL 3889800 (S.D.N.Y.
Aug. 19, 2019) .............................................................................................................33, 37 Gen. Elec. Co. v. E.P.A., 290 F.3d 377 (D.C. Cir. 2002) ........................................................28, 29 Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003) (quoting 28 C.F.R. § 35.130(b)(7))................35 Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017)....................................................................17 Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 214 (E.D.N.Y. 2000), aff’d Henrietta D.
v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) .......................................................................17
ii

Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ........................................................17, 32 INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183 (1991).................................19, 20, 23 Jean v. Nelson, 472 U.S. 846 (1985) .......................................................................................20, 21 Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ...............................................................................23 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) ...............................................................................18 Kouadio v. Decker, 352 F. Supp. 3d 235 (S.D.N.Y. 2018) ...............................................22, 24, 25 LaForest v. Former Clean Air Holding Co., Inc., 376 F.3d 48 (2d Cir. 2004) .............................16 L.V.M. v. Lloyd, 318 F. Supp. 3d 601 (S.D.N.Y. 2018).................................................................36 Make the Rd. New York v. McAleenan, 405 F. Supp. 3d 1 (D.D.C. 2019) ....................................28 Matter of Adeniji, 22 I. & N. Dec. 1102 (BIA 1999).................................................................3, 22 Marczak v. Greene, 971 F.2d 510 (10th Cir. 1992) .......................................................................21 Mary Jo C. v. New York State & Local Ret. Sys., 707 F.3d 144 (2d Cir. 2013) ............................32 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012).......................................................................35 McLouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988) ......................................28 Montilla v. I.N.S., 926 F.2d 162 (2d Cir. 1991) .......................................................................21, 30 Nat. Res. Def. Council v. Dep’t of Interior, 410 F. Supp. 3d 582 (S.D.N.Y. 2019) ......................26 Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999 (D.C. Cir. 2014)....................23 Noel v. New York City Taxi & Limousine Comm’n, 687 F.3d 63 (2d Cir. 2012) ..........................32 NYCLU v. ICE, No. 18-cv-11557 (S.D.N.Y. 2018).........................................................................6 Peralta-Veras v. Ashcroft, No. CV 02-1840 (IRR), 2002 WL 1267998 (E.D.N.Y. Mar.
29, 2002) ............................................................................................................................17 Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir.2011) ...............................................16 Reno v. Flores, 507 U.S. 292 (1993) .............................................................................................20 Reuters Ltd. V. United Press Int’l, Inc., 903 F.2d 904 (2d Cir. 1990) ...........................................16 R.F.M. v. Nielsen, 365 F. Supp. 3d 350 (S.D.N.Y. 2019)..............................................................27 R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ................................................................25
iii

Saget v. Trump, 375 F. Supp. 3d 280 (E.D.N.Y. 2019) .................................................................26 Smith v. Resor, 406 F.2d 141 (2d Cir. 1969) .................................................................................30 Strouchler v. Shah, 891 F. Supp. 2d 504 (S.D.N.Y. 2012) ............................................................16 The Wilderness Soc. v. Norton, 434 F.3d 584 (D.C. Cir. 2006) ..............................................28, 29 Time Warner Cable Inc. v. F.C.C., 729 F.3d 137 (2d Cir. 2013) ......................................27, 28, 29 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) .......................................18, 30 United States v. Carson, 52 F.3d 1173 (2d Cir. 1995)...................................................................37 U.S. Tel. Ass’n v. F.C.C., 28 F.3d 1232 (D.C. Cir. 1994)..............................................................28 Waldron v. INS, 17 F.3d 511 (2d Cir.1993) .............................................................................21, 30 Wright v. New York State Dep’t of Corr., 831 F.3d 64 (2d Cir. 2016) ..........................................32 Ying Fong v. Ashcroft, 317 F. Supp. 2d 398 (S.D.N.Y. 2004) ................................................21, 30 Zadvydas v. Davis, 533 U.S. 678 (2001) .....................................................................22, 23, 24, 25
Statutes, Rules, and Regulations 6 C.F.R. § 15.30(b)(1)(ii) ...............................................................................................................32 6 C.F.R. § 15.30(b)(2)....................................................................................................................32 28 C.F.R. § 35.108 .........................................................................................................................32 8 C.F.R. § 236.1(c)(8) ..............................................................................................................21, 22 8 C.F.R. § 287.3(d) ....................................................................................................................3, 37 8 C.F.R. § 1003.19(a).......................................................................................................................4 8 C.F.R. § 1236.1(c)(8) ........................................................................................................3, 19, 37 INA § 236(a) ..................................................................................................................................22 5 U.S.C. § 553(b-c) ........................................................................................................................27 5 U.S.C. § 706(2)(A)......................................................................................................................23 8 U.S.C. § 1182(d)(5)(A) ...............................................................................................................20 8 U.S.C. § 1226(a) ...........................................................................................................................3
iv

8 U.S.C. § 1226(a)(1)-(2)...............................................................................................................20 8 U.S.C. § 1252(a) .........................................................................................................................20 29 U.S.C. § 794(a) .........................................................................................................................32 42 U.S.C. § 12131(2) .....................................................................................................................32
v

INTRODUCTION This lawsuit challenges Immigration and Customs Enforcement’s unannounced policy of detaining virtually everyone it arrests, including people who do not pose a risk of flight or danger and people with disabilities. Based on the recommendations of its risk assessment tool, ICE used to release many of these people. But in response to the Trump Administration’s immigratio n directives, ICE manipulated the tool until it could make only one substantive recommendatio n: detention without bond. Since then, ICE’s New York Field Office has adopted a blanket policy of detaining virtually everyone it arrests, even those the tool itself deems low risk. This illegal practice of mass detention causes enormous and unnecessary irreparable harm, separating people from their families, jobs, and communities and exposing them to serious health risks without any individualized determination of whether the ongoing denial of liberty is justified. Exacerbating these harms—and increasing the urgency of the petitioners’ request for relief—is the threat posed by COVID-19, the pandemic experts predict will spread to New York City area immigration detention centers in a matter of days, bringing with it the threat of infectio n, pneumonia, sepsis, or even death. The petitioners, a putative class of people arrested by immigration officials in the New York City area and detained without the procedural protections to which they are entitled, seek class-wide preliminary declaratory and injunctive relief to remedy the government’s unlawful detention policy. ICE’s New York Field Office arrests thousands of people each year. Many of these people are eligible for release pending the outcome of their immigration proceedings and, under prior administrations, would have been released. However, starting in 2017, the New York Field Office implemented a “No-Release Policy,” operationalizing a risk assessment tool that only recommends detention and denying release to virtually everyone arrested. The policy applies even to those whom ICE has identified as a low risk of flight and danger: since mid-2017, approximate ly

3% of this population has secured release on bond or recognizance. Pursuant to the policy, ICE has unlawfully incarcerated thousands of people in violation of its duties under the Immigratio n and Nationality Act (“INA”) and implementing regulations, the Due Process Clause of the U.S. Constitution, the Administrative Procedure Act (“APA”), and the Rehabilitation Act and implementing regulations. To prevent serious harms to the putative class from the No-Release Policy, the petitioners respectfully request that the Court enter a class-wide preliminary injunctio n requiring the government to adjudicate—or re-adjudicate—ICE’s custody determinations based on individualized assessments of each petitioner’s flight risk, danger to the community, and special vulnerabilities such as a disability.
FACTUAL BACKGROUND This lawsuit is brought on behalf of a putative class of people (the “Petitioner Class”) in immigration detention arrested by ICE’s New York Field Office who are detained pursuant to Section 1226(a) of Title 8 of the United States Code and whom ICE has denied bond or release on recognizance pursuant to the No-Release Policy. This lawsuit is also brought on behalf of a putative subclass of individuals with disabilities under the Rehabilitation Act (the “Rehabilitatio n Act Subclass”) who are detained pursuant to Section 1226(a) and whom ICE has denied bond or release on recognizance under the No-Release Policy. An analysis of the government’s own data reveals that, under the policy, virtually all people arrested by immigration authorities in the New York City area are denied bond or release without an individualized determination. For people arrested within the jurisdiction of the New York Field Office, ICE’s post-arrest processing, including the initial custody determination, generally occurs at the ICE offices in New York City at 201 Varick Street or at 26 Federal Plaza. See Declaration of Yvette Tay-Taylor (ECF 14-2) ¶ 10. People who are denied release or bond are generally held at one of four county jails that contract with ICE: Orange County Correctional Facility in New York and the Hudson County
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Correctional Facility, Bergen County Jail, and Essex County Correctional Facility in New Jersey (collectively “ICE’s New York City-area facilities”). Id. ¶ 5; Declaration of Sarah Deri Oshiro (ECF 13) ¶ 7.
ICE’s Custody Determination Process Many of the people whom ICE detains in the interior of the United States are eligible to be released from custody while their removal proceedings are pending. See 8 U.S.C. § 1226(a) (“Section 1226(a)”). Section 1226(a) provides that, “pending a decision on whether the alien is to be removed from the United States[,]”
The Attorney General— (1) may continue to detain the arrested alien; and (2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole . . . . The implementing regulation delegates the Attorney General’s authority to grant bond or conditional parole to ICE officers. See 8 C.F.R. § 1236.1(c)(8). Pursuant to this regulation, the officer must make a determination about the appropriateness of release based on two factors: that “such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8). ICE officers are required to make this initia l custody determination within 48 hours of detaining someone. See id. § 287.3(d); see also id. §
1236.1(c)(8). Section 1226(a) and its predecessor statute have been consistently interpreted by the Board of Immigration Appeals itself to authorize the detention of noncitizens based only on an individualized analysis of the two factors identified in the regulation: flight risk or danger to the community. See Matter of Adeniji, 22 I. & N. Dec. 1102, 1112-13 (BIA 1999) (construing current
Section 1226(a)).
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In 2013, ICE implemented a risk classification assessment tool to assist its officers to make these initial custody determinations. See Immigration Detention in the Risk Classification Assessment Era (ECF 14-1), at 6; see also Tay-Taylor Decl. (ECF 14-2) ¶¶ 10-11 (describing how ICE “makes a custody determination [after arrest] with the assistance of a computer program called the Risk Classification Assessment”). ICE officers input information about the arrested person into the assessment tool, which was originally programmed to generate one of four recommendations: (1) release the person on their own recognizance; (2) authorize release of the person upon posting of bond in a specified amount; (3) defer the decision to the ICE supervisor, or (4) order the person detained. Id. ICE officers and supervisors then determined whether to affirm or override this recommendation. Id.
ICE memorializes its custody decision on Form I-286, Notice of Custody Determinatio n, which the agency serves on the detainee. See, e.g., ICE, Bond Management Handbook (2014) at 3 (attached as Exhibit A to the Supplemental Declaration of Robert Hodgson (“Supp. Hodgson Decl.”)). At no point in ICE’s post-arrest processing or custody review do detainees have a meaningful opportunity to participate or to contest their custody status: detained people are not provided a hearing, are not served with the underlying evidence against them, are not provided any resources or materials explaining how they might challenge the custody decision, and are not given access to counsel during this process. See Oshiro Decl. (ECF 13) ¶ 6; Stave et al., Evaluation of the New York Immigrant Family Unity Project, Vera Institute of Justice, Nov. 2017 (“Vera Evaluation”) (ECF 14-17) at 5, 17 n.34, 20.
Consequently, anyone who is not released after an ICE arrest remains incarcerated at a minimum until their initial “master calendar hearing” before an Immigration Judge, at which point they may request a custody redetermination from the immigration court. See 8 C.F.R. § 1003.19(a). At the Varick Street Immigration Court, where people detained by the New York Field Office
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appear, the average time between an arrest and initial hearing is several weeks, but such wait times fluctuate and as recently as late 2018 the average wait time was nearly three months. See, e.g., Declaration of David Hausman, Vazquez-Perez v. Decker, No. 1:18-CV-10683 (Dec. 5, 2018) (ECF 14-19).
In addition, for most people these initial hearings do not offer a meaningful opportunity to apply for bond, especially for those who are not represented by counsel prior to the hearing. There are a number of reasons why this is. Assembling a bond application is factually and legally complex, as well as time-intensive, almost always involving letters of support and an initia l application for immigration relief with supporting evidence. The government does not provide people in detention with information about the materials they would need to submit for a bond application or how they might do so. For the many people who do not have counsel until this initia l hearing, it is logistically difficult to collect the supporting materials necessary, some of which may be outside of the country, while being held in jail. Moreover, ICE often does not provide relevant evidence supporting its charges until the initial hearing. These hearings are also held by videoconference, which presents numerous challenges for the detained person’s ability to submit an application and participate in a bond hearing, as well as for a lawyer who has not been able to meet with a client prior to the hearing. Finally, a significant number of people in immigratio n detention speak little or no English, which is a further challenge to preparing the necessary documents and participating in the hearing. See Oshiro Decl. ¶¶ 11-25.
Accordingly, many people will have to wait even longer in detention after their initia l master calendar hearing while preparing their bond application. Once they reach that bond hearing, however, it becomes clear just how many people have been needlessly detained. Since ICE adopted the No-Release Policy, approximately 40% of people in immigration detention appearing
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at the Varick Street Immigration Court have ultimately been granted bond. See Immigration Court Bond Hearings and Related Case Decisions through January 2020 (ECF 14-3) (“TRAC Data”).
ICE Implements the No-Release Policy In mid-2017, ICE removed the risk classification tool’s ability to recommend release on recognizance, after an earlier modification removing the ability to recommend release on bond. Hausman Decl. (ECF 12) ¶¶ 17-18. As a result, since mid-2017 the assessment tool—on which ICE offices across the country rely—now can make only one substantive recommendatio n: detention without bond. Also in mid-2017, according to data obtained by the New York Civil Liberties Union under the Freedom of Information Act, see NYCLU v. ICE, No. 18-cv-11557 (S.D.N.Y. 2018), the New York Field Office implemented a blanket policy of denying bond or release without an individualized determination of whether detention was necessary based on flight or safety risks. This policy shift, coupled with the reliance on the manipulated risk-assessment tool, led to a categorical denial of bond or release in virtually all cases. Even when the tool refers the custody decision to an ICE supervisor, the result is the same: detention in virtually every case. Hausman Decl. (ECF 12) ¶ 15. Prior to these changes in policy, the New York Field Office had conducted individualized custody determinations in many cases, releasing significant numbers of people who posed no risk of flight or danger to the community. In 2013 and 2014, about 40% of all people arrested by immigration officials in the New York City area were released or granted bond; between mid-2017 to September 2019, less than 2% were released on recognizance and under one-tenth of 1% had bond set. See Id. ¶ 14. Even for individuals who are plainly eligible for release, the New York Field Office virtually always blindly applies its No-Release Policy. Though ICE officers may deny release or
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bond based only on two criteria—risk of flight and danger to the community—the New York Field Office now routinely denies release to people whom ICE’s own risk-assessment tool has classified as a low risk of both flight and danger to the community. Between mid-2017, when ICE altered the assessment tool, to September 2019, ICE detained approximately 97% of this low-risk population. Id. ¶ 13.
The sharp drop in release rates is even more dramatic given the Trump Administratio n’ s shift in focus to arresting people without criminal convictions and who have resided in the United States for years. The No-Release Policy began soon after the Trump Administration rescinded the Obama Administration’s enforcement priorities that focused on apprehending noncitizens with serious criminal histories. Under the Trump Administration’s new “zero tolerance” policy, any removable noncitizen is subject to arrest and deportation. See Memorandum from Sec. of Homeland Security John Kelly to U.S. Immigration Officials (Feb. 20, 2017) (“Priorities Memo”) (ECF 14-4) at 2. As a result, during the first year of this administration, there was a 334% spike in ICE arrests of noncitizens in New York City with no criminal record who had resided in the United States for ten or more years. See NYC Mayor’s Office of Immigrant Affairs, Fact Sheet: ICE Enforcement in New York City (ECF 14-6) (“Fact Sheet”) at 2. By the end of 2018, the number of people with no criminal record arrested by ICE in the New York City area had skyrocketed by 414%. Id. People without criminal convictions constituted an even larger portion of overall arrests last year: 36% in 2019 versus 13% in 2016. Id.
As immigration officials have expanded arrests beyond those convicted of crimina l offenses, more and more people who pose no flight or safety risk are being jailed as a matter of course. For example, named petitioner Abraham Uzategui has strong ties to the community, including a wife and two daughters in Newburgh, New York, where he has lived for several years. Declaration of Abraham Uzategui (“Uzategui Decl.”) ¶ 3. He is a regular member of his local
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church and volunteers at his older daughter’s school. Id. ¶¶ 4-5. He has never been arrested and had never been in jail prior to his detention by ICE. Id. ¶ 13. His only contact with the crimina l justice system is an open summons for allegedly shoplifting children’s shoes, at a time when he had lost his job and his daughter was being bullied at school for wearing used clothes. Id. ¶¶ 1011. Yet ICE has detained him without bond.
In addition to the change in who is arrested and kept in detention, the Trump Administratio n has vastly expanded its enforcement actions. Since President Trump has taken office, the number of ICE arrests in the New York City area has risen by over one third. See Fact Sheet (ECF 14-2).
As a result of the convergence of these three separate but related policy changes, the New York Field Office now is arresting record levels of immigration detainees and ordering them detained without bond, even when they present no danger to the community or risk of flight. And yet, as discussed in the previous section, once people detained by ICE receive a bond hearing in front of an Immigration Judge in New York City, approximately 40% ultimately are granted bond based on the Immigration Judge’s assessment of the same flight risk and dangerousness factors . See TRAC Data (ECF 14-3).
The New York Field Office has provided no explanation—or even acknowledgement—o f this sweeping policy change.
The Economic, Legal, Medical, and Psychological Harms of the No-Release Policy The No-Release Policy results in the blanket detention of thousands individuals, many of whom an Immigration Judge later will determine should be released. See TRAC Data (ECF 14-3). This illegal detention has unnecessarily caused and will continue to cause serious harm, illness, injury, deportation, the loss of income on which entire families depend, and even death.
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Legal and Economic Consequences While individuals await bond hearings before an Immigration Judge, ICE detains them in criminal jails under the same restrictions as people held on criminal charges or serving crimina l sentences. Oshiro Decl. ¶¶ 6-7; Declaration of Marinda Van Dalen (“Van Dalen Decl.”) ¶¶ 14, 18. For many petitioners, this detention prevents them from being able to meaningfully prepare for their immigration cases and seek immigration relief. It is not uncommon for people to give up on their immigration cases, sacrificing any claim they have for relief, simply because of how much they are suffering in detention. Van Dalen Decl. ¶ 37; Declaration of Jose L. Velesaca (“Velesaca Decl.”) (ECF 11) ¶ 6. Phone calls and visits in the detention facilities are limited and prohibitive ly expensive for some. See Uzategui Decl. ¶ 25. Most people arrested under Section 1226 have lived in the U.S. for many years. According to a recent report, approximately half of those with cases in the New York City immigration courts, like the putative class members here, are being kept from their children while detained. Vera Evaluation (ECF 14-17) at 19-20 (reporting that, on average, indigent people represented through the NYC immigration public defender program had been living in the U.S. for 16 years and that 47% of them had children living with them in the United States). Two-thirds of those identified in the same report were employed at the time of their arrest, and many were the primary breadwinners for their families. See id. at 17. As long as they remain detained, they and their families are denied that vital employment income. See Uzategui Decl. ¶ 31.
Medical and Mental Health Consequences For those with mental or physical health conditions, or who will come to need medical care while detained, the harms of detention are especially acute and can persist until long after they have been released. The health care available at ICE’s New York City-area facilities is grossly
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inadequate. See Van Dalen Decl. ¶¶ 18-45; Ailing Justice: New Jersey Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, Human Rights First (Feb. 2018) (ECF 14-14) (“Ailing Justice”) at 1-2, 6-10. The result is severe harm to people’s health and, in some cases, even death. See Van Dalen Decl. ¶¶ 41-42. ICE’s New York City area facilit ies have a track record of denying people access to vital medical and mental health treatment, including delays in needed surgeries; failure to provide lifesaving medication for people with epilepsy and cancer; failure to provide medically-required food to individuals with diabetes resulting in extreme harm to their health; and placing people at risk of suicide in the equivalent of solitary confinement. See Ailing Justice at 1-2, 6-10; Van Dalen Decl. ¶¶ 31-43. At Hudson County Correctional Facility, people have been told to “drink water for serious pain.” See Detention Watch Network, Hudson County Correctional Facility: Immigrant Detention Inspection Series (2016) (“Detention Watch”) at 2 (attached as Exhibit E to Supp. Hodgson Decl.). The Department of Homeland Security’s own Office of the Inspector General reported invasive procedures, substandard care, long waits for medical care and hygiene products, and mistreatme nt in ICE detention facilities, including indiscriminate strip searches and, in one case, a multida y lockdown for sharing a cup of coffee. See Dep’t of Homeland Security, Office of Inspector General, DHS OIG Inspection Cites Concerns With Detainee Treatment and Care at ICE Detention Facilities (2017) (“OIG Report”) (ECF 14-7). Collectively, the deficiencies in the medical care provided at ICE’s New York City area facilities subject the petitioners to the risk of serious and even life-threatening medical complications during the weeks and months before they can seek release from an Immigration Judge.
Beyond the medical risks described above, people in detention are also at a higher risk of experiencing severely deteriorating mental health. It is well-established that immigration detention
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has “severe mental health consequences” on those who are confined. See, e.g., M. von Werthern et al., The impact of immigration detention on mental health: a systematic review, 18 BMC Psychiatry 382 (2018) (“BMC Psych.”) (attached as Exhibit D to Supp. Hodgson Decl.). Those who already have mental health challenges risk decompensating as their conditions get worse, while detention can cause new trauma to those without a preexisting diagnosis. See Van Dalen Decl. ¶ 36; BMC Psych. In the named petitioner Jose L. Velesaca’s case, his mental health condition was “profoundly affected by detention,” with his Post-Traumatic Stress Disorder becoming significantly more acute and the development of Major Depressive Disorder, which if it deteriorates further may require hospitalization. Declaration of Joseph Giardino (“Giardino Decl.”) ¶¶ 3-7 (Mar. 6, 2020). Because of language barriers, insufficient screening, and general lack of care, even individuals with “obvious symptoms of mental health problems” will see “their needs and requests for care and evaluation go ignored.” Van Dalen Decl. ¶ 35. This leads to “mental health difficulties persist[ing] well beyond release.” BMC Psych.
Consequently, not only do these New York City area jails fail to provide the care people need when they are first arrested, they expose people to further serious medical and psychologic a l harm that then goes untreated. The results can be as tragic as they are irreversible. Hudson County Jail, where many putative class and subclass members are held, reported six inmate deaths between June 2017 and March 2018 alone, including four suicides. See Monsy Alvarado, After Latest Suicide, Hudson County Takes Steps to Terminate Jail’s Medical Provider, northjersey.com, Mar. 26, 2018) (ECF 14-8). The Essex County Correctional Facility, which was the subject of a recent DHS report documenting “serious issues relating to safety, security, and environmental health that require ICE’s immediate attention,” DHS OIG, Issues Requiring Action at the Essex County Correctional Facility, Feb. 13, 2019 (ECF 14-11) at 2, has had two inmate deaths since 2018, and
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over sixty detained people have been placed on suicide watch since 2015, see Joe Brandt, An Inmate Died at the Essex County Jail 4 Days Ago, nj.com, Mar. 22, 2019 (ECF 14-12).1 Lack of care has placed individuals at risk of strokes, heart attacks, renal failure, amputation, life threatening heart conditions, kidney failure, and blindness. Van Dalen Decl. ¶¶ 43(a), (b), (c). And the “serious and possibly irreversible damage to the person’s health” that results from such lack of care often lasts long after release. Id. ¶ 46.
Detention does not need to be prolonged in order for people to be placed in life-threatening danger, even in the absence of a pandemic. For example, when one local man, Carlos Bonilla, was placed in immigration detention at Hudson County Jail, he suffered from cirrhosis of the liver, a potentially deadly condition if left untreated. Van Dalen Decl. ¶ 41. Although he had been able to manage his condition on the outside, once he was detained the facility did not provide him the care he needed or monitor his condition. Id. After bleeding for three days, he was taken to a hospital where he hemorrhaged to death on the very same day that his bond hearing was scheduled before an Immigration Judge. Id.
Unmet medical and mental health needs also directly harm individuals’ ability to participate effectively in their removal proceedings and in bond applications before an Immigratio n Judge. Preparing for such proceedings often involves revisiting traumatic past experiences, including violence or rape, both before and during detention, and it may also entail revealing sensitive information such as sexual orientation or gender identity. See Oshiro Decl. ¶ 20; Velesaca Decl. ¶¶ 3-5. The experience of trauma can leave individuals with serious difficulty remembering
1See also Lea Ceasrine, Dozens of ICE Detainees Have Been Placed on Suicide Watch at 2, documentedny.com, Apr. 17, 2019 (ECF 14-13).
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traumatic events and communicating them, see Giardino Decl. ¶¶ 2-4, 6,2 and it can therefore
interfere with an individual’s ability to present a coherent first-person account and establish their credibility, both of which can be critical to an application for bond and claims for relief, see id.3
The result is that, as research suggests, “an unknown number of legal permanent residents (LPRs)
and asylum seekers with a lawful basis for remaining in the United States may have been unfair ly
deported from the country because their mental disabilities made it impossible for them to
effectively present their claims in court.” Deportation by Default: Mental Disability, Unfair
Hearings, and Indefinite Detention in the US Immigration System, Human Rights Watch & ACLU
(2010) (ECF 14-16) at 4, 25-31.
For individuals whose condition has deteriorated in detention, this risk is even greater.
Individuals with visual or auditory disabilities are not provided the aids they need, which can limit
their ability to communicate or prepare documents effectively. See Van Dalen Decl. ¶ 36;
Detention Watch at 2 (describing a person having their glasses confiscated and not replaced in
detention). Untreated or under-treated medical conditions can make it hard for individuals to
accomplish even daily tasks like getting out of bed or walking down the stairs, much less
participating in the complex and time-intensive task of preparing for an application for a bond
2 See also Chris R. Brewin, A Cognitive Neuroscience Account of Posttraumatic Stress Disorder and its Treatment , 39 Behaviour Research & Therapy 373 (2001) (“Disorganization in the trauma memory, indexed by gaps in recall and difficulty in producing a coherent narrative, is typical of normal trauma memories.”) (attached as Exhibit F to Supp. Hodgson Decl.); Michael C. Anderson & Collin Green, Suppressing Unwanted Memories by Executive Control, 410 Nature 366 (2001) (“When people encounter cues that remind them of an unwanted memory and they consistently try to prevent awareness of it, the later recall of the rejected memory becomes more difficult.”) (attached as Exhibit G to Supp. Hodgson Decl.). 3 See also Susan M. Meffert et al., The Role of Mental Health Professionals in Political Asylum Processing , 38:4 J. Am. Acad. Psychiatry L. 479, 484 (2010) (attached as Exhibit H to Supp. Hodgson Decl.); Carol M. Suzuki, Unpacking Pandora's Box: Innovative Techniques for Effectively Counseling Asylum Applicants Suffering from Post-Traumatic Stress Disorder, 4 Hastings Race & Poverty L. J. 235 (2007) (attached as Exhibit I to Supp. Hodgson Decl.).
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hearing or immigration relief. Van Dalen Decl. ¶ 34; Oshiro Decl. ¶¶ 15-23. Consequently, many people end up losing bond or being deported not because their claims lack merit, but because they have a disability.
New York City area detention facilities’ lack of medical and mental health care capacity is particularly dangerous to putative class members in light of the ongoing COVID-19 pandemic. During pandemics, correctional facilities become “ticking time bombs” as “[m]any people crowded together, often suffering from diseases that weaken their immune systems, form a potential breeding ground and reservoir for diseases.” Saint Louis University, “Ticking Time Bomb,” Prisons Unprepared For Flu Pandemic, ScienceDaily (2006) (attached as Exhibit B to Supp. Hodgson Decl.). As Dr. Jaimie Meyer, a professor at Yale Medical School and an expert in the field of public health in jails and prisons, describes, “the risk posed by COVID-19 in jails and prisons is significantly higher than in the community, both in terms of risk of transmissio n, exposure, and harm to individuals who become infected.” Declaration of Dr. Jaimie Meyer (“Meyer Decl.”) ¶ 7 (Mar. 15, 2020). This is due to a number of factors: the close proximity of individuals in those facilities; their reduced ability to protect themselves through social distancing; the lack of necessary medical and hygiene supplies ranging from hand sanitizer to protective equipment; ventilation systems that encourage the spread of airborne diseases; difficulties quarantining individuals who become ill; the increased susceptibility of the population in jails and prisons; the fact that jails and prisons normally have to rely heavily on outside hospitals that will become unavailable during a pandemic; and loss of both medical and correctional staff to illness. Id. ¶¶ 7-19. ICE’s New York City area facilities are no exception: at Bergen County Jail in 2019, a serious mumps outbreak resulted in the quarantine and full lock down of people in ICE custody.
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See ICE Jail in Bergen County Quarantined (ECF 14-9); 6 Inmates at New Jersey Jail Came Down With The Mumps (ECF 14-10).
COVID-19 is highly contagious—currently our immune systems have not built up a tolerance, and no vaccine exists. Meyer Decl. ¶¶ 19-20. As a result, “it is only a matter of time” before Covid-19 appears in jails. Nicole Wetsman, Prisons and Jails Are Vulnerable To COVID19 Outbreaks, TheVerge (Mar. 7, 2020) (attached as Exhibit C to Supp. Hodgson Decl.). While the precise levels of risk are unknown, recent data “suggest[] serious illness occurs in up to 16% of cases, including death.” Meyer Decl. ¶ 21. In other countries where the spread of COVID-19 is further advanced, it has spread to jails and prisons, with some countries releasing people from detention in response. Id. ¶¶ 24.
Yet while the spread of COVID-19 to New York City area facilities is a matter of “days, not weeks,” id. ¶ 40, these facilities “are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak,” id. ¶ 26. This ill-preparedness increases both the risk of infection and the risk of morbidity and mortality if infected. Id. ¶¶ 25-40. People with serious cases of COVID-19 may require intravenous fluids, supplemental oxygen, ventilators, and intravenous antibiotics, which will likely be quickly depleted to the extent these facilities have them at all. Id. ¶¶ 22, 26, 34. The result will be widespread infection, serious illness (such as pneumonia and sepsis), and even death. Id. ¶ 25-41. This danger is higher still for class members with chronic health conditions, and ultimately the harm would extend to detained individuals, jail and prison staff, and the broader community alike. Id. ¶ 41.
ARGUMENT The petitioners seek a preliminary injunction enjoining the No-Release Policy and ordering the defendants to perform an individualized assessment for all future release decisions and to reassess the detention decisions of all class members currently being held pursuant to the No-Release
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Policy. To obtain a preliminary injunction, the petitioners must show “‘(1) irreparable harm absent
injunctive relief; (2) either a likelihood of success on the merits, or a serious question going to the
merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the
plaintiff's favor; and (3) that the public's interest weighs in favor of granting an
injunction.’” Citigroup Glob. Markets, Inc. v. Mun. Elec. Auth. of Georgia, No. 14-cv-2903-AKH,
2014 WL 3858509, at *2 (S.D.N.Y. June 18, 2014) (quoting Red Earth LLC v. United States, 657
F.3d 138, 143 (2d Cir.2011)).
The petitioners are unnecessarily suffering significant irreparable harm due to the No-
Release Policy, which violates the INA and its implementing regulations, the Due Process Clause,
the APA, and the Rehabilitation Act and its implementing regulations. It is also in the public
interest to issue the requested injunction to prevent ICE’s ongoing illegal conduct and avoid the significant public expense of unnecessary detention.4
I. A PRELIMINARY INJUNCTION WILL PREVENT IRREPARABLE HARM A showing of irreparable harm is “‘the single most important prerequisite for the issuance
of a preliminary injunction.’” Citigroup Glob. Markets, Inc., 2014 WL 3858509, at *2 (quoting
Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009)). The harm
alleged must “be imminent, not remote or speculative” and be “incapable of being fully remedied
by monetary damages.” Reuters Ltd. V. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990).
4 The petitioners have previously filed a Motion for Class Certification on February 28, 2020 (Dkt. Nos. 9, 10), and an Amended Motion for Class Certification on March 16, 2020. However, the Court “may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equitable powers.” Strouchler v. Shah, 891 F. Supp. 2d 504, 517 (S.D.N.Y. 2012) (citation and internal quotation marks omitted). The Court may rely on evidence of likely harm to putative class members in deciding this motion. See LaForest v. Former Clean Air Holding Co., Inc., 376 F.3d 48, 56 (2d Cir. 2004) (holding “that the district cou rt did not abuse its discretion in relying on [six affidavits from putative class members] in concluding that the then putative class suffered irreparable harm warranting a preliminary injunction”); see also Abdi v. Duk e, 280 F. Supp. 3d 373, 400–01 (W.D.N.Y. 2017) (granting preliminary classwide relief based on evidence of harm to the putative class), partially vacated on other grounds sub nom Abdi v. McAleenan (2019).
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The petitioners and those similarly situated will suffer irreparable harm without injunctive
relief. Their injuries are imminent and certain—the New York Field Office has fully implemented
the No-Release Policy and orders people detained daily pursuant to its terms. The petitioners face
irreparable harm in the form of detention that exposes people to serious medical risks—increas ing
daily with the spread of COVID-19—and harms their families, as well as the ongoing violation of
constitutional rights.
Detention, especially where it exposes people to other risks, is plainly irreparable harm.
Several courts in this circuit have concluded that “[t]he deprivation of [an alien’s] liberty is, in and
of itself, irreparable harm.” Peralta-Veras v. Ashcroft, No. CV 02-1840 (IRR), 2002 WL 1267998,
at *6 (E.D.N.Y. Mar. 29, 2002). And this harm is compounded by the fact that the petitioner s’
detention in ICE’s New York City-area facilities causes extraordinary emotional and physical
distress, including irreversible damage to people’s health and even death. See discussion supra at
8-15; see also Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (irreparable harms of
immigration detention include “subpar medical and psychiatric care”). 5 There are numerous
putative class members who are especially medically vulnerable, particularly to COVID-19,
including: Mr. F.B.G., who is 47 years old and HIV-positive; Mr. U.E.T., who is 63; Mr. O.O.,
5 In particular, the rapidly-spreading COVID-19 pandemic, the manifest under-preparedness of ICE’s New York City-area facilities to address the pandemic, and the fact that detention deprives individuals of the most effective means of protecting themselves, mean that petitioners “face imminent risk to their health, safety, and lives.” See, e.g., Henrietta D. v. Giuliani, 119 F. Supp. 2d 181, 214 (E.D.N.Y. 2000), aff’d sub nom. Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003); see also City of Costa Mesa v. United States, No. 820CV00368JLSJDE, 2020 WL 882000, at *1 (C.D. Cal. Feb. 21, 2020) (granting temporary restraining order of government action that would increase risk of COVID-19 transmission). It is not a question of whether but when COVID-19 will spread to these facilities, with Dr. Meyer estimating that it is a matter of days. Meyer Decl. ¶ 40. Other experts in the field join in the assessment that “it is only a matter of time” before COVID-19 appears in jails and “[a]ll prisons and jails should anticipate that the coronavirus will enter their facility.” Wetsman, Prisons and Jails Are Vulnerable. An approximate rate of serious illness of 16% among those infected in the population at large —which does not account for the “significantly higher risk” in the context of detention —is essentially a guarantee that once COVID-19 enters these facilities some individuals will become gravely ill and that some may even die. Meyer Decl. ¶ 21, 23, 26-36. The risk is even greater for those with special vulnerabilities. Id. ¶ 21.
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who is 40 and has diabetes; Ms. M.M., who is 33 and has asthma; and Mr. T.Q., who is 31, has hypertension and arrhythmia, and in November 2019 was hospitalized with a life-threatening condition while detained. Declaration of Andrea Saenz ¶¶ 3-7 (Mar. 16, 2020).
Detention also results in families losing access to incomes on which they rely. See id. at 995. As just one example, the named petitioner Abraham Uzategui describes how his wife and two young children have struggled to pay the rent and bills, and even struggled to have enough to eat, while he is in detention. See Uzategui Decl. ¶¶ 24, 31-32.
Finally, in addition to the medical, emotional, and economic harms resulting from detention, the petitioners have suffered and will continue to suffer constitutional violations. See discussion infra at 23-26, 30-31. Such violations by definition qualify as irreparable harm. See, e.g., Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). Because the petitioners are placed in imminent risk of all these severe harms related to the unlawful deprivation of their liberty, they have demonstrated irreparable harm.
II. THE PETITIONERS HAVE A CLEAR AND SUBSTANTIAL LIKELIHOOD OF SUCCEEDING ON THE MERITS
The New York Field Office’s generalized policy of refusing to provide an individualized custody determination to virtually everyone it arrests violates multiple federal statutes and the United States Constitution.6 First, the No-Release Policy violates the INA and its implementing regulations—which require an individualized custody determination within 48 hours of arrest— and must be set aside as contrary to law pursuant to the APA. Second, ICE separately and independently violated the APA by departing from prior policy sub silentio without providing any
6 Even if the Court were to find that the petitioners had not shown a clear and substantial likelihood of succeeding on the merits of these arguments —which they have—here they need only show a “serious question going to the merits,” since the balance of hardships “tip[s] decidedly in [their] favor.” Citigroup Glob. Markets, Inc., 2014 WL 3858509, at *2.
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justification for doing so. Third, pursuant to a separate requirement of the APA, the No-Release Policy needed to go through notice-and-comment rulemaking, which it did not. Fourth, ICE’s violation of its own rules and regulations must be struck down pursuant to the Supreme Court’s decision in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). Finally, by denying people with disabilities meaningful and equally effective access to their bond hearings and immigration benefits, the No-Release Policy violates the Rehabilitation Act and DHS’s own regulations implementing the Act.
A. The No-Release Policy is Contrary to the INA and Its Implementing Regulations Because the INA and its implementing regulations require that ICE perform an individualized assessment of each putative class member’s appropriateness for release within 48 hours of their arrest, the No-Release Policy is contrary to law and must be set aside pursuant to the APA. The petitioners are detained pursuant to 8 U.S.C. § 1226(a), which provides that ICE “may continue to detain” a person it arrests or “may release” that person on bond or on parole. The regulations implementing this provision provide detailed criteria for ICE officers to exercise their discretion in making this custody determination. See 8 C.F.R. § 1236.1(c)(8). And the Board of Immigration Appeals’ own precedential decisions require that custody determinations be made based on an individualized assessment. The No-Release Policy violates those standards because the New York Field Office fails to make individualized custody determinations and has instead adopted a blanket policy of detention. Under binding Supreme Court case law, the No-Release Policy therefore violates Section 1226(a) and its implementing regulation on a plain reading of those authorities and as they must be construed to comply with the Constitution.
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(1) The No-Release Policy Unambiguously Violates the INA and its Implementing Regulations
The Supreme Court repeatedly has recognized that INA provisions that give executive branch officials discretion to release people pending a decision on removal require the governme nt to apply some level of individualized determination in making the custody decision. In INS v. Nat’l Ctr. for Immigrants’ Rights, Inc. (“NCIR”), the Court analyzed a provision of the INA stating that certain people in immigration detention “‘may, in the discretion of the Attorney General . . . be continued in custody; or . . . be released under bond . . . containing such conditions as the Attorney General may prescribe.’” 502 U.S. 183, 191 n. 7 (1991) (quoting 8 U.S.C. §1252(a)). The Court held that, in order to comply with the statute, the permissive “may” language required the Attorney General to perform an “individualized determination,” since “in the absence of such judgments, the legitimate exercise of discretion is impossible.” Id. at 194-95. Here, the detention statute provides exactly the same options to the Attorney General, who “may continue to detain” the person arrested by ICE, or “may release” that person on bond or conditional parole. Section 1226(a)(1)-(2). Consequently, in order to comport with NCIR, that decision must be based on an individualized determination and not on a blanket No-Release Policy.
Similarly, in Reno v. Flores, the Court considered the same detention statute as in NCIR, and it reiterated that the decision whether to detain or release requires “‘some level of individualized determination.’” 507 U.S. 292, 313 (1993) (quoting NCIR, 502 U.S. at 194). In the context of children held in immigration detention, it held that the government may use “reasonable presumptions and generic rules” to guide detention decisions, but it held that an appropriate exercise of discretion also included “determinations that are specific to the individual and necessary to accurate application of the [implementing] regulation: Is there reason to believe the alien deportable? Is the alien under 18 years of age? Does the alien have an available adult relative
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or legal guardian? Is the alien’s case so exceptional as to require consideration of release to someone else?” Id. at 313-14.
Finally, in Jean v. Nelson, the Court considered a statutory provision permitting the Attorney General, “in his discretion,” to parole certain people held in immigration detention if their release would be “in the public interest.” 472 U.S. 846, 848 (1985) (citing 8 U.S.C. § 1182(d)(5)(A)). Again, the Court held that when immigration officials “exercise[d] their discretion,” the statute required them “to make individualized determinations of parole.” Id. at 857. Interpreting Jean, the Tenth Circuit held that the government’s failure to make individualized parole determinations violated a federal statute providing discretionary parole for asylum seekers. See Marczak v. Greene, 971 F.2d 510, 512-15 (10th Cir. 1992). The court interpreted the statute in light of parole regulations promulgated by the agency, which provided factors for the agency to weigh in considering release, and found the agency was required “to make a comprehens ive determination” in each individual case. See id. at 515. Applying Jean, the court reasoned that “as a logical matter, we do not see how an immigration official could base his decision on a general rule, given the Supreme Court’s requirement that the district director ‘make individualized determinations of parole.’” Id. (citing Jean, 472 U.S. at 857).
Here, because Section 1226(a) provides ICE with the discretion to release people on bond or recognizance, ICE officers cannot adopt a blanket detention policy and must conduct an individualized determination of whether detention is necessary. Like the regulations in Marczak, the implementing regulation here contains detailed instructions concerning the exercise of this discretion, providing that ICE officers may release an individual who “demonstrate(s) to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8).
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Furthermore, immigration courts and immigration officials have acknowledged just such an individualized assessment requirement. Section 1226(a) and its predecessor statute have been consistently interpreted by the Board of Immigration Appeals to authorize the detention of noncitizens contingent upon an individualized analysis of the two factors identified in the regulation: flight risk or danger to the community. See, e.g., Matter of Adeniji, 22 I. & N. Dec. 1102, 1112-13 (BIA 1999) (construing INA § 236(a) and 8 C.F.R. § 236.1(c)(8)). And the New York Field Office’s practice prior to adopting the No-Release Policy reflects that the office itself understood that its custody decisions required individualized consideration. Prior to mid-2017, that office released significant numbers of people who posed no risk of flight or danger to the community. In 2013 and 2014, about 40% of all people arrested by immigration officials in the New York City area were released or granted bond; between mid-2017 to September 2019, less than 2% were released on recognizance and under one-tenth of 1% had bond set. See Hausman Decl. ¶ 14.
The No-Release Policy is exactly the type of broad-based, generalized rule incompatib le with individualized determinations.7 Because the policy strips ICE officers of their discretion, requiring them to deny release in virtually every case, it unlawfully nullifies the statute’s and the regulation’s directive that officers “may” release people in ICE custody who do not pose a risk of flight or danger to the community. In the absence of individualized review, “the legitimate exercise of discretion is impossible.” NCIR, 502 U.S. at 194-95. Thus, the government’s No-Release
7 In a recent case involving ICE field offices denying parole in 92% to 100% of cases, the court held that “the numbers are irrefutable” and ICE had a categorical policy of “denying parole in virtually all cases.” Damus v. Nielsen, 313 F. Supp. 3d 317, 342 (D.D.C. 2018).
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Policy violates the INA and its implementing regulation. Because the policy is contrary to law, it should be enjoined and set aside under the APA. See 5 U.S.C. § 706(2)(A).8
(2) The Doctrine of Constitutional Avoidance Mandates That Section 1226(a) and Its Implementing Regulation Be Construed to Require Individualized Initial Custody Determinations
As described above, the statute is clear, and the Court need not invoke the principle of constitutional avoidance to find that the No-Release Policy violates Section 1226(a) and its implementing regulation. However, were the government to contend—contrary to BIA decisions and ICE’s own practice—that the statute and regulations somehow are ambiguous, constitutio na l concerns raised by any contrary reading of the law would require that any ambiguity be resolved by finding that the statute does not permit the New York Field Office’s blanket and unjustified detention policy. Specifically, if the statute permitted detention without any individualized determination, it would run afoul of the Due Process Clause.
Courts must read a statute to avoid serious constitutional doubts when it is “fairly possible” to do so. Zadvydas, 533 U.S. at 689; see also Clark v. Martinez, 543 U.S. 371, 381 (2005) (the avoidance canon “is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts”). In particular, courts have consistently “read significa nt limitations” into the “immigration statutes in order to avoid their constitutional invalidatio n. ” Zadvydas, 533 U.S. at 689; see also Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018) (the
8 In addition, ICE’s violation of its own regulations is arbitrary and capricious since “[i]t is axiomatic . . . that an agency is bound by its own regulations ” and “an agency action may be set aside as arbitrary and capricious if the agency fails to ‘comply with its own regulations.’” Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999, 1009 (D.C. Cir. 2014) (internal quotation marks and citations omitted); see also 5 U.S.C. § 706(2)(A).
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avoidance canon “permits a court to choose between competing plausible interpretations of a statutory text”) (internal quotation marks and emphasis omitted).
Here, the Court must construe Section 1226(a) to comply with the Due Process Clause pursuant to a fair reading of the statute. And “[f]reedom from imprisonment—from governme nt custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690. As a result, “[d]etention in connection with immigratio n proceedings is permissible only in ‘certain special and narrow nonpunitive circumstances’ . . ., where a special justification . . . outweighs the ‘individual’s constitutionally protected interest in avoiding physical restraint.’” Kouadio, 352 F. Supp. 3d at 238 (Hellerstein, J.) (quoting Zadvydas v. Davis, 533 U.S. 678, 690 (2001)). The Supreme Court has recognized two legitimate “special justifications” for immigration detention: “preventing flight” and “protecting the community. ” Zadvydas, 533 U.S. at 690-91. These are the same two justifications that the INA’s implement ing regulation require ICE officers to consider when determining a person’s custody status. The government cannot invoke either of these “special justifications” to explain the near-categorica l detention of the petitioners here; the New York Field Office detains virtually everyone it apprehends, including those it has assessed as being both a low flight risk and low risk of danger to the community.
As such, the Constitution does not permit a reading of the statute that grants the governme nt unlimited discretion to detain people absent any justification based on an assessment of their flight risk or danger to the community. In Zadvydas, the Supreme Court found that the words “may detain” in the INA did not confer “unlimited discretion” and could not be constitutiona lly interpreted to permit indefinite detention. See 533 U.S. at 697. Similarly, in R.I.L-R v. Johnson, the District Court for the District of Columbia applied the doctrine of constitutional avoidance to
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Section 1226(a), finding that it did not afford DHS unfettered discretion to detain people absent individualized assessments of their suitability for release. 80 F. Supp. 3d 164, 186-90 (D.D.C. 2015). Moreover, “[a]s the Second Circuit has made clear, . . . immigration regulations which are derived from and intended to protect constitutional rights are to be liberally applied.” Ying Fong v. Ashcroft, 317 F. Supp. 2d 398, 403 (S.D.N.Y. 2004) (Hellerstein, J.) (citing Montilla v. INS, 926 F.2d 162 (2d Cir.1991) and Waldron v. INS, 17 F.3d 511 (2d Cir.1993)). This is plainly the case here, as the statute’s implementing regulation safeguards a non-citizen “individua l's constitutionally protected interest in avoiding physical restraint.” Kouadio v. Decker, 352 F. Supp. 3d 235, 238 (S.D.N.Y. 2018) (Hellerstein, J.) (quoting Zadvydas, 533 U.S. at 690).
Section 1226(a) must therefore be construed here to preclude generalized, unjustified detention. Instead, it requires the government to conduct individualized initial custody determinations based on the justifications for detention identified in Zadvydas and in Section 1226(a)’s implementing regulations: whether the individual is a flight risk or a danger to the community. See Calderon v. Sessions, 330 F. Supp. 3d 944, 956 (S.D.N.Y. 2018) (finding a policy violates due process “[w]hen a government agency makes available an immigration process to a class of persons but then deprives a member of the class a fair opportunity to engage in the process, with no explanation or justification”). This is—at the very least—a “fairly possible” reading of the statute, Zadvydas, 533 U.S. at 689, since not only federal courts but, as noted above, immigration courts and even immigration officials in practice have so interpreted it.
For these same reasons, separate and apart from any question of statutory construction, the No-Release Policy violates the Due Process Clause. Even if the statute were to grant ICE unfettered discretion to wrench large numbers of people out of their communities and place them in detention without any individualized determination of whether there was “a special justification” that
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“outweighs the ‘individual’s constitutionally protected interest in avoiding physical restraint,’ ” Kouadio, 352 F. Supp. 3d at 238 (quoting Zadvydas, 533 U.S. at 690), the Constitution does not.
B. The No-Release Policy is Arbitrary and Capricious in Violation of the APA As an independent basis for relief, because the government has failed to announce or justify its adoption of the No-Release Policy, it is arbitrary and capricious and must be set aside on that basis alone. Under the APA, an agency is required to announce that it is shifting from a prior policy and must provide an explanation for why it is doing so. ICE has completely failed to do either, instead adopting the No-Release Policy sub silentio and without justification. An agency cannot depart from a prior policy sub silentio. It is “a longstanding principle of administrative law that ‘[a]n administrative agency has a duty to explain its ultimate action.’” Nat. Res. Def. Council v. Dep’t of Interior, 410 F. Supp. 3d 582, 596 (S.D.N.Y. 2019) (quoting Cablevision Sys. Corp. v. F.C.C., 570 F.3d 83, 92 (2d Cir. 2009)). When an agency changes its position, this “reasoned explanation” requirement “would ordinarily demand that it display awareness that it is changing position.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“Fox TV”); see also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016). Thus, “[a]n agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books.” Fox TV, 556 U.S. at 515. Instead, it must “displa y awareness that it is changing position and show that there are good reasons for the new policy.” Encino Motorcars, 136 S. Ct. at 2126 (internal quotation marks omitted). And “an agency must also be cognizant that longstanding policies may have “engendered serious reliance interests that must be taken into account.” Id. (internal quotation marks omitted). None of that happened here. ICE unlawfully changed its established policy of conducting individualized initial custody determinations based on flight risk and danger to the community— provided for in its own regulations, confirmed in BIA decisions, and evidenced by years of prior
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practice—when it silently adopted the No-Release Policy in 2017. See Saget v. Trump, 375 F. Supp. 3d 280, 355 (E.D.N.Y. 2019) (noting that the explanation requirement applies “equally to practices implied from agency conduct” and is “not limited to formal rules or official policies ”). The policy change here can plainly be implied by the agency’s conduct: in 2016, ICE allowed release or bond to about half of people assessed as a low risk of flight or danger to the community; since June 5, 2017, it has denied release or bond to nearly all of these people. See Hausman Decl. ¶ 14. ICE effected this policy change without “display[ing] awareness that it [wa]s changing position” or “show[ing] that there [we]re good reasons for the new policy.” See Fox TV, 556 U.S. at 515. Since the time of its enactment, DHS has not provided public notice or even acknowledged the policy change. See Encino Motorcars, 136 S. Ct. at 2126; R.F.M. v. Nielsen, 365 F. Supp. 3d 350, 383 (S.D.N.Y. 2019); Am. Wild Horse Pres. Campaign v. Purdue, 873 F.3d 914, 927 (D.C. Cir. 2017) (“The [agency’s] failure even to acknowledge its past practice and formal policies . . . let alone to explain its reversal of course,” is arbitrary and capricious). Moreover, because thousands of people seeking release have relied on the criteria articulated by the prior policy that ICE has effectively abandoned, ICE “must provide a more detailed explanation.” Fox TV, 556 U.S. at 515-16. Thus, the adoption of the No-Release Policy constitutes an arbitrary and capricious change in agency policy sub silentio in violation of the APA and should be set aside and enjoined as an arbitrary and capricious agency action. See id. at 514-16.
C. The No-Release Policy Violates the APA’s Notice and Comment Requirements Agencies are required to provide a public notice and comment period prior to an exercise of rulemaking authority. 5 U.S.C. § 553(b-c). Here, as another independent basis for relief, ICE’s implementation of the No-Release Policy—which included the modification of its risk assessment tool and the adoption of a blanket policy of detaining people without any individualized
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assessment—constituted such an exercise of rulemaking authority but was adopted without the required notice and comment.
Under the APA, agency “substantive” or “legislative” rules that “create new law, rights, or duties” must proceed through public notice and comment rulemaking. Time Warner Cable Inc. v. F.C.C., 729 F.3d 137, 168-69 (2d Cir. 2013) (internal quotations omitted). Where a policy does not “genuinely [leave] the agency and its decisionmakers free to exercise discretion” and “the action has binding effects on private parties or on the agency,” the agency has likely created a substantive or “legislative” rule. The Wilderness Soc. v. Norton, 434 F.3d 584, 595 (D.C. Cir. 2006) (internal quotation marks omitted); see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 7 (D.C. Cir. 2011) (“[A]n agency pronouncement will be considered binding as a practical matter if it . . . is applied by the agency in a way that indicates it is binding”) (citing Gen. Elec. Co. v. E.P.A., 290 F.3d 377, 383 (D.C. Cir. 2002)).
Accordingly, courts will find that an agency has adopted a substantive or legislative rule if agency decisionmakers rarely depart from a policy in practice. See U.S. Tel. Ass’n v. F.C.C., 28 F.3d 1232, 1234 (D.C. Cir. 1994) (policy was a legislative rule where defendant could only point to 8 exceptions out of 300 cases); McLouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317, 1319 (D.C. Cir. 1988) (same for 4 exceptions out of 100 cases); cf. Damus v. Nielsen, 313 F. Supp. 3d 317, 342 (D.D.C. 2018) (categorical policy existed where data showed parole denial rates ranging from 92% to 100%).9 Additionally, where “the substantive effect is sufficiently grave” then “notice
9 The fact that ICE officers exercise discretion in a vanishingly small number of cases does not allow ICE to evade the APA’s notice-and-comment requirements. See Make the Rd. New York v. McAleenan, 405 F. Supp. 3d 1, 50 (D.D.C. 2019) (rejecting argument that DHS policy could not be a substantive rule subject to notice and comment because “ICE officers retain discretion”); see also Elec. Privacy Information Center, 653 F.3d at 7 (that TSA agents had some discretion to stop using a screening tool at airports was less significant than the fact that “a passenger is bound to comply with whatever screening procedure the TSA is using on the date he is to fly at the airport from which his flight departs”). And indeed, courts have not required total uniformity in holding that a policy is, in fact, a
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and comment are needed to safeguard the policies underlying the APA.” Time Warner Cable, 729 F.3d at 168.
Here, ICE’s implementation of a blanket No-Release Policy, which included the modification of its risk-assessment tool, constituted a substantive or legislative rule requiring a public notice and comment period. The No-Release Policy imposes a new duty on ICE officers to detain all putative class members without any individualized assessment, and it plainly also affects the rights of class members. As such, it does not “genuinely [leave] the agency and its decisionmakers free to exercise discretion,” Wilderness Soc., 434 F.3d at 595 (internal quotation marks omitted), and it is instead “applied by the agency in a way that indicates it is binding,” Elec. Privacy Information Center, 653 F.3d at 7 (quoting Gen. Elec. Co., 290 F.3d at 383). After ICE adopted the No-Release Policy and manipulated its risk-assessment tool, the rate of release dropped precipitously from around 40% to less than 2%. Hausman Decl. ¶ 14. This included detaining approximately 97% of the people that ICE’s own risk-assessment tool classified as lowrisk. Id. ¶ 13. As to the risk-assessment tool itself, in the New York Field Office, ICE deviates from the tool’s “detain” recommendation is less than 1% of cases. Id. ¶ 10. The tool’s algorithmic classifications and custody recommendations deeply implicate the petitioners’ rights under the INA, the regulations, the Constitution, and the Rehabilitation Act. See discussion supra at 19-29, infra at 29-35. And as the data demonstrate, detention rates increased significantly after the modification to the risk assessment tool and the No-Release Policy’s implementation. Hausman Decl. ¶ 14. Moreover, the No-Release Policy plainly has and will continue to have grave substantive effects on those detained as a result. See Time Warner Cable, 729 F.3d at 168 (holding
substantive or legislative rule. See U.S. Tel. Ass’n, 28 F.3d at 1234; McLouth, 838 F.2d at 1319. A few rare exceptions cannot salvage an otherwise blanket policy.
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that notice-and-comment requirements apply when a rule “significantly affects substantive rights”). A policy that binds the agency, particularly in a manner that so directly effects the rights of individuals, is a quintessential substantive or legislative rule.
For these reasons, the No-Release Policy constitutes a substantive rule that could only have been properly adopted through notice-and-comment rulemaking. Given the absence of any such rulemaking, the policy should be set aside.
D. The No-Release Policy Must Be Struck Down Pursuant to the Accardi Doctrine Separate and apart from the violations discussed above, the No-Release Policy runs afoul of the “Accardi doctrine,” under which the government is bound by its regulations and the rules it has announced for itself. In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), the Supreme Court held that “regulations with the force and effect of law supplement the bare bones” of federal statutes, id. at 265, vacating a deportation order on the ground that the procedure that preceded the order did not conform to the relevant regulations, id. at 267–68. The Second Circuit has explained in the immigration context that Accardi doctrine “is premised on fundament a l notions of fair play underlying the concept of due process.” Montilla v. I.N.S., 926 F.2d 162, 167 (2d Cir. 1991). The Circuit later held, in Smith v. Resor, 406 F.2d 141 (2d Cir. 1969), that the Accardi rationale applies even when a court is reviewing “the merits of decisions made within the area of discretion delegated to administrative agencies,” since courts “have insisted that where the agencies have laid down their own procedures and regulations, those procedures and regulations cannot be ignored by the agencies themselves even where discretionary decisions are involved,” id. at 145. Consistent with Accardi, this Court held that it violated “due process of law” for ICE to fail to abide by its own regulations when these were “grounded in ‘a fundamental right derived from the Constitution or a federal statute, . . . even when the regulation requires more than would
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the specific provision of the Constitution or statute that is the source of the right.’” Ying Fong, 317 F. Supp. 2d at 403 (citing Waldron, 17 F.3d at 518). Similarly, in another decision in this circuit, when presented with a claim and a request for preliminary relief very similar to the one presented here, the court relied on Accardi to order ICE to adjudicate parole determinations in compliance with its binding parole determination procedures and based only on the criteria listed in those procedures. See Abdi, 280 F. Supp. at 410. For the reasons discussed above, see discussio n supra at 19-26, the No-Release Policy similarly violates an agency regulation, namely 8 C.F.R. § 1236.1(c)(8), and this Court similarly can order the relief requested by the petitioners.
E. The No-Release Policy Violates the Rehabilitation Act and Implementing Regulations
The No-Release Policy systematically and unnecessarily detains individuals with disabilities, and it violates the Rehabilitation Act because ICE officers complying with the policy are precluded from appropriately considering disability when making custody determinatio ns. Internal ICE memos estimate that about 15% of the individuals it detains have mental health disabilities, which is consistent with reports by other organizations, and the total number of people with all types of disabilities well exceeds that number. See Memorandum in Support of Class Certification (ECF 10) at 10, 15 (discussing sources). In detention, these individuals may experience severe harms and serious obstacles that arise from their disabilities, resulting in their being denied meaningful and equally effective access to their bond hearings before an Immigratio n Judge and to immigration relief. This denial violates the Rehabilitation Act and its implementing regulations, and ICE must therefore provide a reasonable modification in the form of an individualized custody determination that takes into account an individual’s disabilities.
To make out a violation of Section 504 of the Rehabilitation Act, a plaintiff need only show that: “(1) [they are] a qualified individual with a disability; (2) the defendant is subject to [] the
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Act[]; and (3) [they were] denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities, or [were] otherwise discriminated against by the defendant because of [their] disability.” Disabled in Action v. Bd. of Elections, 752 F.3d 189, 196-97 (2d Cir. 2014) (internal quotation marks omitted).
The petitioners readily meet the first two elements. Here, the putative Rehabilitation Act Subclass consists of individuals with disabilities under the Act. See Memorandum of Law in Support of Class Certification (ECF 10); see also 28 C.F.R. §§ 35.108; Velesaca Decl. ¶¶ 3-7; Uzategui Decl. ¶¶ 7-8, 26-30. And they are “qualified” for the relevant programs, services, or activities—seeking bond before an Immigration Judge and applying for immigration relief— because they meet the “essential eligibility requirements” to participate. See Mary Jo C. v. New York State & Local Ret. Sys., 707 F.3d 144, 155–57 (2d Cir. 2013) (quoting 42 U.S.C. § 12131(2)). The government is clearly subject to the Act, which applies to “any program or activity conducted by any Executive agency.” 29 U.S.C. § 794(a); see also Noel v. New York City Taxi & Limousine Comm’n, 687 F.3d 63, 68 (2d Cir. 2012) (“services, programs, or activities” is “a catch-all phrase that prohibits all discrimination by a public entity”).10
As to the third element, under the Act, an agency must “as a practical matter” provide individuals with disabilities “meaningful access to services, programs or activities to which [they are] legally entitled.” Wright v. New York State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (internal quotation marks omitted); see also Henrietta D. v. Bloomberg, 331 F.3d 261, 277 (2d Cir. 2003) (legal entitlement refers to whether someone meets the relevant eligibility requirements). DHS’s own implementing regulations require that the agency provide individuals with disabilities
10 Courts interpret the Rehabilitation Act and the Americans with Disabilities Act (ADA) interchangeably, as outside of a few “subtle distinctions” that are not relevant here courts will “treat claims under the two statutes identically.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
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with “equally effective” access, meaning “equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement in the most integrated setting appropriate to the individual’s needs.” 6 C.F.R. § 15.30(b)(1)(ii) & (b)(2). To show that an agency has failed to comply with these requirements, “the demonstration that a disability makes it difficult for a plaintiff to access benefits that are available to both those with and without disabilities is sufficient.” Henrietta D., 331 F.3d at 277.
The No-Release Policy makes it more difficult for people with disabilities to access their bond proceedings or immigration relief on account of their disabilities. As with Mr. Velesaca, detention can take such a toll on an individual with disabilities that they consider abandoning their case and letting themselves be deported—even when they have young children in the country. Velesaca Decl. ¶¶ 1, 6; Van Dalen Decl. ¶ 36. In such cases, detention has become a total obstacle to a government-administered benefit. Applying for relief also often involves recalling and communicating past trauma, which is particularly difficult for subclass members in detention who are not receiving adequate care or support. See Fernandez Aguirre v. Barr, No. 19-CV-7048 (VEC), 2019 WL 3889800, at *3-4 (S.D.N.Y. Aug. 19, 2019) (irreparable harm existed where person in immigration detention had PTSD and major depressive disorder, and detention was exacerbating these conditions, rendering it difficult for him to pursue his asylum case); see also discussion supra at 9-15. There are also logistical obstacles for detained subclass members, such as the now widespread use of videoconferencing instead of in-person appearances in court, that impose a particular burden on individuals with disabilities. For example, Immigration Judges can be less able to discern cognitive or mental health disabilities through videoconferencing, even if these would be evident in person. See United States Government Accountability Office, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing
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Management and Operational Challenges (June 2017), at 55 (describing a situation in which videoconferencing led to such an outcome) (attached to Supp. Hodgson Decl. as Exhibit J).
Detention also inflicts needless and severe harms on many individuals with disabilitie s, which interfere with their ability to manage even daily life, much less the complex and time intensive process of applying for bond and seeking immigration relief. The placement of individuals with disabilities in immigration detention causes numerous harms specific to their disabilities: interruption of mental or physical care that people received in the community, including the failure to provide life-saving medications; failure to respond to repeated medical complaints, including reports of acute pain; failure to screen, monitor, and respond to both physica l and mental health problems; unconscionable delays in needed care, including surgeries; heighte ned risk of infection and illness for individuals with preexisting conditions; denial of off-site care, including the failure to take a patient back to a neurosurgeon after spinal surgery; severe decompensation for individuals with mental health disabilities, to the point that they are sometime s placed in what is effectively solitary confinement; lack of basic aids for people with auditory, visual, or mobility-based disabilities, including the deprivation of a wheelchair for an extended period of time; and loss of the presence and assistance of people’s families or other community support that could otherwise help a person manage their conditions. Van Dalen Decl. ¶¶ 21-36.
Applying for bond or immigration relief is a complicated and time-consuming process. Oshiro Decl. ¶¶ 14-23. Yet individuals with disabilities in detention can be so debilitated that they can barely accomplish routine daily tasks, cannot concentrate, self-harm, or require urgent medical care. Van Dalen Decl. ¶ 34, 42-43; Ailing Justice at 10. It is vastly more difficult for them to navigate their immigration proceedings while receiving inadequate care and being forced to manage their own deteriorating physical and mental health in detention. As a result, unnecessar y
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detention under the No-Release Policy systematically denies individuals with disabilities equally effective and meaningful access to their bond proceedings and to immigration relief.
To remedy this, ICE must make the reasonable modification of not detaining individua ls with disabilities unless it determines that detention is necessary, and this determination must take into account special vulnerabilities such a person’s disability. “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.” Hargrave v. Vermont, 340 F.3d 27, 37–38 (2d Cir. 2003) (quoting 28 C.F.R. § 35.130(b)(7)). It is plainly reasonable to require ICE to provide individualized custody determinations to Rehabilitation Act Subclass members, since it was doing so prior to the adoption of the No-Release Policy. Similarly, it would be reasonable for ICE to take into account an individual’s disabilities since it has a number of ways of doing so, includ ing but not limited to asking people about any preexisting diagnoses or relying on initial screenings. Van Dalen Decl. ¶ 16. And indeed, ICE has in fact taken into account a person’s health needs in determining whether to release them in specific cases cited by the petitioners. Id. ¶ 44. For these same reasons, this modification also would not constitute a “fundamental alteration” to the agency’s process, Hargrave, 340 F.3d at 37–38—to the contrary, it would simply represent a return to ICE’s own preexisting policy.
In sum, the No-Release Policy, which dramatically increases the number of individua ls with disabilities who are unnecessarily detained, violates the Rehabilitation Act and its implementing regulations. ICE must therefore provide a reasonable modification of its detention policies in the form of individualized custody decisions for Rehabilitation Act Subclass members that take into account a person’s disability.
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III. A PRELIMINARY INJUNCTION WILL SERVE THE PUBLIC INTEREST The balance of equities and the public interest are decidedly in the petitioners’ favor. The
putative class and subclass seek an order that provides them with access to the procedural protections they are entitled to under the relevant statutes and the Constitution. See Am. Beverage Ass’n v. City & Cty. of San Francisco, 916 F.3d 749, 758 (9th Cir. 2019) (“‘[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.’”) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). Specifically, the petitioners seek nothing more than an opportunity through the process required by DHS’s own regulations to be considered for release if there is no legitimate government justification for detaining them.
The government’s unlawful policy deprives the petitioners of their liberty for prolonged periods and subjects them to a range of physical, psychological, and financial harms. In contrast, the government is unlikely to suffer any harm from a decision requiring it to follow its own regulations and past practice. There appears to be no legitimate justification for the government’s adoption of this cruel and unlawful policy and, in any event, no legitimate government interest warrants the violation of Section 1226(a), its implementing regulation, the Due Process Clause , and the Rehabilitation Act. After all, the “government suffers no harm from an injunction that merely ends unconstitutional practices and/or ensures that constitutional standards are implemented.” Doe v. Kelly, 878 F.3d 710, 718 (9th Cir. 2017) (citations omitted); see also L.V.M., 318 F. Supp. 3d 601, 620 (S.D.N.Y. 2018); Abdi, 280 F. Supp. 3d at 410.
In addition, a preliminary injunction would protect not only class members, but also the general public from the risk of COVID-19. In Dr. Meyer’s words, “[r]educing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.” Meyer Decl. ¶ 37. Lowering the number of particularly vulnerable individuals in detention facilities will also lessen the risk in those
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facilities. Meyer Decl. ¶¶ 37-39. Other experts echo Dr. Meyer’s evaluation, recommending that, in response to the threat of COVID-19, jails should “avoid holding people for low-level offenses” and that “[p]eople who aren’t a risk to public safety shouldn’t be held in a jail.” Wetsman, Prisons and Jails Are Vulnerable To COVID-19 Outbreaks. An injunction is therefore not only in the interest of the class, it is “crucial” to the health of other individuals in ICE’s New York City-area facilities, correctional and medical staff at those facilities, and the nearby communities at large. Meyer Decl. ¶ 41. Accordingly, the balance of harms and the public interest decisively weigh in the petitioners’ favor and a preliminary injunction is in the public interest.
IV. REMEDY Pursuant to the No-Release Policy, ICE is currently unnecessarily and unlawfully detaining class members in facilities where they face a significantly heightened risk of harm and serious illness in a matter of days. For class members who are presently detained, the petitioner s respectfully request that the Court issue an order requiring ICE to provide them immediately with individualized custody determinations—preferably within the 48-hour period required by ICE’s own regulations. See 8 C.F.R. §§ 287.3(d), 1236.1(c)(8). Where an individual has been denied a lawful custody determination, courts in this district have similarly required the government to either provide them with such a determination within an expedited time frame or release them. See, e.g., Fernandez Aguirre v. Barr, No. 19-CV-7048 (VEC), 2019 WL 3889800, at *5 (S.D.N.Y. Aug. 19, 2019) (ordering that individual be granted bond hearing within four days or immediate ly released); see also United States v. Carson, 52 F.3d 1173, 1183–84 (2d Cir. 1995)) (noting that “a district court has broad discretion to enjoin possible future violations of law where past violatio ns have been shown”) (internal quotation marks omitted). Prospectively, future class members should not be placed in facilities that are “ticking time bombs” without a determination that detention is necessary. Accordingly, the petitioner s
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respectfully request that the Court order that individuals arrested by ICE’s New York Field Office be provided a prompt individualized custody determination before being placed into an ICE detention facility, as required by the statute and its implementing regulations.
Finally, particularly in light of the heightened risk of COVID-19 to class members with chronic conditions, the petitioners request that custody determinations for the Rehabilitation Act Subclass members must also take into account any special vulnerabilities such as disabilities. See Meyer Decl. ¶¶ 13, 29-30, 39.
CONCLUSION For the forgoing reasons, the petitioners respectfully request that the Court enter a preliminary injunction on behalf of the named petitioners, the class, and the subclass, requiring the government to promptly provide the petitioners with an individualized determination—or redetermination, for class members who already received a custody assessment pursuant to the NoRelease Policy—of whether detention is necessary based on individualized assessments of the petitioners’ flight risk, danger to the community, and disability and issue class-wide preliminar y declaratory relief ordering the same. Pursuant to its habeas jurisdiction, the Court should order release in the event of noncompliance with this procedural remedy.
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Dated: March 16, 2020 New York, N.Y.

Respectfully Submitted,
/s/ Robert Hodgson ROBERT HODGSON AMY BELSHER CHRISTOPHER DUNN MEGAN SALLOMI New York Civil Liberties
Foundation 125 Broad Street, 19th Floor New York, NY 10004 Tel: (212) 607-3300 rhodgson@nyclu.org
THOMAS SCOTT-RAILTON NIJI JAIN JENN ROLNICK BORCHETTA The Bronx Defenders 360 E. 161st Street Bronx, NY 10451 Tel: (718) 838-7878 njain@bronxdefenders.org
Counsel for Petitioners-Plaintiffs
On the brief: RYAN BREWER, The Bronx Defenders

 Law Graduate pending admission, practicing under supervision.
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 Case 1:20-cv-01803-AKH Document 44 Filed 03/16/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

JOSE L. VELESACA, on his own behalf and on behalf of others similarly situated,
Petitioners-Plaintiffs,
v.
THOMAS R. DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; MATTHEW ALBENCE, in his official capacity as the Acting Director for U.S. Immigration and Customs Enforcement; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD WOLF, in his official capacity as Secretary of the U.S. Department of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; CARL E. DUBOIS, in his official capacity as the Sheriff of Orange County,
Respondents-Defendants.

Case No. 1:20-cv-1803

DECLARATION OF ANDREA SÁENZ, ESQ.
I, Andrea Sáenz, declare under penalty of perjury and pursuant to 28 U.S.C. § 1746 that the following is true and correct to the best of my knowledge and belief:
1. I am Attorney-in-Charge of the New York Immigrant Family Unity Project (“NYIFUP”) at Brooklyn Defender Services (“BDS”). NYIFUP is New York’s city-funded assigned counsel program for indigent and low-income detained immigrants. I direct the work of 40 staff, including 24 attorneys, 11 support staff and 4 social workers who work with detained and nondetained noncitizen clients who are in removal proceedings. I have practiced exclusively immigration law for over eleven years and have specialized in removal and detention issues during that time.
2. BDS currently represents a number of people who have medical and mental health diagnoses that place them at serious risk if they were to contract the COVID-19 virus while detained. I
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am familiar with the facts of each case through reviewing case documents and speaking to the attorneys of record or their supervisors in each case.
3. Mr. F.B.G. has been detained at Orange County Jail under 8 U.S.C. § 1226(a) for 3.5 months without receiving a bond hearing. He is 47 years old and HIV positive. F.B.G. has been in the United States since 1991. He was detained by ICE while appearing for a scheduling hearing at the Spring Valley Village Court, and BDS has filed a motion to terminate his removal proceedings as a result of ICE improper actions during that arrest. Prior to detention, he resided with his wife, daughter, and three U.S. citizen grandchildren. His detention has caused his wife to miss medical appointments and struggle with a loss of income. While the whole family is suffering, the impact on one granddaughter is particularly acute, as F.B.G. was her central emotional support before he was detained. F.B.G. also appears to be suffering from HIVrelated cognitive impairment.
4. Mr. U.E.T. has been detained at Hudson County Correctional Facility under 8 U.S.C. § 1226(a) for two months without receiving a bond hearing. U.E.T. is 63 years old and has lived in the United States since 1992. U.E.T. was arrested as part of a home raid for which he was not the target. He has never been arrested by criminal law enforcement. U.E.T. is a primary support to his U.S. citizen fiancée who suffers from severe disabilities. Before being detained, U.E.T. was employed and files taxes. Once he marries his fiancée, he will be eligible for cancellation of removal for nonpermanent residents.
5. Mr. O.O. has been detained at Essex County Correctional Facility under 8 U.S.C. § 1226(a) for one month without receiving a bond hearing. He is 40 years old and is diabetic. He has lived in the US since 1999. He has 3 U.S.-citizen children, ages 16, 13, and 10. He has no criminal convictions and only has violations for disorderly conduct. O.O. has never missed any of his criminal court dates. He was arrested by ICE at his home before his court date for his open case. Before he was detained, O.O. had steady employment and has been paying taxes for at least 20 years.
6. Ms. M.M. has been detained at Bergen County Jail under 8 U.S.C. § 1226(a) for 1.5 months without receiving a bond hearing. M.M. is 33 years old and suffers from asthma. M.M. has no criminal convictions and a single arrest. Her case is likely to be adjourned in contemplation of dismissal at her next criminal court date scheduled for March 17, 2020. ICE arrested M.M. at home. During the arrest M.M. had an asthma attack and panic attack, but ICE still arrested and detained her.
7. Mr. T.Q. has been detained at Orange County Jail under 8 U.S.C. § 1226(a) for 7 months. T.Q. has been in United States since 1995, arriving at the age of 7. He has a U.S. citizen partner and 4 U.S. citizen children. ICE arrested him at home in September 2019. The immigration judge denied T.Q. bond based on what the judge deemed his “sheer number” of arrests despite having no violent convictions and no criminal drug convictions. T.Q. has numerous relief options, including adjustment of status, cancellation of removal, and asylum. T.Q. suffers from hypertension and arrhythmia and was hospitalized in life-threatening condition during his detention in November 2019.
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Brooklyn, NY March 16, 2020

______________________________ Andrea Sáenz, Esq.

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 Case 1:20-cv-01803-AKH Document 43 Filed 03/16/20 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

JOSE L. VELESACA, on his own behalf and on behalf of others similarly situated,
Petitioners-Plaintiffs, v.
THOMAS R. DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; MATTHEW ALBENCE, in his official capacity as the Acting Director for U.S. Immigration and Customs Enforcement; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; and CARL E. DUBOIS, in his official capacity as the Sheriff of Orange County and the official in charge of the Orange County Jail,
Respondents-Defendants.

Case No. 1:20-cv-1803

DECLARATION OF MARINDA VAN DALEN
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
1. I am Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI). I have held this position since 2017 and contribute to the strategic direction of the program in a leadership role. I lead NYLPI’s Health in Immigration Detention litigation program and contribute in a leadership role to our multi-pronged program assessing and seeking to improve access to healthcare in immigration detention facilities in the New York City area. We launched this program in May 2015.
Background on New York Lawyers for the Public Interest Health Justice Program:
2. Founded over 40 years ago, NYLPI pursues equality and justice for all New Yorkers. NYLPI’s community-driven approach powers its work in the areas of civil rights and health, disability, immigrant, and environmental justice. NYLPI seeks lasting change

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through legal representation and litigation, community organizing, policy advocacy, pro bono service, public education. NYLPI’s Health Justice Program works to bring a racial justice and immigrant rights focus to health care advocacy in New York City and New York State. We work to: (1) challenge health disparities; (2) eliminate racial and ethnic discrimination and systemic and institutional barriers that limit universal access to health care; (3) promote immigrant and language access to health care, including representing undocumented and uninsured immigrants and people confined to immigration detention who have serious health care needs; and (4) address the social determinants of health so that all New Yorkers can live a healthy life.
3. NYLPI has a long commitment to immigrant justice and the challenges faced by immigrant communities, with work ranging from individual representation to statewide advocacy campaigns focused on access to healthcare. In 2000, NYLPI launched campaigns to improve immigrant access to health care, with a focus on the lack of language access and culturally appropriate services for immigrants. Years of individual and systemic advocacy led to State regulations in 2006 that require all private and public hospitals in New York State to provide skilled interpreters, translate important hospital forms into commonly used languages, and ensure that non-English speaking patients do not experience excessive delays because of language issues. In 2009 New York City Mayor Michael Bloomberg signed the Language Access in Pharmacies Act, drafted by NYLPI, requiring City pharmacy chains to provide translation and interpretation services, and in 2012 New York Governor Andrew Cuomo signed parallel legislation known as SafeRx, instituting the same requirements for State pharmacy and mail-order chains. In 2011 NYLPI helped lead a coalition to press the Governor to issue Executive Order 26, a statewide language access policy requiring state agencies that interact directly with the public to translate vital public documents into the most common non-English languages and provide interpretation services. NYLPI continues to monitor compliance with all of this legislation, and in 2017 secured a landmark settlement in a class action ensuring equal access for 10,000 Limited English Proficient people with disabilities who were excluded from the New York City Access-A-Ride paratransit system because it failed to provide translation and interpretation services. NYLPI is also long-standing co-counsel on Brad H. v. City of New York, which established the right to medical discharge planning for individuals with mental illness at Rikers Island.
4. After receiving numerous complaints from community members, immigration legal service providers, and advocates, NYLPI launched a project in May 2015 to document conditions in immigration detention and assist seriously ill immigrants in obtaining necessary medical care while detained. We interviewed advocates and affected individuals across the country to learn of patterns of harm. We uncovered a great need for focus on the conditions of confinement, and specifically access to healthcare.
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5. NYLPI is a leader in the New York City area on these issues. Our work focuses on people who are detained while they are in removal proceedings and whose cases are placed at Varick Street Immigration Court.
6. We operate a volunteer network of approximately 95 medical providers (NYLPI Medical Provider Network or MPN) who advocate along with lawyers on behalf of immigrants in detention who have serious medical conditions. The network seeks to improve, among other things, the care detention centers provide and gain the release of those with unmet medical needs. The medical providers volunteering with our medical-legal-community partnership have specialties such as neurology, psychiatry, endocrinology, cardiology, obstetrics, gynecology, mental health, and family medicine. We regularly present to and train doctors, residents, and nurses across New York City, including at Bellevue Hospital, the New York City Refugees and Asylees Health Coalition, Columbia Medical Center, Montefiore Human Rights and Social Justice Residents Group, and to nursing students at SUNY Downstate. We provide support for New York Immigrant Family Unity Project (NYIFUP) attorneys and community-based organizations whose clients lack adequate medical care.
7. NYLPI also litigates civil rights cases challenging the denial of appropriate medical care. We served as lead counsel in Charles v. Orange County and Charles v. United States, two lawsuits challenging the failure of Orange County Detention Center and ICE to provide mental health discharge planning to two individuals with serious mental health conditions discharged from detention and dumped on the streets. In Charles v. Orange County, in May 2019, the U.S. Court of Appeals for the Second Circuit affirmed the right to mental health discharge planning under the constitution and confirmed the legal standard for a constitutional violation in immigration detention as deliberate indifference to serious medical needs. We brought claims against the U.S. under the Federal Tort Claims Act, and the district court’s decision in that case sets persuasive precedent to implicate ICE in medical care breaches experienced by people in detention. Both cases subsequently settled for substantial sums for our clients.
8. NYLPI is also litigating two additional cases against Hudson County Detention Center, the contracted medical provider at the time the individuals suffered harm in detention, and individuals responsible for providing their medical care while they were confined. We brought one case on behalf of the family of an individual maltreated in detention who hemorrhaged to death within only a couple of months of being detained, and another on behalf of a person who experienced permanent health damage after approximately a year and a half in detention, deprived of the medical care he needed. Through each of these cases, NYLPI gathers additional information about conditions in detention and the
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processes of providing -- or failing to provide -- healthcare to people in immigration detention.
9. Since our Healthcare in Immigrant Detention Project’s founding in 2015, we have interviewed, advocated for, and/or received requests for medical provider referrals for nearly 150 people confined to immigration detention facilities in the New York-area. These individuals were detained at Hudson County Correctional Facility, Bergen County Jail, Essex County Correctional Facility, Elizabeth Detention Center, and Orange County Correctional Facility. From time to time we receive requests from outside New York City, and have been able to connect people in immigration detention to medical providers in Texas and California. Typically, we do not receive referrals for connection to a medical provider or any other assistance until the individual who is confined to immigration detention has met with an attorney or connected to a community-based organization.
10. Additionally, in February 2017 we published our findings in “Detained and Denied: Healthcare Access in Immigration Detention,” based on our investigative work and research, including interviewing 47 people detained or recently detained at Hudson County Correctional Facility, Bergen County Jail, or Orange County Correctional Facility.1 We recently completed a case file review of the nearly 100 individuals who contacted our network since this initial report and through the end of 2019. NYLPI will be publishing an updated version, “Still Detained and Denied,” in Spring 2020.
11. In response to our 2017 report, New York Senator Kirsten Gillibrand, along with eleven other senators, wrote a letter to the Secretary of the Department of Homeland Security regarding access to healthcare in detention. Our work has been profiled in national journals, our team members have been interviewed and quoted in national media, and we have presented on our work and our medical-legal-community partnership to national legal audiences. Additionally, the New York City Mayor’s Office of Immigrant Affairs has written in support of our project. Our staff members have testified before the U.S. Senate, the New York City Council and the New York State Assembly about the issues we have seen in our work, as detailed here.
12. The information referenced herein and that will be included in our updated report are based on interviews with people who are or have been detained, information NYLPI received in response to open records requests, and conversations with legal services providers, including the NYIFUP providers, community-based organizations, and
1 Available at http://www.nylpi.org/wp-content/uploads/2017/02/HJ-Health-in-Immigration-DetentionReport_2017.pdf.
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families of people in immigration detention. Information included from other sources, such as reports issued by other advocacy organizations, is cited accordingly. This information was collected in the ordinary course of NYLPI’s investigations and related work.
13. Although the information included herein is based on case file reviews of over 140 individual experiences, many of whom were connected with a medical provider to review their medical records or perform in-person consultations, we were unable to secure permission to include details of many people’s experiences in this declaration because of fear of retaliation. Even individuals who have secured immigration relief, fear action by the current administration and have chosen to not speak publicly, even anonymously, about their experience. This apprehension is shared by many immigration attorneys on behalf of their clients.
Overview of Healthcare Provision at New York City-Area Detention Facilities:
14. Immigrants detained by ICE in detention facilities are said to be held primarily to ensure that they attend future administrative hearings concerning their right to remain in the United States. In the New York City area, immigrants with removal cases in the New York City immigration court are detained in jails including Hudson County Correctional Facility in Kearny, NJ; Bergen County Jail in Hackensack, NJ; Essex County Correctional Facility in Newark, NJ; and Orange County Correctional Facility in Goshen, NY. These facilities are local county jails with which ICE contracts to provide bed space. Collectively, I refer to these facilities throughout as “the NYC-area jails.”
15. ICE has signed “Non-Dedicated Inter-Governmental Service Agreements” (IGSAs) with jails across the country to house people in civil immigration detention in the same fashion that the jails house the facility’s criminal defendant population. ICE pays a daily per-bed fee to the county. These county facilities then often contract with for-profit companies to provide medical services.
16. ICE has issued standards that require providing adequate medical care to people in its custody. Upon intake in a detention facility, a person is supposed to receive a full medical screening no later than 12 hours after arrival at the facility and a comprehensive health assessment within 14 days of arrival to determine individual health care needs. Each person should receive a handbook, which explains the process for requesting medical assistance at the facility.2
2 2019 National Detention Standards Sections 6.1(I) (Handbook); 4.3(A)(1) and (D) (Screening); 4.3(E) (Health Assessment).
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17. To receive medical assistance, a detained individual generally requests medical care from a kiosk in the living unit; the jails’ medical unit should receive the request, and the medical staff is supposed to assess the request within 24 hours to determine priority for care. When specific treatment is needed, the facility’s medical providers may submit requests to ICE for approval. When detained individuals need medical care that the facility is not equipped to provide, such as a surgery or a biopsy, they should be referred to hospitals outside of the correctional facility.3 For example, Hudson County has formal agreements with local medical facilities for confined people to receive emergency room services. The standards also provide requirements for discharge planning and transfer of medical records.4
18. Since 2000, ICE has issued four sets of “Detention Standards” to address conditions of confinement for people held in detention facilities. These standards provide guidelines for hundreds of county jails and prisons throughout the United States. Each facility that holds people in ICE custody is evaluated by a designated set of standards.5 The most robust standards were issued in 2011, referred to as the “2011 Performance Based National Detention Standards” (PBNDS), with a minimal update to non-relevant pieces in December 2016 -- yet ICE has always allowed many facilities to continue to follow the earlier and less robust iterations. In December 2019, the Trump administration issued adjustments to one of the earlier iterations, the 2000 National Detention Standards (NDS), which still applied to many facilities. The new 2019 NDS weakened many of already less robust provisions related to medical care, particularly related to oversight and accreditation.6 The above requirements are included in all iterations.
Inadequacies in Medical Care in the NYC-Area Detention Facilities
19. People in immigration detention at the NYC-area jails are confined in jail-like conditions. In some circumstances, we have observed that the county facility provides services to the criminal defendant population that actually are not provided to people in immigration detention.
3 2019 National Detention Standards Sections 4.3(I) (Sick Call); 4.3(A) (specialist and outside care). 4 2019 National Detention Standards Section 4.3 (Q)(3)(b) and (Q)(4). 5 For a list of ICE detention facilities and the standards by which they are evaluated, please see: https://www.ice.gov/doclib/facilityInspections/dedicatedNonDedicatedFacilityList.xlsx (last accessed Feb. 19, 2020). 6 Hudson County follows the 2008 PBNDS, Essex County follows the 2011 PBNDS, and Bergen County and Orange County now follow the 2019 NDS.
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20. Because of health disparities,7 many immigrants suffer from chronic, serious health conditions and disabilities that require specialized care. People in immigration detention disproportionately suffer from serious health conditions, such as cancer, HIV, heart disease, hypertension, diabetes, and mental illnesses. People with serious illnesses are particularly vulnerable when they are confined to immigration detention facilities, because they require consistent and comprehensive care to manage their health. Many of these individuals have access to consistent healthcare in the community through Medicaid or private insurance, but detention breaks that connection, and their treatment is subsequently controlled by the immigration detention facility and ICE. Additionally, more people who have recently arrived after experiencing extreme trauma in nations in crisis are being detained, bringing new health concerns.
21. Once in detention, people face many barriers to quality healthcare, including lack of information on how to request medical assistance, institutional refusal of services, misdiagnosis, diagnosis of a less serious condition, lax oversight of their condition and/or treatment, failure to provide mental health discharge planning, and language access barriers. Confinement in immigration detention takes away a person’s own ability to address their illness -- something many people we interviewed had been doing successfully for years before detention. Frequently, health problems occur and/or worsen shortly after a person is detained.
22. Additionally, many people in detention have other indicia of vulnerability, such as limited English proficiency, experiences of trauma, cognitive impairments, and/or limited education, which can create additional barriers to accessing what little care does exist in detention facilities.
23. NYLPI has documented significant and systemic problems regarding the conditions of confinement at the New York City-area facilities with respect to medical treatment and mental health care. The most serious issues include ICE and facility medical staff denying individuals vital medical treatment, such as dialysis and blood transfusions; subjecting sick people in need of surgery to unconscionable delays; altering established
7 According to the United States Department of Health and Human Services, a health disparity is defined as, “a difference in health outcomes across subgroups of the population. Health disparities are often linked to social, economic, or environmental disadvantages.” See United States Department of Health and Human Services, HHS Action Plan to Reduce Race and Ethnic Health Disparities, https://minorityhealth.hhs.gov/npa/files/plans/hhs/hhs_plan_complete.pdf (last accessed Feb. 19, 2020). The American Medical Association refers to the findings of the Institute of Medicine, who state, among other things, that, “racial and ethnic disparities in healthcare occur in the context of broader historic and contemporary social and economic inequality, and evidence of persistent racial and ethnic discrimination in many sectors of American life.” Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare, Report and Recommendations on Health Disparities, 2003, available at https://www.ama-assn.org/delivering-care/patientsupport-advocacy/reducing-disparities-health-care (last accessed Feb. 19, 2020).
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treatment regimens; failing to consistently provide needed mental health services and needlessly placing people with mental health problems (and others) in solitary confinement; and ignoring repeated complaints and requests for care from people with serious symptoms, including severe pain.
24. Throughout the course of our investigations, NYLPI documented recurrent deficiencies in care. In speaking with people detained or recently detained, we documented cases where deficiencies and the harms they cause happened in the early days of detention, which could not be remedied even by release.
25. Even short periods of detention – for example the period between arrest and bond hearing – can cause serious, lasting harm, including health harm not remedied by subsequent release. For example, people may experience heightened risk of infection from even short stays in detention. Treatment regimens are disrupted twice: once as the person detained struggles to secure care in detention, and a second time upon departing detention and confronting the need to reestablish treatment relationships or reintegrate into treatment systems and supports, inform medical professionals of what has transpired while in detention, regain entry into health-related programs, etc.
26. Repeated patterns NYLPI observes throughout the New York City-area jails include the following:
27. Incomplete intake assessments: In multiple instances, ICE and its contractors failed to act on information received during intake about a newly detained individual’s medical history, including extreme delays in providing medication, with dangerous consequences to the patient’s health.
28. Denial of Continued Treatment Underway upon Admission: Many individuals enter detention with medical issues, including medical problems exacerbated by health disparities, that require regular treatment. People report that medication they were taking, often for years or decades, is altered or entirely discontinued once they are detained. Even with clear directions on prescription medication and its importance, ICE and jails refuse to continue proven treatment, often harming health. For seriously ill people cut off from their continuing care in their communities by virtue of being detained, interrupted treatment can have severe consequences.
29. Unprofessional and Inadequate Recording of Medical History and Care: In or out of detention, an individual’s medical records are a lifeline for medical providers to understand their needs. The records provide a critical basis for the ability to receive care. Clinical notes are essential for continuity of care. Medical professionals have an ethical
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obligation to manage medical records appropriately. NYLPI and MPN volunteer physicians, who have reviewed tens of thousands of pages of medical records from New York City-area jails, report that the medical records regularly fail to meet professional standards. Without medical records up to standards, people recently detained risk losing time vital to recovery and sustaining their health.
30. Language access barriers: NYLPI’s investigation found that ICE’s failure to provide interpretation and translation services prevented many limited English proficient people from accessing medical care while confined in immigration detention. In one situation, NYLPI and our MPN volunteer spoke to an individual who was scheduled for surgery and had it performed - without being provided with an interpreter. These actions violate ICE’s stated policies, as well as the American Medical Association’s Code of Medical Ethics, implicating informed consent requirements when providing medical care.
31. Delays in medical treatment: One of the most pervasive problems people confined to immigration detention report is the ongoing struggle for timely responses to their requests for medical care. Even when a person is seen at intake or after a complaint, most often by a nurse and not a doctor, it can be weeks or months before pain or symptoms are addressed. Individuals may meet with nurses for months on end before they see a doctor who can formally diagnose symptoms and appropriately create a treatment plan. During this delay, pain and suffering worsen and medical consequences become more dire. Further, where evaluations are finally completed, there is additional delay in carrying out medical recommendations for surgery, specialist visits, and specific medication. Failures occur at many levels: sometimes internal county jail medical or non-medical personnel caused the delays; other times, ICE is the cause of delays through its failure to make timely determinations of whether to approve medical care.
32. Denial of off-site care: NYLPI has interviewed many people who required off-site and specialized medical care, which ICE either did not provide or provided only after extensive delay. When a detained individual needs inpatient or outpatient services, the facility medical provider refers the request to ICE Field Medical Coordinators. ICE Field Medical Coordinators approve or deny offsite services for ICE detainees. Many people have reported that ICE often denies these requests without providing any alternative care or reason for the denial. For example:
• One man was experiencing rectal bleeding, which under the standard of care for a person of his age should quickly be seen by a gastroenterologist because of risks of colon cancer. This never happened.
• An individual with a variety of heart conditions was denied requests for specialist visits and simply given aspirin.
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• Another person had spinal surgery and was never taken for follow-up with the neurosurgeon specialist.
33. Failure to manage chronic conditions: Chronic illnesses, such as diabetes, cirrhosis, chronic heart and coronary diseases, hypertension, and depression and other mental health diagnoses require regular monitoring, evaluation, and treatment. The restrictive living conditions for people in immigration detention frequently exacerbate their health and well-being, particularly for people living with chronic illness. Deterioration can happen very quickly after being detained. NYLPI and our volunteers spoke to individuals in detention diagnosed with the above-referenced illnesses. In each circumstance, the person’s medical records indicated failures to provide adequate medical care addressing these chronic conditions, all of which had been maintained and controlled prior to detention. People with entirely manageable chronic illnesses have faced life-threatening complications while in immigration detention, and many have died, including an individual whose family NYLPI represents, who died about two months after being detained.
34. Ignoring acute pain: NYLPI’s investigation found that ICE and the New York City-area facilities routinely denied pain management treatment, leaving those with residual pain from prior injuries like car accidents or assaults to suffer excruciating pain. Interviewees reported pain so severe they were unable to carry out activities such as walking down the stairs or getting down from a bunk bed. One individual reported that his complaints were ignored until his pain was so extreme he had to be taken to the emergency room.
35. Failure to identify and manage mental health problems: Beyond the well-established negative psychological impact that confinement has upon people with mental illnesses,8 NYLPI’s investigation found that ICE and the New York City-area facilities routinely deny basic aspects of mental healthcare to people with mental illnesses. NYLPI’s investigation found that for those who enter detention with a mental health diagnosis and daily medication needs, there is inconsistent continuation of vital regimens. People reported a range of experience. While some did receive daily medication and regular, although not necessarily substantive, psychiatric visits, others experienced complete denial of treatment plans that had allowed them to manage their illnesses for years prior to detention. For people without a diagnosis prior to detention or who demonstrate new symptoms while detained, the situation can be particularly dire. NYLPI and MPN physicians spoke to many people who demonstrated obvious symptoms of mental health problems, yet their needs and requests for care and evaluation were ignored.
8 See, e.g., M. von Werthern, K. Robjant, Z. Chui, R. Schon, L. Ottisova, C. Mason & C. Katona, “The impact of immigration detention on mental health: a systematic review” BMC Psychiatry volume 18, Article number: 382 (2018).
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36. Failure to provide basic accommodations to individuals with physical and mental health disabilities: In our investigation we have seen disregard for the needs of people with disabilities. For example, one client was refused access to his wheelchair during an extended intake process, resulting in pain, anguish, and embarrassment. We have also spoken to people who were not provided aids for their visual or auditory disabilities, and our medical network volunteers have noted the ways in which detention and lack of care can cause individuals with mental health disabilities to decompensate, or that detention itself can cause mental health trauma to those without diagnoses.
37. Deportation by detention: NYLPI has also seen individuals in immigration detention accept deportation, giving up potential claims to stay in the United States, because of how much they are suffering in detention.
38. NYLPI is not the only organization to document widespread medical concerns at the New York City-area facilities.
39. In response to inadequate official inspections, Detention Watch Network (DWN) conducted an inspection in March 2016 of Hudson County Correctional Facility.9 In “Hudson County Correctional Facility: Immigrant Detention Inspection Series,” DWN interviews revealed “delays in medical care, inconsistencies with medical records and subsequent treatment, and inappropriate responses to health needs,” such as being told by medical providers to “drink water for serious pain” or being given eyedrops for an ear infection. On May 10, 2016, Community Initiatives for Visiting Immigrants in Confinement (CIVIC)10 filed a complaint against DHS, ICE, and Hudson County officials on behalf of 61 men and women detained by ICE at Hudson County Correctional Facility alleging substandard medical care.11 In February 2018, Human Rights First released a similar report highlighting deplorable access to physical and mental healthcare for the people detained at Hudson County Correctional Facility.12 In June 2018, Human Rights Watch released a report focused on the numerous deaths in immigration
9 Detention Watch Network, Hudson County Correctional Facility: Immigrant Detention Inspection Series (2016), available at https://www.detentionwatchnetwork.org/sites/default/files/Hudson%20Inspection_DWN_2016.pdf (last accessed Feb. 19, 2020). 10 Since filing this complaint, CIVIC has changed its name to Freedom for Immigrants. 11 The complaint is available at https://static1.squarespace.com/static/5a33042eb078691c386e7bce/t/5a9db03153450a5c990951d3/1520283698321/ New_Jersey_Medical_Complaint_Final.pdf (last accessed Feb. 19, 2020). 12 Human Rights First, Ailing Justice—New Jersey: Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention (2018), available at https://www.humanrightsfirst.org/press-release/newreport-documents-physical-mental-health-care-deficiencies-new-jersey-detention (last accessed Feb. 19, 2020).
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detention.13 In October 2019, the Center for American Progress published a report about failures and dangers related to women’s health access in immigration detention.14
40. The United States government itself has also concluded medical care appeared delayed and was not properly documented in NYC-area facilities, particularly Hudson County Detention Center, in a December 2017 Department of Homeland Security Office of Inspector General report.15 Additionally, in March 2019 the U.S. Department of Homeland Security received complaints about failure to provide adequate medical and mental health care and oversight at ICE-run detention facilities, including Elizabeth Contract Detention Center in New Jersey. That investigation is ongoing.16
41. The deep deficiencies in medical care provided to immigrants confined in detention can have serious and even life-threatening results very quickly after detention, as illustrated tragically by the case of Carlos Bonilla.17 As reported by Human Rights Watch in “Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention” and set forth in NYLPI’s pending lawsuit,18 Mr. Bonilla, a father of four, fatally hemorrhaged after approximately two months after being taken into civil immigration detention. He had cirrhosis, a chronic liver disease that, if left untreated, can cause deadly complications. Prior to ICE’s arresting him, Mr. Bonilla had been receiving medical treatment for years, including prescriptions for medications necessary to prevent and manage complications of cirrhosis. Mr. Bonilla reported his history of cirrhosis when he arrived at immigration detention, but the facility and medical providers did not evaluate the progression of Mr. Bonilla’s illness and provide treatment for cirrhosis and cirrhosis complications. Mr. Bonilla bled for at least three days before he -- tragically and preventably -- hemorrhaged to death. He was transported by ambulance to the hospital on the very date that he was scheduled to appear before an immigration judge to determine whether he would be released on bond to his family and community.
13 Human Rights Watch, Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention, June 20, 2018, available at https://www.hrw.org/report/2018/06/20/code-red/fatalconsequences-dangerously-substandard-medical-care-immigration (last accessed Feb. 19, 2020). 14 Center for American Progress, Immigration Detention Is Dangerous for Women’s Health and Rights, October 21, 2019, available at https://www.americanprogress.org/issues/women/reports/2019/10/21/475997/immigrationdetention-dangerous-womens-health-rights/ (last accessed Feb. 19, 2020). 15 United States Department of Homeland Security, Office Inspector General, Concerns about ICE Detainee Treatment and Care at Detention Facilities (2017), available at https://www.oig.dhs.gov/sites/default/files/assets/2017-12/OIG-18-32-Dec17.pdf (last accessed Feb. 19, 2020). 16 United States Department of Homeland Security, Office of Civil Rights and Civil Liberties, March 20, 2019, available at https://www.documentcloud.org/documents/6575024-ICE-Whistleblower-Report.html (last accessed Feb. 19, 2020). 17 NYLPI represents Mr. Bonilla’s family in federal litigation, Bonilla v. Hudson County, United States District Court for the District of New Jersey, Case No 19:13137 (2019). 18 Id.; supra note 8.
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42. Mr. Bonilla’s death is one of at least 17 reported at Hudson County Correctional Facility since 2013.19 The deaths prompted the Hudson County Freeholder Board to approve a resolution for a medical review board to analyze the deaths20 and to terminate its contract with health provider CFG Health Systems, LLC. Nonetheless, Essex County Correctional Facility continues to contract with CFG for healthcare services.21 In response to public outcry, including expressions of outrage after the death of Carlos Bonilla, in December 2018 Hudson County officials proposed to end their contract with ICE, although they included an option to renew.22 No other New York City-area detention jails have taken similar action.
43. NYLPI’s client Geurys Sosa also received egregiously inadequate medical care while confined by ICE to civil immigration detention for seventeen months at Hudson County Correctional Center.23 Prior to being detained, Mr. Sosa was receiving appropriate and uninterrupted treatment for two serious autoimmune diseases. Despite the medical staff knowing of Mr. Sosa’s diagnoses, he was wrongly denied essential medical treatment, including specialty care and medications he desperately required. As a result, Mr. Sosa’s health rapidly deteriorated, resulting in needless pain and suffering and contributing to permanent injury.
44. There are numerous other examples of how people with serious medical conditions are often unable to get appropriate—and sometimes life-saving—medical care until after they are released from detention:
a. For Mr. Gomez, Mr. Golden, and Mr. Xe, all detained at Hudson County Detention Facility, a consulting board-certified endocrinologist evaluated their medical records and found that, under the current regime overseen by ICE, all three people were at risk of infections and diabetic complications such as retinopathy, renal failure, heart attack or strokes—even while on their insulin
19 Id. at Dkt No. 1 (Complaint) para 8. 20 Terrence T. McDonald, The Jersey Journal, Hudson County to pay $70k to probe deaths of jail inmates (Aug. 11, 2017), available at https://www.nj.com/hudson/index.ssf/2017/08/hudson_county_to_pay_70k_to_probe_deaths_of_jail_i.html (last accessed Feb. 19, 2020). 21 CFG Health Systems, LLC, Client Locations, available at https://cfghealthsystems.com/client-locations/ (last accessed Feb. 19, 2020). 22 Alfaro, Maria, Democrats Battle Over a New Jersey Jail’s Contract With ICE, New York Times, August 31, 2018, available at https://www.nytimes.com/2018/08/31/nyregion/new-jersey-jails-ice.html (last accessed Feb. 19, 2020); see also Alvarado, Monsey, Hudson County is looking for other revenue so it can end contract to house ICE detainees, December 27, 2019, available at https://eu.northjersey.com/story/news/new-jersey/2019/12/27/hudson-njseeking-other-revenue-so-can-end-contract-house-ice-detainees/2749774001/ (last accessed Feb. 19, 2020). 23 NYLPI represents Mr. Sosa in federal litigation, Sosa v. Hudson County, United States District Court for the District of New Jersey, Case No 2:20-cv-00777 (2020). The case is co-counseled with Quinn Emanuel Urquhart & Sullivan LLP and Neighborhood Defender Service of Harlem.
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regimen. Hudson County only provided the detainees with a diet full of excessive complex carbohydrates including pasta, white bread, white rice, potatoes and cookies, all foods extremely detrimental to their health. Further, ICE refused to provide dentures to two people who, because of their diabetes, were suffering from gum disease and losing their teeth. ICE also refused to provide them with glasses despite their deteriorating vision, another type of diabetic complication. One individual reported rashes all over his body and pain in his leg and foot region that if left untreated could have led to amputation. All three individuals were eventually released on bond by an Immigration Judge based partly upon evidence of inadequate healthcare.
b. Mr. Ahmed suffers from second-degree heart atrioventricular block, a condition in which the normal electrical conduction in the heart that allows for a regular heart rate and rhythm is disrupted. He uses a pacemaker to treat his condition. Pacemakers need regular monitoring and maintenance to detect malfunctioning, preserve normal cardiac function, and prevent potentially life-threatening arrhythmias. Beginning in 2015, Hudson County Correctional Facility failed to monitor his pacemaker and put his life in jeopardy. Several times while feeling chronic symptoms of distress, Mr. Ahmed requested to see a specialist. ICE and Hudson County Correctional Facility repeatedly refused these requests. During an immigration hearing, Mr. Ahmed was so obviously in bad health, weak, and short of breath that the presiding judge called paramedics to take him to a hospital. At the hospital, doctors performed emergency surgery to replace his pacemaker battery. When he returned to detention, Mr. Ahmed experienced symptoms suggesting that his pacemaker was malfunctioning, including fatigue, shoulder pain and swelling, cramps in his foot, heart palpitations at night, difficulty breathing, dizziness, and inability to swallow. ICE and Hudson County Correctional Facility again refused to permit him to see a specialist who would have the technology needed to test whether the pacemaker was working properly.
c. Mr. Lugo was detained at Hudson County Correctional Facility and is the primary caregiver for his elderly partner who suffers from several chronic conditions. At the time of his detention, Mr. Lugo was diagnosed with Stage III Chronic Kidney Disease, a serious medical condition which requires close monitoring by a nephrologist (a doctor who specializes in diseases of the kidneys) because it can progress to kidney failure; which is life-threatening. Mr. Lugo was also diagnosed with diabetes and other collateral ailments such as cataracts disease, which poses a risk of blindness. Prior to his detention, Mr. Lugo regularly met with a nephrologist who closely monitored his disease. However, in the first five months of Mr. Lugo’s detention, he had bloodwork performed only once, and
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there was no indication that a nephrologist reviewed the results. In the same period, Mr. Lugo was not provided necessary medication or seen by an ophthalmologist to treat and monitor his eye disease. Further, while detained, the jail did not provide Mr. Lugo with meals that accommodated his diabetes or kidney disease; as a result, he was unable to eat and lost 18 pounds in the course of one week.
Impact of ICE’s Refusal to Release on the Health of Detained Individuals
45. ICE has the authority to release an individual on recognizance, on administrative bond, or on “humanitarian parole” for health-related reasons. But despite zealous advocacy by legal advocates, it is extremely difficult to secure the release of sick individuals from detention. In fact, NYLPI has found that virtually no one is released by ICE, even when ICE is clearly failing to meet medical needs. ICE frequently does not even respond to advocates’ requests for better care for clients.
46. NYLPI’s experience and our collaborations with legal service providers demonstrate that individuals in immigration detention risk severe damage to their health if they are not released back into their communities. NYLPI frequently connects individuals to medical providers to provide supporting letters to Immigration Judges outlining the lack of medical care at the detention facilities, which have helped people confined to immigration detention receive a reasonable bond and release. In recent years, NYLPI has coordinated numerous in-person consultations between volunteer medical providers and people in detention. Through these visits providers are able to gain greater insight into the client’s health conditions, and also observe general impressions, such as how detention itself harms mental health.
47. We have found that, even where an advocate has succeeded in securing the release of an individual with unmet medical needs, serious and possibly irreversible damage to the person’s health often has already occurred. As seen through the above examples, delay in care, improper care, and denial of care can result in needing emergency services, extensive hospitalizations, intensive care upon an individual’s release back into the community and permanent health damage – all for health issues that, if treated appropriately, could have reduced or averted injury, pain, and even death.
I declare under penalty of perjury that the foregoing is true and correct.

Executed __M__a_rc_h__1_0________, 2020

Marinda van Dalen

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Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I am being paid $1,000 for my time reviewing materials and preparing this report.
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
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7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have
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access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
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21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html. 8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5.
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Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 6 of 23
place.9 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in ICE’s NYC-Area Detention Facilities
25. I have reviewed the following materials in making my assessment of the danger of COVID-19 in the Bergen, Essex, Hudson, and Orange County jails (“ICE’s NYC-area jails”): (1) a declaration by Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI); (2) the report Detained and Denied: Healthcare Access in Immigration Detention, released by NYLPI in 2017; and (3) the report Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, released by Human Rights First in 2018.
26. Based on my review of these materials, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
27. The delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
28. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
29. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
30. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
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31. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
32. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
33. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
34. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
35. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
V. Conclusion and Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in ICE’s NYC-area jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.
38. As such, from a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in ICE’s NYC-area jails at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release.
39. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes) or who are over the age of 60. They are in even greater danger in these facilities, including a meaningfully higher risk of death.
40. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. Once a case of
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COVID-19 identified in a facility, it will likely be too late to prevent a widespread outbreak.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

I declare under penalty of perjury that the foregoing is true and correct.

March 1__5, 2020 New Haven, Connecticut

_______________________ Dr. Jaimie Meyer

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EXHIBIT A

Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 10 of 23
Jaimie Meyer, MD, MS, FACP

CURRICULUM VITAE

Date of Revision: Name: School:

November 20, 2019 Jaimie Meyer, MD, MS, FACP Yale School of Medicine

Education:
BA, Dartmouth College Anthropology 2000 MD, University of Connecticut School of Medicine 2005 MS, Yale School of Public Health Biostatistics and Epidemiology 2014

Career/Academic Appointments:
2005 - 2008 Residency, Internal Medicine, NY Presbyterian Hospital at Columbia, New York, NY 2008 - 2011 Fellowship, Infectious Diseases, Yale University School of Medicine, New Haven, CT 2008 - 2012 Clinical Fellow, Infectious Diseases, Yale School of Medicine, New Haven, CT 2010 - 2012 Fellowship, Interdisciplinary HIV Prevention, Center for Interdisciplinary Research on
AIDS, New Haven, CT 2012 - 2014 Instructor, AIDS, Yale School of Medicine, New Haven, CT 2014 - present Assistant Professor, AIDS, Yale School of Medicine, New Haven, CT 2015 - 2018 Assistant Clinical Professor, Nursing, Yale School of Medicine, New Haven, CT

Board Certification:
AB of Internal Medicine, Internal Medicine, 08-2008, 01-2019 AB of Internal Medicine, Infectious Disease, 10-2010 AB of Preventive Medicine, Addiction Medicine, 01-2018

Professional Honors & Recognition:

International/National/Regional

2018

NIH Center for Scientific Review, Selected as Early Career Reviewer

2017

Doris Duke Charitable Foundation, Doris Duke Charitable Foundation Scholar

2016

American College of Physicians, Fellow

2016

NIH Health Disparities, Loan Repayment Award Competitive Renewal

2016

AAMC, Early Career Women Faculty Professional Development Seminar

2014

NIH Health Disparities, Loan Repayment Program Award

2014

NIDA, Women & Sex/Gender Differences Junior Investigator Travel Award

2014

International Women's/Children's Health & Gender Working Group, Travel Award

2014

Patterson Trust, Awards Program in Clinical Research

2013

Connecticut Infectious Disease Society, Thornton Award for Clinical Research

2011

Bristol Myers-Squibb, Virology Fellows Award

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Jaimie Meyer, MD, MS, FACP

2006 2005 2005 2000 2000

NY Columbia Presbyterian, John N. Loeb Intern Award American Medical Women’s Association, Medical Student Citation Connecticut State Medical Society, Medical Student Award Dartmouth College, Hannah Croasdale Senior Award Dartmouth College, Palaeopitus Senior Leadership Society Inductee

Yale University

2014

Women’s Faculty Forum, Public Voices Thought Leadership Program Fellow

Grants/Clinical Trials History:

Current Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Center for Interdisciplinary Research on AIDS (CIRA) 2019-20 Pilot Project Awards Optimizing PrEP’s Potential in Non-Clinical Settings: Development and Evaluation of a PrEP Decision Aid for Women Seeking Domestic Violence Services Tiara Willie Principal Investigator 2% $29,993.00
$29,993.00 7/11/2019 - 7/10/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

SAMHSA H79 TI080561 CHANGE: Comprehensive Housing and Addiction Management Network for Greater New Haven Principal Investigator 20% $389,054.00
$1,933,368.00 11/30/2018 - 11/29/2023

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project

Gilead Sciences, Inc. Investigator Sponsored Award, CO-US-276-D136 Delivering HIV Pre-Exposure Prophylaxis to Networks of Justice-Involved Women Principal Investigator 8% $81,151.00

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Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 12 of 23
Jaimie Meyer, MD, MS, FACP

period: Project period:

$306,199.00 6/19/2018 - 1/31/2020

Agency: I.D.#: Title: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA R21 DA042702 Prisons, Drug Injection and the HIV Risk Environment Principal Investigator 22% $129,673.00
$358,276.00 8/1/2017 - 7/31/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Doris Duke Charitable Foundation Clinical Scientist Development Award Developing and Testing the Effect of a Patient-Centered HIV Prevention Decision Aid on PrEP uptake for Women with Substance Use in Treatment Settings Principal Investigator 27% $149,959.00
$493,965.00 7/1/2017 - 6/30/2020

Past Grants Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA K23 DA033858 Evaluating and Improving HIV Outcomes in Community-based Women who Interface with the Criminal Justice System Principal Investigator 75% $149,509.00
$821,147.00 7/1/2012 - 11/30/2017

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year:

Robert Leet & Clara Guthrie Patterson Trust R12225, Award in Clinical Research Disentangling the Effect of Gender on HIV Treatment and Criminal Justice Outcomes Principal Investigator 10% $75,000.00

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Jaimie Meyer, MD, MS, FACP

Total costs for project

period:

$75,000.00

Project period:

1/31/2014 - 10/31/2015

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Bristol-Myers Squibb HIV Virology Fellowship Award Effect of newer antiretroviral regimens on HIV biological outcomes in HIVinfected prisoners: a 13 year retrospective evaluation Principal Investigator 10% $34,390.00
$34,390.00 12/1/2011 - 11/30/2012

Pending Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIMH R01 MH121991 Identifying Modifiable Risk and Protective Processes at the Day-Level that Predict HIV Care Outcomes among Women Exposed to Partner Violence Sullivan, Tami Principal Investigator 30% $499,755.00
$4,148,823.00 1/1/2020 - 12/31/2024

Invited Speaking Engagements, Presentations, Symposia & Workshops Not Affiliated With Yale:
International/National 2019: CME Outfitters, Washington, DC. "A Grassroots Approach to Weed out HIV and HCV in Special
OUD Populations" 2019: US Commission on Civil Rights, Washington, DC. "An Analysis of Women’s Health, Personal
Dignity and Sexual Abuse in the US Prison System" 2018: College of Problems on Drug Dependence, College of Problems on Drug Dependence, San
Diego, CA. "Research on Women who Use Drugs: Knowledge and Implementation Gaps and A Proposed Research Agenda" 2018: Clinical Care Options, Washington, DC. "Intersection of the HIV and Opioid Epidemics" 2016: Dartmouth Geisel School of Medicine, Hanover, NH. "Incarceration as Opportunity: Prisoner Health and Health Interventions" 2010: Rhode Island Chapter of the Association of Nurses in AIDS Care, Providence, RI. "HIV and Addiction"

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Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 14 of 23
Jaimie Meyer, MD, MS, FACP
Regional 2018: Clinical Directors Network, New York, NY. "PrEP Awareness among Special Populations of
Women and People who Use Drugs" 2018: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "HIV prevention for
justice-involved women" 2017: Clinical Directors Network, New York, NY. "Optimizing the HIV Care Continuum for People who
use Drugs" 2016: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "Topics in Infectious
Diseases" 2016: Connecticut Advanced Practice Registered Nurse Society, Wethersfield, CT. "Trends in HIV
Prevention: Integration of Biomedical and Behavioral Approaches"
Peer-Reviewed Presentations & Symposia Given at Meetings Not Affiliated With Yale: International/National
2019: CPDD 81st Annual Scientific Meeting, CPDD, San Antonio, TX. "Punitive approaches to pregnant women with opioid use disorder: Impact on health care utilization, outcomes and ethical implications"
2019: 14th International Conference on HIV Treatment and Prevention Adherence, IAPAC Adherence, Miami, FL. "Decision-Making about HIV Prevention among Women in Drug Treatment: Is PrEP Contextually Relevant?"
2019: 2019 NIDA International Forum, NIDA, San Antonio, TX. "Diphenhydramine Injection in Kyrgyz Prisons: A Qualitative Study Of A High-Risk Behavior With Implications For Harm Reduction"
2019: 11th International Women’s and Children’s Health and Gender (InWomen’s) Group, InWomen’s Group, San Antonio, TX. "Uniquely successful implementation of methadone treatment in a women’s prison in Kyrgyzstan"
2019: Harm Reduction International, Porto, Porto District, Portugal. "How does methadone treatment travel? On the ‘becoming-methadone-body’ of Kyrgyzstan prisons"
2019: APA Collaborative Perspectives on Addiction Annual Meeting, APA Collaborative Perspectives on Addiction Annual Meeting, Providence, RI. "Impact of Trauma and Substance Abuse on HIV PrEP Outcomes among Women in Criminal Justice Systems. Symposium: “Partner Violence: Intersected with or Predictive of Substance Use and Health Problems among Women.”"
2019: Society for Academic Emergency Medicine (SAEM), Worcester, MA. "Effects of a Multisite Medical Home Intervention on Emergency Department Use among Unstably Housed People with Human Immunodeficiency Virus"
2019: Conference on Retroviruses and Opportunistic Infections (CROI), IAS, Seattle, WA. "Released to Die: Elevated Mortality in People with HIV after Incarceration"
2019: 12th Academic and Health Policy on Conference on Correctional Health, 12th Academic and Health Policy on Conference on Correctional Health, Las Vegas, NV. "PrEP Eligibility and HIV Risk Perception for Women across the Criminal Justice Continuum in Connecticut"
2019: Association for Justice-Involved Female Organizations (AJFO), Atlanta, GA. "Treatment of Women’s Substance Use Disorders and HIV Prevention During and Following Incarceration"
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Jaimie Meyer, MD, MS, FACP

2018: 2018: 2018: 2018:
2018: 2018: 2018: 2017: 2017: 2017: 2017: 2017: 2017: 2016: 2015:

American Public Health Association (APHA) Annual Meeting, American Public Health Association (APHA) Annual Meeting, San Diego, CA. "New Haven Syringe Service Program: A model of integrated harm reduction and health care services" 12th National Harm Reduction Conference, 12th National Harm Reduction Conference, New Orleans, LA. "Service needs and access to care among participants in the New Haven Syringe Services Program" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "HIV risk perceptions and risk reduction strategies among prisoners in Kyrgyzstan: a qualitative study" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "Methadone Maintenance Therapy Uptake, Retention, and Linkage for People who Inject Drugs Transitioning From Prison to the Community in Kyrgyzstan: Evaluation of a National Program" NIDA International Forum, NIDA, San Diego, CA. "HIV and Drug Use among Women in Prison in Azerbaijan, Kyrgyzstan and Ukraine" 2018 Conference on Retroviruses and Opportunistic Infections (CROI), CROI, Boston, MA. "From prison’s gate to death’s door: Survival analysis of released prisoners with HIV" 11th Academic and Health Policy on Conference on Correctional Health, Academic Consortium on Criminal Justice Health, Houston, TX. "Assessing Concurrent Validity of Criminogenic and Health Risk Instruments among Women on Probation in Connecticut" IDWeek: Annual Meeting of Infectious Diseases Society of America, Infectious Diseases Society of America, San Diego, CA. "Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons (Oral presentation)" International AIDS Society (IAS) Meeting, International AIDS Society, Paris, Île-de-France, France. "Late breaker: Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons" NIDA International Forum, NIDA, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "Assessing Receptiveness to and Eligibility for PrEP in Criminal Justice-Involved Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" Annual Meeting of the Society for Applied Anthropology, Society for Applied Anthropology, Santa Fe, NM. "Where rubbers meet the road: HIV risk reduction for women on probation (Oral presentation)" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Palm Springs, CA. "An Event-level Examination of Successful Condom Negotiation Strategies among College Women" CDC National HIV Prevention Conference, CDC, Atlanta, GA. "Beyond the Syndemic: Condom Negotiation and Use among Women Experiencing Partner Violence (Oral presentation)"

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Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 16 of 23
Jaimie Meyer, MD, MS, FACP

2015: 2015: 2014: 2014: 2014: 2013: 2013: 2012: 2012: 2012: 2011:

International Harm Reduction Conference, International Harm Reduction, Kuala Lumpur, Federal Territory of Kuala Lumpur, Malaysia. "Evidence-Based Interventions to Enhance Assessment, Treatment, and Adherence in the Chronic Hepatitis C Care Continuum" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Phoenix, AZ. "Violence, Substance Use, and Sexual Risk among College Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" College on Problems in Drug Dependence (CPDD), College on Problems in Drug Dependence (CPDD), San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Boston, MA. "Longitudinal Treatment Outcomes in HIVInfected Prisoners and Influence of Re-Incarceration" HIV Intervention and Implementation Science Meeting, HIV Intervention and Implementation Science Meeting, Bethesda, MD. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Atlanta, GA. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Correlates of Retention in HIV Care after Release from Jail: Results from a Multi-site Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Frequent Emergency Department Use among Released Prisoners with HIV: Characterization Including a Novel Multimorbidity Index" 5th Academic and Health Policy Conference on Correctional Health, 5th Academic and Health Policy Conference on Correctional Health, Atlanta, GA. "Effects of Intimate Partner Violence on HIV and Substance Abuse in Released Jail Detainees" IAPAC HIV Treatment and Adherence Conference, IAPAC, Miami, FL. "Adherence to HIV treatment and care among previously homeless jail detainees"

Regional 2019: Connecticut Infectious Disease Society, New Haven, CT. "Preliminary Findings from a Novel
PrEP Demonstration Project for Women Involved in Criminal Justice Systems and Members of their Risk Networks" 2017: Connecticut Public Health Association Annual Conference, Connecticut Public Health Association, Farmington, CT. "The New Haven syringe services program" 2014: Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Longitudinal Treatment Outcomes in HIV-Infected Prisoners and Influence of ReIncarceration"

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Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 17 of 23
Jaimie Meyer, MD, MS, FACP

2013: 2011:

Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Emergency Department Use by Released Prisoners with HIV"

Professional Service:
Peer Review Groups/Grant Study Sections 2019 - present Reviewer, NIDA, NIH Reviewer: RFA-DA-19-025: HEAL Initiative: Justice Community
Opioid Innovation Network (JCOIN) Clinical Research Centers 2019 - present Reviewer, Yale DCFAR Pilot Projects 2018 - present Reviewer, Center for Interdisciplinary Research on AIDS (CIRA) 2015 - present Reviewer, University of Wisconsin-Milwaukee Research Growth Initiative

Advisory Boards

2017

Advisor, HIV Prevention and Treatment in Cis-Gendered Women, Gilead Sciences, Inc.

Journal Service
Editor/Associate Editor 2019 - present Associate Editor, Journal of the International Association of Providers of AIDS Care
(JIAPAC), Section Editor: Sex and Gender Issues

Reviewer 2019 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, JAIDS Reviewer, Addiction Sci and Clin Pract Reviewer, Addictive Behav Reports Reviewer, AIDS Care Reviewer, Social Science and Medicine Reviewer, SpringerPlus Reviewer, Substance Abuse Treatment Prevention and Policy Reviewer, Women’s Health Issues Reviewer, Yale Journal of Biology and Medicine Reviewer, AIMS Public Health Reviewer, American Journal on Addictions Reviewer, American Journal of Epidemiology Reviewer, American Journal of Public Health Reviewer, Annals Internal Medicine Reviewer, BMC Emergency Medicine Reviewer, BMC Infectious Diseases Reviewer, BMC Public Health Reviewer, BMC Women’s Health

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Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 18 of 23
Jaimie Meyer, MD, MS, FACP

2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, Clinical Infectious Diseases Reviewer, Critical Public Health Reviewer, Drug and Alcohol Dependence Reviewer, Drug and Alcohol Review Reviewer, Epidemiologic Reviews Reviewer, Eurosurveillance Reviewer, Health and Justice (Springer Open) Reviewer, International Journal of Drug Policy Reviewer, International Journal of Prisoner Health Reviewer, International Journal of STDs and AIDS Reviewer, International Journal of Women’s Health Reviewer, JAMA Internal Medicine Reviewer, Journal of Family Violence Reviewer, Journal of General Internal Medicine Reviewer, Journal of Immigrant and Minority Health Reviewer, Journal of International AIDS Society Reviewer, Journal of Psychoactive Drugs Reviewer, Journal of Urban Health Reviewer, Journal of Women’s Health Reviewer, Open Forum Infectious Diseases Reviewer, PLoS ONE Reviewer, Public Health Reports

Professional Service for Professional Organizations
AAMC Group on Women in Medicine and Science (GWIMS) 2016 - present Member, AAMC Group on Women in Medicine and Science (GWIMS)

American College of Physicians 2016 - present Fellow, American College of Physicians 2013 - 2016 Member, American College of Physicians

American Medical Association 2005 - present Member, American Medical Association

American Medical Women’s Association 2011 - present Member, American Medical Women’s Association

American Society of Addiction Medicine 2009 - present Member, American Society of Addiction Medicine

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Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 19 of 23
Jaimie Meyer, MD, MS, FACP

Connecticut Infectious Disease Society 2011 - present Member, Connecticut Infectious Disease Society

Infectious Disease Society of America 2008 - present Member, Infectious Disease Society of America

InWomen’s Network, NIDA International Program 2013 - present Member, InWomen’s Network, NIDA International Program

New York State Medical Society 2005 - 2008 Member, New York State Medical Society

Yale University Service University Committees 2016 - 2018 Council Member, Leadership Council, Women’s Faculty Forum

Medical School Committees 2015 - 2016 Committee Member, US Health and Justice Course, Yale School of Medicine 2014 - present Committee Member, Yale Internal Medicine Traditional Residency Intern Selection
Committee

Public Service 2019 - present 2017 - present 2013 - present 2012 - present 2009 - 2011 2002 1998 - 1999

Faculty Member, Yale University Program in Addiction Medicine Faculty Member, Arthur Liman Center for Public Interest Law, Yale Law School Mentor, Women in Medicine at Yale Mentoring Program Faculty Member, Yale Center for Interdisciplinary Research on AIDS Instructor, Preclinical Clerkship Tutor, Yale School of Medicine Fellow, Soros Open Society Institute Fellow, Costa Rican Humanitarian Foundation

Bibliography:
Peer-Reviewed Original Research 1. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Emergency department use by released prisoners
with HIV: an observational longitudinal study. PloS One 2012, 7:e42416. 2. Chen NE, Meyer JP, Bollinger R, Page KR. HIV testing behaviors among Latinos in Baltimore City.
Journal Of Immigrant And Minority Health / Center For Minority Public Health 2012, 14:540-51. 3. Chitsaz E, Meyer JP, Krishnan A, Springer SA, Marcus R, Zaller N, Jordan AO, Lincoln T, Flanigan TP,
Porterfield J, Altice FL. Contribution of substance use disorders on HIV treatment outcomes and antiretroviral medication adherence among HIV-infected persons entering jail. AIDS And Behavior 2013, 17 Suppl 2:S118-27.

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Jaimie Meyer, MD, MS, FACP
4. Chen NE, Meyer JP, Avery AK, Draine J, Flanigan TP, Lincoln T, Spaulding AC, Springer SA, Altice FL. Adherence to HIV treatment and care among previously homeless jail detainees. AIDS And Behavior 2013, 17:2654-66.
5. Althoff AL, Zelenev A, Meyer JP, Fu J, Brown SE, Vagenas P, Avery AK, Cruzado-Quiñones J, Spaulding AC, Altice FL. Correlates of retention in HIV care after release from jail: results from a multi-site study. AIDS And Behavior 2013, 17 Suppl 2:S156-70.
6. Williams CT, Kim S, Meyer J, Spaulding A, Teixeira P, Avery A, Moore K, Altice F, Murphy-Swallow D, Simon D, Wickersham J, Ouellet LJ. Gender differences in baseline health, needs at release, and predictors of care engagement among HIV-positive clients leaving jail. AIDS And Behavior 2013, 17 Suppl 2:S195-202.
7. Meyer JP, Wickersham JA, Fu JJ, Brown SE, Sullivan TP, Springer SA, Altice FL. Partner violence and health among HIV-infected jail detainees. International Journal Of Prisoner Health 2013, 9:124-41.
8. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Frequent emergency department use among released prisoners with human immunodeficiency virus: characterization including a novel multimorbidity index. Academic Emergency Medicine : Official Journal Of The Society For Academic Emergency Medicine 2013, 20:79-88.
9. Meyer JP, Cepeda J, Springer SA, Wu J, Trestman RL, Altice FL. HIV in people reincarcerated in Connecticut prisons and jails: an observational cohort study. The Lancet. HIV 2014, 1:e77-e84.
10. Meyer JP, Zelenev A, Wickersham JA, Williams CT, Teixeira PA, Altice FL. Gender disparities in HIV treatment outcomes following release from jail: results from a multicenter study. American Journal Of Public Health 2014, 104:434-41.
11. Meyer JP, Cepeda J, Wu J, Trestman RL, Altice FL, Springer SA. Optimization of human immunodeficiency virus treatment during incarceration: viral suppression at the prison gate. JAMA Internal Medicine 2014, 174:721-9.
12. Meyer JP, Cepeda J, Taxman FS, Altice FL. Sex-Related Disparities in Criminal Justice and HIV Treatment Outcomes: A Retrospective Cohort Study of HIV-Infected Inmates. American Journal Of Public Health 2015, 105:1901-10.
13. Boyd AT, Song DL, Meyer JP, Altice FL. Emergency department use among HIV-infected released jail detainees. Journal Of Urban Health : Bulletin Of The New York Academy Of Medicine 2015, 92:10835.
14. Shrestha R, Karki P, Altice FL, Huedo-Medina TB, Meyer JP, Madden L, Copenhaver M. Correlates of willingness to initiate pre-exposure prophylaxis and anticipation of practicing safer drug- and sexrelated behaviors among high-risk drug users on methadone treatment. Drug And Alcohol Dependence 2017, 173:107-116.
15. Peasant C, Sullivan TP, Weiss NH, Martinez I, Meyer JP. Beyond the syndemic: condom negotiation and use among women experiencing partner violence. AIDS Care 2017, 29:516-523.
16. Wickersham JA, Gibson BA, Bazazi AR, Pillai V, Pedersen CJ, Meyer JP, El-Bassel N, Mayer KH, Kamarulzaman A, Altice FL. Prevalence of Human Immunodeficiency Virus and Sexually Transmitted Infections Among Cisgender and Transgender Women Sex Workers in Greater Kuala Lumpur, Malaysia: Results From a Respondent-Driven Sampling Study. Sexually Transmitted Diseases 2017, 44:663-670.
17. Hoff E, Marcus R, Bojko MJ, Makarenko I, Mazhnaya A, Altice FL, Meyer JP. The effects of opioidagonist treatments on HIV risk and social stability: A mixed methods study of women with opioid use disorder in Ukraine. Journal Of Substance Abuse Treatment 2017, 83:36-44.
11

Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 21 of 23
Jaimie Meyer, MD, MS, FACP
18. Rutledge R, Madden L, Ogbuagu O, Meyer JP. HIV Risk perception and eligibility for pre-exposure prophylaxis in women involved in the criminal justice system. AIDS Care 2018, 30:1282-1289.
19. Peasant C, Sullivan TP, Ritchwood TD, Parra GR, Weiss NH, Meyer JP, Murphy JG. Words can hurt: The effects of physical and psychological partner violence on condom negotiation and condom use among young women. Women & Health 2018, 58:483-497.
20. Loeliger KB, Altice FL, Desai MM, Ciarleglio MM, Gallagher C, Meyer JP. Predictors of linkage to HIV care and viral suppression after release from jails and prisons: a retrospective cohort study. The Lancet. HIV 2018, 5:e96-e106.
21. Odio CD, Carroll M, Glass S, Bauman A, Taxman FS, Meyer JP. Evaluating concurrent validity of criminal justice and clinical assessments among women on probation. Health & Justice 2018, 6:7.
22. Loeliger KB, Altice FL, Ciarleglio MM, Rich KM, Chandra DK, Gallagher C, Desai MM, Meyer JP. Allcause mortality among people with HIV released from an integrated system of jails and prisons in Connecticut, USA, 2007-14: a retrospective observational cohort study. The Lancet. HIV 2018, 5:e617-e628.
23. Loeliger KB, Meyer JP, Desai MM, Ciarleglio MM, Gallagher C, Altice FL. Retention in HIV care during the 3 years following release from incarceration: A cohort study. PLoS Medicine 2018, 15:e1002667.
24. Azbel L, Wegman MP, Polonsky M, Bachireddy C, Meyer J, Shumskaya N, Kurmanalieva A, Dvoryak S, Altice FL. Drug injection within prison in Kyrgyzstan: elevated HIV risk and implications for scaling up opioid agonist treatments. International Journal Of Prisoner Health 2018, 14:175-187.
25. Peasant C, Montanaro EA, Kershaw TS, Parra GR, Weiss NH, Meyer JP, Murphy JG, Ritchwood TD, Sullivan TP. An event-level examination of successful condom negotiation strategies among young women. Journal Of Health Psychology 2019, 24:898-908.
26. Ranjit YS, Azbel L, Krishnan A, Altice FL, Meyer JP. Evaluation of HIV risk and outcomes in a nationally representative sample of incarcerated women in Azerbaijan, Kyrgyzstan, and Ukraine. AIDS Care 2019, 31:793-797.
27. Rhodes T, Azbel L, Lancaster K, Meyer J. The becoming-methadone-body: on the onto-politics of health intervention translations. Sociology Of Health & Illness 2019, 41:1618-1636.
28. Olson B, Vincent W, Meyer JP, Kershaw T, Sikkema KJ, Heckman TG, Hansen NB. Depressive symptoms, physical symptoms, and health-related quality of life among older adults with HIV. Quality Of Life Research : An International Journal Of Quality Of Life Aspects Of Treatment, Care And Rehabilitation 2019.
Chapters, Books, and Reviews 29. Azar MM, Springer SA, Meyer JP, Altice FL. A systematic review of the impact of alcohol use
disorders on HIV treatment outcomes, adherence to antiretroviral therapy and health care utilization. Drug And Alcohol Dependence 2010, 112:178-93. 30. Meyer JP, Springer SA, Altice FL. Substance abuse, violence, and HIV in women: a literature review of the syndemic. Journal Of Women's Health (2002) 2011, 20:991-1006. 31. Meyer JP, Chen NE, Springer SA. HIV Treatment in the Criminal Justice System: Critical Knowledge and Intervention Gaps. AIDS Research And Treatment 2011, 2011:680617. 32. Springer SA, Spaulding AC, Meyer JP, Altice FL. Public health implications for adequate transitional care for HIV-infected prisoners: five essential components. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2011, 53:469-79.
12

Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 22 of 23
Jaimie Meyer, MD, MS, FACP
33. Chen NE, Meyer JP, Springer SA. Advances in the prevention of heterosexual transmission of HIV/AIDS among women in the United States. Infectious Disease Reports 2011, 3.
34. Meyer J, Altice F. HIV in Injection and Other Drug Users. Somesh Gupta, Bhushan Kumar, eds. Sexually Transmitted Infections 2nd ed. New Delhi, India: Elsevier, 2012: 1061-80. ISBN 978-81312-2809-8.
35. Meyer JP, Althoff AL, Altice FL. Optimizing care for HIV-infected people who use drugs: evidencebased approaches to overcoming healthcare disparities. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2013, 57:1309-17.
36. Meyer J, Altice F. Chapter 47, Treatment of Addictions: Transition to the Community. Robert L. Trestman, Kenneth L. Appelbaum, Jeffrey L. Metzner, eds. Oxford Textbook of Correctional Psychiatry (Winner of the 2016 Guttmacher Award). Oxford University Press 2015. ISBN 9780199360574.
37. Meyer JP, Moghimi Y, Marcus R, Lim JK, Litwin AH, Altice FL. Evidence-based interventions to enhance assessment, treatment, and adherence in the chronic Hepatitis C care continuum. The International Journal On Drug Policy 2015, 26:922-35.
38. Mohareb A, Tiberio P, Mandimika C, Muthulingam D, Meyer J. Infectious Diseases in Underserved Populations. Onyema Ogbuagu, Gerald Friedland, Merceditas Villanueva, Marjorie Golden, eds. Current Diagnosis and Treatment- Infectious Diseases. McGraw-Hill Medical 2016.
39. Meyer JP, Womack JA, Gibson B. Beyond the Pap Smear: Gender-responsive HIV Care for Women. The Yale Journal Of Biology And Medicine 2016, 89:193-203.
40. Meyer JP, Muthulingam D, El-Bassel N, Altice FL. Leveraging the U.S. Criminal Justice System to Access Women for HIV Interventions. AIDS And Behavior 2017, 21:3527-3548.
41. Shrestha R, McCoy-Redd B, Meyer J. Pre-Exposure Prophylaxis (PrEP) for People Who Inject Drugs (PWID). Brianna Norton, Ed. The Opioid Epidemic and Infectious Diseases. Elsevier 2019.
42. Meyer JP, Isaacs K, El-Shahawy O, Burlew AK, Wechsberg W. Research on women with substance use disorders: Reviewing progress and developing a research and implementation roadmap. Drug And Alcohol Dependence 2019, 197:158-163.
Peer-Reviewed Educational Materials 43. The Fortune Society Reentry Education Project Detailing Kit. New York City Department of Health
and Mental Hygiene. October 2014 44. United Nations Office on Drugs and Crime. Vienna, Austria
Invited Editorials and Commentaries 45. Meyer JP. Capsule Commentary on Pyra et al., sexual minority status and violence among HIV
infected and at-risk women. Journal Of General Internal Medicine 2014, 29:1164. 46. Brinkley-Rubinstein L, Dauria E, Tolou-Shams M, Christopoulos K, Chan PA, Beckwith CG, Parker S,
Meyer J. The Path to Implementation of HIV Pre-exposure Prophylaxis for People Involved in Criminal Justice Systems. Current HIV/AIDS Reports 2018, 15:93-95. 47. Meyer JP. The Sustained Harmful Health Effects of Incarceration for Women Living with HIV. Journal Of Women's Health (2002) 2019, 28:1017-1018.
13

Case 1:20-cv-01803-AKH Document 42 Filed 03/16/20 Page 23 of 23
Jaimie Meyer, MD, MS, FACP
Case Reports, Technical Notes, Letters 48. Paul J. Bullous pemphigoid in a patient with psoriasis and possible drug reaction: a case report.
Connecticut Medicine 2004, 68:611-5. 49. How J, Azar MM, Meyer JP. Are Nectarines to Blame? A Case Report and Literature Review of
Spontaneous Bacterial Peritonitis Due to Listeria monocytogenes. Connecticut Medicine 2015, 79:31-6. 50. Vazquez Guillamet LJ, Malinis MF, Meyer JP. Emerging role of Actinomyces meyeri in brain abscesses: A case report and literature review. IDCases 2017, 10:26-29. 51. Harada K, Heaton H, Chen J, Vazquez M, Meyer J. Zoster vaccine-associated primary varicella infection in an immunocompetent host. BMJ Case Reports 2017, 2017. 52. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Answer to December 2017 Photo Quiz. Journal Of Clinical Microbiology 2017, 55:3568. 53. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Photo Quiz: Peripheral Blood Smear in a Ugandan Refugee. Journal Of Clinical Microbiology 2017, 55:33133314. Scholarship In Press 54. Hoff E, Adams Z, Dasgupta A, Goddard D, Sheth S, Meyer J. Reproductive Health Justice and Autonomy: A systematic review of pregnancy planning intentions, needs, and interventions among women involved in US criminal justice systems. J Women’s Health
14

 
 Case 1:20-cv-01803-AKH Document 67 Filed 03/31/20 Page 1 of 2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------- X

JOSE L. VELESACA and ABRAHAM CARLO :

UZATEGUI NAVARRO, on his own behalf and :

behalf of others similarly situated,

:

:

Petitioners-Plaintiffs, :

:

-against-

:

:

THOMAS R. DECKER, in his official capacity as :

New York Field Office Director for U.S. :

Immigration and Customs Enforcement; :

MATTHEW ALBENCE, in his official capacity as :

the Acting Director for U.S. Immigration and :

Customs Enforcement; UNITED STATES :

IMMIGRATION

AND

CUSTOMS :

ENFORCEMENT; CHAD WOLF, in his official :

capacity as Acting Secretary of the U.S. Department :

of Homeland Security; UNITED STATES :

DEPARTMENT OF HOMELAND SECURITY; :

CARL E. DUBOIS, in his official capacity as the :

Sheriff of Orange County,

:

:

Respondents-Defendants. :

-------------------------------------------------------------- X

ALVIN K. HELLERSTEIN, U.S.D.J.:

ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
20 Civ. 1803 (AKH)

Upon the findings and conclusions stated on the record at the oral argument

conducted telephonically on March 30, 2020, Plaintiffs’ motion for preliminary injunctive relief,

see ECF No. 40, is hereby granted as follows.

The Court grants preliminary injunctive relief, enjoining Defendant Thomas R.

Decker in his official capacity as New York Field Office Director for U.S. Immigration and

Customs Enforcement (“ICE”), and all successors appointed or acting, from using or applying

practices or policies relating to the discretion by ICE officers to release to the community on

recognizance or pursuant to bond, under Section 236 of the Immigration and Nationality Act,

1

Case 1:20-cv-01803-AKH Document 67 Filed 03/31/20 Page 2 of 2

 
 1 K3UVVELC

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x

3 JOSE L. VELESACA, et al,

4

Petitioners,

5

v.

20 CV 1803 (AKH)

6 CHAD WOLF, et al,

7

Respondents.

TELECONFERENCE (PI)

8 ------------------------------x

New York, N.Y.

9

March 30, 2020

2:32 p.m.

10

Before:

11

HON. ALVIN K. HELLERSTEIN,

12

District Judge

13

APPEARANCES

14

NEW YORK CIVIL LIBERTIES UNION

15

Attorneys for Petitioners

BY: CHRISTOPHER T. DUNN

16

MEGAN SALLOMI

ROBERT A. HODGSON

17

-AND-

THE BRONX DEFENDERS

18 BY: THOMAS SCOTT-RAILTON

NIJI JAIN

19

GEOFFREY S. BERMAN,

20

United States Attorney for the

Southern District of New York

21 BRANDON M. WATERMAN

Assistant United States Attorney

22

23

24

25

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

2 K3UVVELC

1

(Remote teleconference)

2

THE COURT: Okay. The record is now open.

3

This is Judge Alvin Hellerstein, presiding over the

4 case remotely, of Jose L. Velesaca and Abraham Carlo Uzategui

5 v. Thomas R. Decker, 20 CV 1803.

6

The court reporter is Martha Martin. And Ms. Martin

7 will now take the attendance of those who are present according

8 to the information given to her before.

9

(Attendance taken by court reporter)

10

THE COURT: Here are the rules of engagement as it

11 were. I have before me a motion for a preliminary injunction

12 made by the plaintiff. I understand that there will be two

13 speakers for the plaintiff, Robert Hodgson and Niji Jain. For

14 the defendants, Thomas Decker, in his official capacity as New

15 York field office director for U.S. Immigration and Customs

16 Enforcement, Brandon Waterman, Assistant U.S. Attorney appears.

17

Do I have this all correct so far?

18

MR. HODGSON: Yes, your Honor.

19

THE COURT: Hearing no objection, I take it as

20 correct.

21

Now, we're all on a conference call, and it's all

22 remote, and so it presents great difficulties in listening,

23 hearing, and speaking. Only one person can speak at a time,

24 otherwise the voices can't be heard.

25

We'll lead with Mr. Hodgson. I'm not sure we're going

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

3 K3UVVELC

1 to need Ms. Jain. When Mr. Hodgson presents his remarks, I'm

2 going to ask that you pause between paragraphs or complicated

3 sentences in case I have questions. I may ask Mr. Waterman to

4 comment here and there; but at the end of Mr. Hodgson's and, if

5 any, Ms. Jain's remarks, Mr. Waterman will speak.

6

Now, I've read the materials and I'm prepared. And

7 I'd like to offer these comments to begin with:

8

I do not believe that the Rehabilitation Act presents

9 much of a difficulty, because what is being done is not because

10 of any disability, but because of a general rule pertaining to

11 everyone. And Ms. Jain's request is really for special

12 treatment because someone is disabled. The law does not

13 provide special treatment. So I'm mostly interested in the

14 presentation that Mr. Hodgson will give.

15

And with regard to this, it seems to me that there is

16 a substantial issue in terms of likelihood of success; namely,

17 has there been a change in application of the law and

18 regulations or not. There's a factual issue presented with

19 regard to that and, to a lesser degree, is there irreparable

20 damage. And on that issue, although the parties dispute the

21 issue, I think it's pretty clear that the forced imprisonment

22 of someone when that person should be released presents an

23 irreparable damage to that person. The condition of a jail, no

24 matter how good, cannot equal the conditions of life, both in

25 terms of the responsibility of the person to those for whom he

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

4 K3UVVELC

1 is responsible and for his health and welfare, particularly in

2 this time of the COVID-19 virus.

3

So the main issue is likelihood of success. That has

4 various permutations. And with that introduction, I'll call

5 upon Mr. Hodgson to speak.

6

MR. HODGSON: Thank you, your Honor, may it please the

7 Court. We'd like to thank you as well, your Honor, for

8 agreeing to hear this matter so quickly.

9

To begin, I'll just reiterate that the petitioners

10 here were all arrested by ICE's New York field office and

11 detained without any meaningful opportunity to be considered

12 for relief, are seeking an injunction that simply orders ICE to

13 give them the individualized assessments that are required by

14 the INA, by ICE's own regulations, by the Constitution, and by

15 the Rehabilitation Act. I want to note, as we noted in our

16 brief, that the government has not argued that a no-release

17 policy, which denies individualized assessments during ICE

18 custody determinations would be lawful. It has not disputed

19 our legal arguments regarding that.

20

On the facts, as your Honor points out, we do have a

21 dispute about whether a new release policy exists. However,

22 the petitioners' facts overwhelmingly show that such a policy

23 does, in fact, exist; and none of the facts pointed to by the

24 government undermines that establishment.

25

What is here and what has not been contested is that

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

5 K3UVVELC

1 97 percent of putative class members, whom the government

2 itself deemed a low risk of flight and danger, have been denied

3 the opportunity for release or bond during the New York field

4 office's initial custody determination. This means that many,

5 many people whom the government have no justification to

6 detain, are stuck in prison, away from their families, without

7 any meaningful opportunity to be considered for release in the

8 middle of this dangerous pandemic, which is made significantly

9 more dangerous by the conditions of detention, as your Honor

10 noted.

11

Again, it is not contested here that many of these

12 people will be released once they are able to get a bond

13 hearing before an immigration judge, who's ostensibly using

14 similar factors as ICE to determine the appropriateness of

15 release: The risk of flight, and the risk of danger. The

16 petitioners here have educed a record of establishing each of

17 these facts, and they are not contested, because this is taken

18 from the government's own data.

19

I do want to address what the government has presented

20 as contradicting the existence of the no-release policy to show

21 that it does not, in fact, do so.

22

First -- and now I'm pointing to the fact that the

23 government points to the existence of a few exceptions from the

24 rule as proof that the no-release policy, quote, does not

25 exist. Of course, as we point out in our reply, the existence

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

6 K3UVVELC

1 of a few exceptions is neither logically nor legally sufficient

2 to show that a broad policy doesn't exist. We've pointed to

3 case law establishing this and simple logic establishing this.

4

Second, the few facts that are cited by ICE -- and I'm

5 looking here to Mr. Joyce's declaration -- I'm sorry, I heard a

6 beep, your Honor. Were you speaking?

7

THE COURT: Ignore the beep. There may be people

8 coming into the call. This is open to the press. We've posted

9 a number, and there may be people calling in who do not have to

10 identify themselves.

11

Just continue.

12

MR. HODGSON: Yes, your Honor.

13

So the few facts that are cited in Mr. Joyce's

14 declaration and the accompanying memorandum of law in support

15 of the government's contention -- and again, this is a bare

16 assertion that a no-release policy doesn't exist -- they only

17 exist in a single paragraph of that declaration. I'm looking

18 at paragraph 13 of the Joyce declaration which, again, appears

19 to contain the entirety of ICE's basis for asserting that the

20 no-release policy doesn't exist.

21

One of the facts that ICE points to is that about 2100

22 out of 2477 total arrests for the fiscal year 2019 involved

23 people with a conviction or a pending charge in a criminal

24 matter. Now, first, the text doesn't even purport to explain

25 the precipitous drop in release rate that the plaintiffs have

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

7 K3UVVELC

1 established. Again, between 2013 and mid 2017, people were

2 being released at the rate of about 40 percent during this

3 initial custody determination. Post mid 2017, suddenly it's

4 less than two percent.

5

The single fact of the number of people who either

6 have a conviction or a pending charge in a criminal matter from

7 2019 does not show any comparison and, therefore, cannot

8 explain this drop. And this is especially unpersuasive, given

9 that the petitioners have submitted data showing that the

10 number of people arrested without conviction is going up, not

11 down, as a result of the Trump Administration's enforcement

12 priority.

13

THE COURT: Where do I see that, Mr. Hodgson?

14

MR. HODGSON: Yes, your Honor.

15

That is both cited in our memorandum, but it is

16 specifically sourced from ECF 14-6, which is a fact sheet

17 regarding ICE enforcement activity in the New York City area.

18 So it's the first page of ECF 14-6.

19

THE COURT: Whose declaration is that attached to?

20

MR. HODGSON: That is attached to my declaration, the

21 declaration of Robert Hodgson in support of our preliminary

22 injunction motion.

23

And again, this is undisputed. It is well-established

24 that ICE's enforcement priorities changed with the Trump

25 Administration. And, in fact, ICE began arresting more and

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

8 K3UVVELC

1 more people without criminal activity, without criminal

2 convictions.

3

THE COURT: Starting what year?

4

MR. HODGSON: Starting in 2017 with the Trump

5 Administration. And this coincides, of course, with the

6 implementation of the no-release policy, with the fact that ICE

7 reformatted its written assessment tool so that it could no

8 longer recommend any form of release; it could no longer

9 recommend bond, it could no longer recommend release.

10 (inaudible) this happens in 2017.

11

THE COURT: I want to ask you one or two questions.

12

These are cases without criminal conviction. But the

13 statistics that you're reciting earlier, a function on

14 detention of any kind, including detentions after arrests or

15 before conviction, is there a distinction to be made?

16

MR. HODGSON: I want to make sure I understand your

17 Honor's question. It is true that, you know, the government is

18 putting forward their data about people who have both

19 convictions and pending charges in a criminal matter. So as

20 you know, that includes a vast swath of people who do not have

21 a conviction.

22

THE COURT: Yes. In fact, one of the two plaintiffs

23 was detained after an arrest for petty larceny.

24

MR. HODGSON: Yes, your Honor. So she would fall into

25 the government's number there, which, again, shows that these

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

9 K3UVVELC

1 are not people -- they seem to be using any association with

2 the criminal justice system as a proxy for a danger, right, or

3 risk of danger. But that is simply not the case when you are

4 talking about people like Mr. Uzategui, who has a single

5 pending petty larceny charge for allegedly shoplifting shoes

6 because his daughter was being made fun of for her clothes at

7 school. It is simply not plausible that this represents a

8 danger.

9

THE COURT: Your point is that a mere arrest alone

10 does not determine if a person is in danger of fleeing or in

11 danger of endangering the community.

12

MR. HODGSON: That's correct, your Honor.

13

THE COURT: The government does not make a distinction

14 in its -- in the static between convictions and pending

15 charges.

16

MR. HODGSON: That's correct.

17

THE COURT: A detention determination by an

18 immigration officer pursuant to 1226(a) would have to make that

19 determination, that individualized determination, according to

20 your contention, regardless of whether there is an arrest or

21 simply a pickup of a person thought to be subject to removal.

22

MR. HODGSON: Yes, your Honor.

23

THE COURT: Continue please.

24

MR. HODGSON: So just to recap, those are the two

25 reasons why this particular number -- and again, I'm pointing

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

10 K3UVVELC

1 to the very scant fact that the government can point to to

2 purportedly explain this precipitous drop in release

3 determination.

4

THE COURT: Let me just stop you, Mr. Hodgson.

5

I think you've made your point clear, and I understand

6 it. There are other considerations with regard to likelihood

7 of the merits. But I think this issue that you've just

8 discussed is the seminal issue of the case.

9

And let me ask Mr. Waterman to comment.

10

MR. WATERMAN: Yes, your Honor.

11

So this is Brandon Waterman with the government.

12

I think, as we've set forth in the papers, and as the

13 declaration of William Joyce, the deputy field office director

14 for ICE's New York field office, has stated under penalty of

15 perjury that there is no such policy of denying --

16 categorically denying release to all aliens subject to

17 nonmandatory detention under 1226(a). Mr. Joyce has laid out

18 in paragraph 12 -- as well as discussed in 13 -- how these

19 initial custody determinations are made. And ICE has and does

20 consider the individual circumstances with respect to these

21 custody determinations.

22

Mr. Hodgson was referring to certain numbers and

23 statistics about -- I think he was most recently about arrests

24 that, I think, in this current administration, since 2017, have

25 occurred without -- with individuals who don't have a criminal

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

11 K3UVVELC

1 history. But I don't think that the information that

2 Mr. Hodgson relies on differentiates between whether those are

3 initial arrests -- so that they would be 1226(a) aliens,

4 meaning that they are being arrested in the first instance to

5 being placed into removal proceedings -- as opposed to, for

6 instance, aliens who are subject to final removal orders who

7 might not have a criminal history, and this administration has

8 determined to pick them up. I don't think there's a

9 distinction in the numbers there.

10

THE COURT: Why is it important to drive a

11 distinction?

12

MR. WATERMAN: Yes, your Honor.

13

So the importance would be when Mr. Hodgson is talking

14 about an increase in number of arrests, aliens who are subject

15 to a final removal order are not treated the same because they

16 are detained under a different statute. Those individuals

17 would be detained under 8 U.S.C. 1231, aliens subject to a

18 final removal order, and would be detained pending their

19 removal from the United States.

20

THE COURT: Are they also entitled to the same kind of

21 determination as someone who is detained after an arrest?

22

MR. WATERMAN: No, your Honor, not with respect to

23 1226(a). 1226(a) applies generally to aliens who are being

24 arrested and being placed into removal proceedings. Aliens who

25 already have a final removal order have already gone through

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

12 K3UVVELC

1 that process, and they are being detained specifically for

2 removal. So in a way, it wouldn't make sense for ICE to

3 conduct that initial determination of whether to release them,

4 because they are being detained specifically for purposes of

5 being placed on a plane for removal.

6

I'm sorry.

7

THE COURT: Is it your point that the statistical

8 information presented by David Hausman is incorrect?

9

MR. WATERMAN: The government has not had an

10 opportunity to review all the data that Mr. Hausman relies on;

11 and it has not certainly had any opportunity in the limited

12 time that we've had to prepare for this to gather its own

13 information and data to provide. But based on the information

14 that the plaintiffs have provided, it's a general, broad amount

15 of information that's not specific necessarily to their claims.

16

Again, my point is that even if there was an increase

17 in arrests of aliens without criminal histories, they aren't

18 necessarily 1226(a) detainees, they have to be aliens --

19

THE COURT: There may be a statistical flaw in the

20 basis of information, but the comparison of statistical

21 information is striking. For example, Mr. Hausman notes that

22 between 2013 and 2017, 16 percent of detainees were released,

23 and an additional 13 percent were released on bond.

24

In comparison, after June 6, 2017, until September

25 2019, two percent were released and .01 percent was released on

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

13 K3UVVELC

1 bond.

2

Now, the comparison between what is 29 percent and a

3 little over two percent is striking. If there wasn't an error

4 by lumping together detentions after arrests and detentions for

5 people on removal, the same error can be supposed to have

6 pervaded both sets of statistics, making them irrelevant,

7 making such a possible flaw irrelevant.

8

It's the comparison that is striking. And that

9 comparison has not been negated except by Mr. Joyce's

10 conclusory denial. That's the most striking feature that I

11 take from this. And I don't feel that the government has

12 answered that.

13

MR. WATERMAN: And yes, your Honor, I understand the

14 point. And I will again reiterate that this is certainly a

15 preliminary stage of the proceedings where the government has

16 not had a full opportunity to develop a record that it would

17 ordinarily submit here.

18

THE COURT: (Inaudible) Mr. Waterman, that it's true,

19 there's been very little time for anybody to deal with this.

20 But how now should I deal with this situation where such a

21 striking prima facie case has been presented? It may be that

22 in time the government can respond and demolish that case, but

23 I have to take the record where it stands now and make a

24 judgment.

25

And among the issues I have to decide is whether there

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1 has been a change in policy or practice after June of 2017.

2 And on the information that has been presented, the change is

3 glaring. It is very hard to rebut.

4

MR. WATERMAN: I understand your Honor's point.

5

And I think, again, our papers set forth the reasons

6 why we believe that the plaintiffs' numbers and inferences you

7 draw would be incorrect.

8

We do believe that at all times there is an exercise

9 of discretion, and the numbers would demonstrate that. Even on

10 that risk classification assessment software that the

11 plaintiffs rely heavily on, the majority of cases now are

12 referred to a supervisory detention officer who then makes that

13 ultimate determination of whether to release or to detain. And

14 even the numbers show that discretion is being exercised, and

15 individuals do ultimately get released, even though it may be a

16 small number of individuals.

17

And if I may, as well --

18

THE COURT: I studied that table, and it's hard for me

19 to draw anything from it. It may be that before this period of

20 2017 -- well, let me just recite the statistics.

21

What this table shows -- and it's paragraph 20, table

22 3 of the Hausman declaration -- is that through 2016, the

23 numbers of determinations made by supervisors were hardly any.

24 In 2017, there are 72 out of 244 total decisions of release or

25 not release made by supervisors. That's about 30 percent. In

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1 2018, it becomes 88 percent; and similarly, in 2019, it's 88

2 percent.

3

The inference that I think is reasonably to be drawn

4 from this is that the decisions not to release are kicked up to

5 supervisors rather than made by the immigration officers. But

6 the conclusion is no different.

7

So what I come to draw from this -- and I don't do

8 this yet competently. What I come to draw from this is that

9 the algorithm used by the government either has changed

10 significantly or, if it points to a situation where previously

11 there would have been a release, the issue is kicked up to a

12 supervisor who purportedly, in the exercise of discretion,

13 holds no release.

14

But it doesn't change the dramatic contrast that

15 Mr. Hausman offers in what happened before June 6, 2017, and

16 what happened afterwards. The fact that supervisors, rather

17 than immigration officers, are making the determination of no

18 release, to me, is either not relevant or an illustration of

19 just what Mr. Hausman is trying to bring out.

20

I think we've plumbed this issue enough. I'd like to

21 go on to another issue, unless, Mr. Waterman, I've not given

22 you an opportunity to say something you want to say.

23

MR. WATERMAN: Yes, your Honor.

24

This, again, is Brandon Waterman.

25

I can certainly get into it now or at my point, but I

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1 can offer your Honor some numbers for recent custody

2 redeterminations as we hinted to in our papers in light of the

3 current circumstances.

4

THE COURT: But I don't have this on the record. You

5 said a number of things that really are not documented. You

6 say that a greater number of people are being detained after

7 some kind of a criminal transaction. But we don't know what

8 the criminal transaction is; and if it's an arrest, as I said

9 before, I don't think it's really relevant to our purposes.

10

You've also said that there's been an increased number

11 of people who don't show up when they are supposed to show up,

12 but that's not documented either. And, of course, the fact

13 that there are numbers of people who don't show up does not

14 change the obligation under the statute of regulations to make

15 an individualized determination of the individual detainee.

16

You've also made the point that during this COVID

17 virus problem, which is really just a problem of two months --

18 it doesn't seem that way, it seems forever, but it's really

19 just a month or two months -- that there have been far fewer

20 detentions, that's to be expected. But, again, I don't think

21 that changes the picture.

22

I think I've got the points, Mr. Waterman. I'd like

23 to assess them and evaluate them.

24

But I'd like to go on to another issue. And I'll ask

25 Mr. Hodgson to comment on this:

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1

Let's suppose that you are right, Mr. Hodgson, in your

2 argument that there has been a significant change. Does the

3 statute 8, U.S.C., Section 1252(f) allow me to enjoin the

4 government for the benefit of some class that has not yet been

5 served by it?

6

Just another word on this. Section 242 of the

7 Immigration and Naturalization Act, 8, U.S.C., Section 1252(f),

8 provides generally that injunctions are allowed against the

9 implementation of the immigration and removal sections of the

10 immigration act only with respect to individuals and not to the

11 class as a whole. I'm looking for the exact words of the

12 statute, but that, I think, is a fair summary of it.

13

So Judge Nathan argued in the Vasquez case very

14 recently -- ruled rather, not argued -- that she cannot give an

15 injunction as to the class as a whole. Does that apply here,

16 Mr. Hodgson? Am I, regardless of whether you're right or

17 wrong, limited to giving relief to Mr. Velesaca and

18 Mr. Uzategui, or can I give it to the class?

19

MR. HODGSON: It does not apply, your Honor. You can

20 give relief to the class exactly as requested. And, in fact,

21 the government does not dispute that Section 1252(f)(1) would

22 not prevent you from simply ordering an injunction that directs

23 ICE to follow the law.

24

Sorry.

25

THE COURT: Why is that?

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1

MR. HODGSON: Because the language of 1252(f)(1) only

2 applies to injunctions that would enjoin or restrain the

3 operation of the law. And as Judge Nathan pointed out in

4 Vasquez-Perez, that only applies when you are not, in fact,

5 enforcing the law. The government does not contend -- in fact,

6 it concedes -- that 1252(f)(1) permits this Court to issue an

7 injunction that directs ICE to follow the law that wouldn't

8 enjoin or restrain the law.

9

THE COURT: Excuse me.

10

Do you so concede, Mr. Waterman?

11

MR. WATERMAN: The government would agree only to the

12 extent that the order or the injunction would be that ICE

13 conduct its initial custody determinations consistent with

14 Section 1226(a) in the implementing regulations. Anything that

15 goes beyond that, we would argue, as we did in the papers, that

16 that would be enjoining or restraining those provisions and

17 would be barred by 1252(f)(1).

18

THE COURT: Let's suppose I held that the government

19 was changing this policy without saying so, the Accardi

20 doctrine. Would I be not allowed to issue an injunction as to

21 the class? What's the government's position?

22

MR. WATERMAN: Yes.

23

And this is Brandon Waterman, for the government.

24

If your Honor were to determine that there is a --

25 number one, that there is a policy in place here, and that

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1 policy is unlawful, I think the whole point of an APA claim, if

2 you find that that policy is unlawful, would be to enjoin or

3 set aside that policy.

4

And so the relief obviously that would flow from that

5 is really that ICE would have to follow the law, basically

6 1226(a) and its implementing regulations. And that would be

7 the extent, generally, of the relief a court would grant, is

8 setting aside the unlawful policy and telling the government to

9 follow the law.

10

THE COURT: So if I understand you correctly, if I

11 were to find that from around June of 2017, ICE has not

12 followed the law, not given individual determinations, created

13 an algorithm that is contrary to its obligations under law, I

14 can enjoin those practices as to a class?

15

MR. WATERMAN: I think that's correct, yes, your

16 Honor. 1252(f)(1) would only prevent the Court from issuing

17 class-wide injunctive relief that would enjoin or restrain the

18 operation of the INA provision.

19

THE COURT: Yes. And I think the plaintiffs are

20 arguing that what the government has been doing is contrary to

21 the law. And so I think you both agree that if I so find, and

22 I'm correct, that I can give an injunction applicable to the

23 class.

24

That's so, right, Mr. Hodgson?

25

MR. HODGSON: This is Mr. Hodgson.

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1

Yes, your Honor. Absolutely.

2

THE COURT: That's so, Mr. Waterman, isn't that so?

3

MR. WATERMAN: Again, this is Mr. Waterman.

4

Yes, but, again, with reservation, your Honor. It

5 depends on exactly what relief we are talking about.

6

The plaintiffs, in their moving brief, had a

7 suggestion of requesting release as an option. It is the

8 government's position that if this Court were to order release,

9 that would certainly restrain or enjoin the operation of 1226,

10 and that would not be permissible under 1252(f)(1).

11

It would also be the government's position that

12 anything additional to what the statute and the regulations

13 require -- such as timelines or other criteria -- that ICE must

14 consider, that would also be beyond what the statute and the

15 regulations provide and would also be barred by (f)(1).

16

I don't think the plaintiffs made any statement

17 regarding either of those in their reply. They say only that

18 they'd be seeking the follow-the-law type of order, directing

19 ICE to comply with 1226(a) and its implementing regulations,

20 period.

21

THE COURT: Yes. I think I would agree with that.

22

And that's a very good introduction to the subject I

23 want to deal with next: What is the appropriate remedy,

24 assuming that I accept the proposition of Mr. Hodgson?

25

A couple of words on that.

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1

We all know that there's a difference in the standard

2 in obtaining a preliminary injunction, comparing an injunction

3 that stops an illegal act, as an injunction that requires an

4 act to be done, the latter being a mandatory injunction. And

5 there is a distinction between enjoining a practice and freeing

6 an individual as if it were a habeas corpus.

7

So this is not a habeas corpus. And I am not really

8 interested in ordering the INA or ICE to do anything other than

9 follow the law.

10

So the propositions that I am going to suggest to both

11 of you is that the proper scope of an injunction would be to

12 enjoin ICE -- and here I have problems, I could say, from not

13 following its practices between 2013 and 2017, or for following

14 an algorithm which has changed the determinations or something

15 of that nature.

16

I'm having trouble defining just what relief I can

17 give. But, Mr. Hodgson, I'm not interested in giving relief

18 that would release anybody, nor in issuing a mandatory

19 injunction. So it's got to be a negative injunction, and now

20 how to phrase it.

21

MR. HODGSON: Certainly, your Honor.

22

So as you said, this would be an order that would

23 direct ICE to follow the law, which, as this Court has

24 interpreted and as no one here disputes, requires ICE to make

25 an individualized determination based on the factors laid out

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1 in its own implementing regulations, which are --

2

THE COURT: The way you word it is a mandatory

3 injunction, "follow the law." "Give an individualized

4 determination." Those are mandatory statements.

5

How can you phrase it in a classic injunctive way?

6 Don't do this, don't do that.

7

MR. HODGSON: Then it would be to set aside the

8 no-release policy, and to stop its practice of failing to give

9 individualized assessments based on flight and danger as

10 required by the law. So to set aside the no-release policy as

11 it existed since mid 2017, and to stop the illegal practice of

12 failing to give people the individualized assessments required

13 by law pursuant to its own law and regulation.

14

THE COURT: Mr. Waterman.

15

MR. WATERMAN: Yes.

16

This is Mr. Waterman, for the government.

17

Seriously, I'd have to see what the language

18 Mr. Hodgson is proposing and figure out whether that still

19 falls within a mandatory injunction or not.

20

But I tend to agree that to the extent the Court is

21 issuing injunctive relief, obviously the general type of relief

22 that's issued in an APA action where a policy or practice is

23 found unlawful would be to set aside that policy or practice.

24 And it kind of kicks back to the agency to determine whether

25 it's got a different policy or practice with justifications for

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1 that.

2

THE COURT: What would be the scope of an injunction?

3 Would it be nationwide? Would it be focused only on the field

4 office? Would it be focused only on the two individual

5 plaintiffs?

6

MR. HODGSON: Your Honor, this is Mr. Hodgson.

7

It would apply to our entire putative class; so it

8 would be limited to those processed through the New York field

9 office and held pursuant to Section 1226(a).

10

THE COURT: What about the future?

11

MR. HODGSON: It would include future class members as

12 described in the class, the proposed class.

13

THE COURT: In the field office.

14

MR. HODGSON: Yes. This is all -- all of our data and

15 all of our case is about the practices as the New York field

16 office since mid 2017.

17

THE COURT: How do we define the scope of the New York

18 field office? Is there a geographical definition?

19

MR. HODGSON: Well, it is everyone whose case is

20 processed through the office there. So it defines itself in

21 that way. Everyone who is arrested in a certain area and then

22 processed either in New York City or at one of the same -- the

23 field office's satellite offices, and then detained in the

24 area.

25

THE COURT: Where are the satellite offices?

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1

MR. HODGSON: So I believe this is described in the

2 Joyce declaration. There is an office in Newburgh, where they

3 do some of the initial processing for folks who are arrested

4 outside of the city. And I do believe that ICE does some

5 processing on-site, for example, at the Orange County Jail,

6 before people are detained there.

7

So, again, this is all done under the supervision of

8 the New York field office. Most frequently people are brought

9 to New York City to be processed, but some of these

10 determinations are made at these offices all under the

11 supervision and direction of the New York field office.

12

THE COURT: And Mr. Waterman, let's suppose we figure

13 out the right words, I issue the injunction, and there's no

14 change by ICE. Of course, you would appeal.

15

What about the people in jail, what should happen to

16 them? Let's suppose there are people in jail at the present

17 time who should not be there.

18

MR. WATERMAN: Yes, your Honor.

19

This is Brandon Waterman, for the government.

20

If I could just -- I'll answer that question, but I

21 also wanted to address the scope issue real quick as well.

22

THE COURT: Do the scope first.

23

MR. WATERMAN: Sure.

24

And so I agree with Mr. Hodgson that this is a New

25 York field office-specific issue. And so the entire complaint

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1 challenges a policy out of the New York field office. So the

2 scope would be limited only to the New York field office, which

3 would, I think, just generally encompass any alien that's in

4 the removal proceedings here in New York City at Varick Street,

5 the detained docket. So these are detained aliens under

6 Section 1226(a) out of the New York field office.

7

And one point about scope though I think is important,

8 and I don't know that it was addressed in the plaintiffs'

9 filings. So once an alien receives a bond hearing, the

10 government doesn't view them as properly contained within the

11 scope of this case, because they are not detained as a result

12 of the -- or on a, quote, no-release policy by ICE.

13

THE COURT: Thank you for bringing it up,

14 Mr. Waterman, because I thought about that.

15

So Mr. Velesaca has been given an individualized

16 hearing by an immigration judge. Isn't his recourse an appeal,

17 the Board of Immigration Appeals, Mr. Hodgson?

18

MR. HODGSON: Not on the claim, your Honor, no.

19

THE COURT: Why not?

20

MR. HODGSON: He was entitled to an initial custody

21 determination by ICE that complied with the law. He didn't get

22 it.

23

THE COURT: That's agreed. He didn't get it

24 (inaudible) fixed. He got it later on.

25

MR. HODGSON: To be clear, your Honor, he may have

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1 multiple remedies to pursue regarding the determination of his

2 bond hearing. But anyone who got an initial custody

3 determination by ICE is entitled to have that custody

4 determination redone, in light of this Court's ruling with the

5 no-release policy set aside.

6

THE COURT: I would assume that the initial

7 determination of the immigration officer has some effect on the

8 determination by the immigration judge. And I don't know that

9 that can be held.

10

MR. HODGSON: Your Honor, respectfully, the regulation

11 that creates this process, the initial custody determination

12 process, contemplates that it can be redone by ICE, regardless

13 of the outcome of an immigration judge's bond hearing. And it

14 is a process that, you know, ICE uses its own criteria, it's a

15 separate determination made by ICE based on the evidence before

16 it at that time when it's made.

17

As we've shown in our record, many things happen

18 between the time a person gets their initial custody

19 determination and when they appear before a judge. In fact,

20 the harms of detention often contribute to a person not being

21 able to put forward their case before an immigration judge in a

22 successful manner.

23

To simply have the opportunity to get a fair hearing

24 before ICE on the custody determination is a separate legal

25 matter; it's something that is a statutory violation. And so

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1 the fact that some other remedy down the road could potentially

2 ameliorate some of these harms is irrelevant; and the person

3 has a statutory right to a fair individualized assessment.

4

To the extent that this Court is going to rule that

5 the no-release policy is unlawful, and that it should be set

6 aside, and that people detained by ICE have a right to an

7 individualized assessment in accordance with the law, all of

8 those people who are still detained and sitting in jail because

9 of a faulty process where they were not given the opportunity

10 to have an individualized assessment have the right to that

11 assessment. It doesn't mean they will all get out; it just

12 means they have the right to the fair process. That's what

13 this class is about, and that's what everyone is entitled to.

14

THE COURT: You would not make an exception for those

15 subsequently given an individualized bail hearing by an

16 immigration judge.

17

MR. HODGSON: No, your Honor, that's a separate matter

18 and it's not part of this claim. I think those people can and

19 should pursue those remedies. But the right to an

20 individualized bond hearing is what's at issue here -- or an

21 individualized custody determination is what's at issue here;

22 and everyone in the class is entitled to it who didn't get it.

23

THE COURT: Mr. Waterman.

24

MR. WATERMAN: Yes, your Honor, this is Mr. Waterman.

25

I completely disagree with Mr. Hodgson. It really

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1 doesn't make a lot of sense to say that once an individual

2 appears before an immigration judge and presents a packet,

3 which oftentimes will include letters from the community,

4 letters from employers, family members, clergy, employment

5 records, and the like, presenting a packet for release, an

6 immigration judge on a record with argument from counsel and

7 the presentation of evidence makes a determination on custody

8 that for, I guess, lack of a better way to phrase it is because

9 ICE was required to, by statute, evaluate a determination in a

10 certain way, regardless what the immigration judge finds, it

11 needs to go back to ICE again.

12

So an immigration judge, like Mr. Velesaca, in his

13 case, could deny bond and find that his DWI record presents

14 concerns where a bond won't be granted, but we should kick it

15 back to ICE to consider again. I don't know what the following

16 recourse would be if ICE were to again, in their discretion,

17 say, We are denying bond, then would this individual then, in

18 Mr. Hodgson's view, go before an IJ for a second time to have a

19 review of that custody determination?

20

THE COURT: I think we have to make an exception for

21 those people given a hearing by an immigration judge. Their

22 recourse is appeal to the Board of Immigration Appeals, and

23 from there to the Court of Appeals. It doesn't seem to me a

24 useful remedy. It requires starting all over again, even after

25 a hearing. It's not a bad hearing; no error has been charged.

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1 And if there were error, it would be an error that had to be

2 brought up on appeal.

3

So I think we would make an exception to those who

4 would have been given an immigration hearing before an

5 immigration judge.

6

Anything else that I need to consider?

7

MR. WATERMAN: I'm sorry, I didn't catch that, your

8 Honor.

9

THE COURT: Are there other issues that I need to

10 consider?

11

MR. WATERMAN: Well, again, this is Brandon Waterman,

12 for the government.

13

I think that covers it with respect to the scope, that

14 it would be limited to the New York field office for aliens

15 subject to 1226(a) detention who have not yet had a bond

16 hearing before an immigration judge. I think we've covered

17 that.

18

THE COURT: And those who are detained in the future.

19

MR. WATERMAN: Right. Based on arrests and custody

20 determinations by the New York field office, right, it would be

21 a -- sort of a replenishing class where it's going forward.

22

THE COURT: Yes.

23

MR. WATERMAN: Yes, I think that would adequately

24 cover the scope issue. And I'm sorry, your Honor, you did have

25 a specific question before I took a step back to the scope.

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1

THE COURT: No, I asked if I've covered all the issues

2 that I need to cover.

3

MR. HODGSON: Your Honor, if this is also directed at

4 me -- this is Robert Hodgson -- I think we would like the

5 opportunity to speak on the Rehabilitation Act claim, partly

6 because these are, again, requirements that are part and parcel

7 of DHS's own internal regulations about how they do these

8 custody determination processes.

9

THE COURT: I'll grant you that.

10

MR. HODGSON: Thank you.

11

I'd like to turn it over to my colleague Niji then.

12

THE COURT: I'll grant you that.

13

But have we now exhausted the issues under the

14 immigration law?

15

MR. HODGSON: Yes, your Honor.

16

THE COURT: Is there any other issue that I need to

17 discuss, apart from the disability act -- apart from the

18 Rehabilitation Act?

19

MR. WATERMAN: Your Honor, this is Brandon Waterman,

20 for the government.

21

I don't think so. But I did, if your Honor would

22 indulge me, have some current information I can provide your

23 Honor about ICE's current custody determinations whenever your

24 Honor believes it's the appropriate time.

25

THE COURT: I think, Mr. Waterman, that I'm going to

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1 rule extemporaneously as soon as this hearing concludes and

2 follow up with a written decision. But my ruling

3 extemporaneously will be the final order.

4

I think both sides will probably want to resort to the

5 Court of Appeals; and the sooner I can let you do that, the

6 better. And at this time of working remotely, there would be

7 too much of a possibility of delay to wait for a written

8 opinion. And so I do not wish the record to be supplemented.

9 The record stands where it is. It's closed.

10

I'll now hear Ms. Jain on the Rehabilitation Act.

11

MS. JAIN: Thank you, your Honor.

12

Niji Jain, from The Bronx Defenders.

13

Your Honor, we understand why you may have understood

14 our argument to be seeking special treatment; but instead what

15 we are actually asking for is consideration of

16 disability-related needs in the individualized assessments that

17 we believe are required, as the regulations themselves require.

18 And if it may please the Court, I'd like to explain our

19 thinking on that in just a couple of brief sentences.

20

THE COURT: Go ahead.

21

MS. JAIN: Your Honor, it is well-established that the

22 Rehabilitation Act requires individualized inquiries that

23 consider someone's disability when determining appropriate

24 modifications. So, for example, in Wright v. New York State

25 Department of Corrections (2d Cir. 2016), the Court of Appeals

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1 held that prisons must engage in an individualized inquiry

2 before placing a disabled person in solitary confinement.

3

Similarly, in Thompson v. Davis (9th Cir. 2002), the

4 Ninth Circuit held that the disability statute applied to the

5 substantive decisions of a parole release; meaning that a

6 parole decision must take disability into account.

7

And similarly here, what we're asking for is for ICE

8 to take disability-related needs into account when making the

9 individualized custody determinations. And phrased as a

10 negative injunction, we are seeking to prohibit the no-release

11 policy, as Mr. Hodgson described. And our contention is that

12 would include the relief we're seeking here, because --

13

THE COURT: May I ask this question, Ms. Jain: Let's

14 suppose we have a person with a disability, and he presents a

15 danger to the community or he presents a flight risk. Are you

16 suggesting that there should be favored treatment to the

17 disabled person and give him bail where otherwise he would not

18 be entitled to bail?

19

MS. JAIN: Your Honor, I think, in light of the

20 numbers that the government has put forward that you all were

21 discussing earlier, that the government suggests that any type

22 of contact with the criminal system would necessarily suggest

23 some sort of flight or danger; that there are people who would

24 be on the cusp who -- where the disability and the fact that

25 their disability would not be appropriately handled, they would

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1 not be getting the necessary services, they would not have the

2 necessary support in detention, where consideration of their

3 disability-related needs may be an appropriate factor to

4 consider when determining whether to give someone a bond or

5 release or some alternative to detention.

6

THE COURT: The law provides two considerations: Risk

7 of flight, risk of danger to the community. Let's suppose that

8 a disabled person presents a risk of either one. Does that

9 disabled person get entitled to favored treatment because of

10 this disability?

11

MS. JAIN: Your Honor, respectfully, I think the way

12 that the determinations are made, flight and safety are not

13 binary; rather, there's a sliding scale, so some people are

14 eligible for -- or are deemed appropriate for relief and

15 recognizance, others on a low bond, others on a higher bond.

16 And so there is space there for disability to also be

17 considered as a factor.

18

THE COURT: That would give the disabled person a

19 favored spot. The law provides that there should not be an

20 exclusion for benefit or a denial of benefit or a

21 discrimination against an otherwise qualified individual

22 because of a disability. So we can't say that -- so we can't

23 say that the person denied bail who -- sorry. We can't say

24 that a disabled person is denied bail if he otherwise should

25 not be given bail. He's not discriminated against.

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1

MS. JAIN: Your Honor, the Rehabilitation Act and

2 DHS's own implementing regulations require -- they say that DHS

3 shall administer programs in the most integrated setting

4 appropriate to the needs of a qualified individual with a

5 disability. And so the regulations themselves anticipate that

6 someone's disability-related needs would be part of the

7 calculus.

8

THE COURT: Okay.

9

Mr. Waterman?

10

MR. WATERMAN: Yes, your Honor. And I don't think we

11 need to belabor this much.

12

I think your Honor correctly stated the standard. And

13 I don't think that the plaintiffs here have demonstrated any

14 discrimination or entitlement to any certain benefit that they

15 are being denied here.

16

And also, in the Joyce declaration at paragraph 12,

17 Mr. Joyce had noted that an alien's disability may impact the

18 custody determination; but ultimately the question comes down

19 to the issue of flight risk and danger to the community.

20

And as plaintiffs' counsel has noted, it may be that

21 ICE determined that somebody with a disability may pose a

22 lesser danger to the community, but ultimately ICE's

23 determination would turn on the determination of whether the

24 alien poses the flight risk or a danger.

25

I don't think ICE has ever taken a position that

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35 K3UVVELC

1 disability is a completely irrelevant factor for them to

2 consider, but it's built into a discretionary decision. So I

3 don't think that the Rehab Act claim here is on solid footing;

4 but there is also, I don't think, any reason to impose any

5 restrictions on what ICE considers and what they don't

6 consider.

7

THE COURT: Anything else?

8

It's now 3:30 --

9

MR. HODGSON: Your Honor?

10

THE COURT: Yes.

11

MR. HODGSON: Sorry. This is Mr. Hodgson.

12

I just wanted to make the request explicit, because I

13 know we were discussing the remedy earlier. And your Honor did

14 allude to the fact that, of course, there would need to be some

15 followup from the government regarding its compliance with any

16 order that comes out of that.

17

I do want to articulate the petitioners' position that

18 such followup should be prompt; it should include a description

19 of the activities that the actions that have been taken to set

20 aside the no-release policy, any sort of directive, for

21 example, that ICE has given, any instructions it's given to the

22 officers making determinations; and, of course, follow up with

23 a class list identifying people to whom the injunction will

24 have applied and the outcome of their determinations or

25 redeterminations if they haven't yet had a bond hearing.

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1

So I did want to make that ask explicit, that it be

2 incorporated into the initial order, if such an order is, in

3 fact, put in place. Thank you.

4

THE COURT: Well, supposing, Mr. Hodgson, I were to

5 give a preliminary injunction. You would then be continuing

6 the case. Let's say I give the injunction and Mr. Waterman

7 appeals. The case would go forward, would it not? There would

8 be discovery and so on.

9

MR. HODGSON: Yes, your Honor.

10

But certainly because of the expedited nature of this

11 hearing, and the expedited nature of any relief, and the fact

12 that, you know, a matter of days or weeks will count to our

13 clients, the normal schedule of responses to discovery requests

14 would not necessarily allow us to determine the actions they've

15 taken in the coming days and weeks; whereas this Court

16 certainly has jurisdiction to issue an order that ensures

17 compliance and checks in with the government in a briefer time

18 period to describe, again, the actions it has taken in

19 response, to promptly provide a class list of putative class

20 members so that we can identify them and reach out to them, if

21 necessary, and an accounting of what redeterminations have been

22 made and when.

23

This is certainly something we would seek in

24 discovery. But the expedited nature of this proceeding and the

25 relief that's contemplated would certainly indicate that it

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1 should be turned over as quickly as possible because it will

2 affect the putative class members who are sitting in prison,

3 you know, for example, waiting for a bond hearing that's not

4 going to come for a month.

5

Thank you, your Honor.

6

THE COURT: Mr. Hodgson, don't give up so quickly.

7

Anything I do has to be discrete. I do not want to

8 set myself up as an administrator; I do not want to immerse

9 myself in the administrative process; and nor do I want to

10 send -- to appoint a special master to do that which you would

11 want me to do.

12

So the problem with the remedy you're asking is that

13 it would create the very dangers that I don't want to

14 encounter. If there is an enforcement mechanism or a reporting

15 mechanism, it must be simple and definite and not lead to

16 additional proceedings, except if there is a clear violation.

17

So what would you suggest?

18

MR. HODGSON: Yes, your Honor.

19

I think a very simple and straightforward articulation

20 would be that the government provides an update within a

21 certain time period regarding the actions it has taken, just

22 describing the actions it has taken to come into compliance

23 with the order; and that the government provides a class list.

24 This is something it can do with the snap of its fingers. It

25 knows who these people are. It's simply providing that

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1 information and making sure that that covers the

2 relevant characteristics.

3

THE COURT: Mr. Waterman?

4

MR. WATERMAN: Yes, this is Mr. Waterman.

5

I would oppose what Mr. Hodgson suggests is something

6 as easy as, quote, a snap of the fingers.

7

ICE is under a tremendous amount of -- has a lot of

8 issues that they are currently dealing with. In the past 11

9 days alone I understand that ICE has redetermined custody for

10 over 100 individuals, and has released roughly that number.

11 And they continue to evaluate a number of individuals for

12 release, in light of COVID-19, including three individuals that

13 plaintiffs' counsel has asked me about.

14

So they are certainly extremely busy. And these

15 things that Mr. Hodgson is suggesting takes a snap of the

16 fingers, I respectfully disagree and don't think it's that

17 simple and easy for ICE to accomplish.

18

I think a simple order stating that the government

19 provide an update within however many days about the steps it

20 has taken, I think, would suffice. At this point it's not even

21 a certified class; the government hasn't had an opportunity to

22 oppose the motion for class certification. So a request to ask

23 the government to compile a list, I think, would be unduly

24 burdensome at this stage.

25

THE COURT: I don't know about that.

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1

I was thinking of these two actions: A list of

2 persons detained, a list of those persons in the subclass who

3 have been given -- who have appeared before immigration judges,

4 and a report on the actions taken in response to the Court's

5 order, those three things. A list of persons detained. We'd

6 define who may be possibly subject to this injunction and who

7 may be part of the class; a list of those from that class who

8 already have been given a hearing by the IJ, would answer the

9 exception that we spoke about earlier; and a report on the

10 actions taken by the agency in response to the Court order I do

11 not think would be onerous.

12

MR. WATERMAN: Your Honor, if I may, this is Brandon

13 Waterman now, for the government.

14

What time frame would you be looking at for that

15 information?

16

THE COURT: I don't know. 28, 30 days?

17

MR. WATERMAN: I would ask for at least 30, your

18 Honor, given -- again, ICE is completely overwhelmed, I think,

19 with release requests and redetermining custody as it is. It's

20 been very difficult on such short notice in this case alone to

21 prepare the government's briefing and a declaration. We didn't

22 have an opportunity to provide a record or build a record with

23 data or numbers because of the strain on the resources. I

24 would certainly ask for at least 30 days to be able to provide

25 that.

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1

And also if we can clarify the list of detained

2 individuals would be 1226(a) aliens only, not all detained

3 aliens out of the New York field office.

4

THE COURT: Those -- what are 1226 aliens again, those

5 who what?

6

MR. WATERMAN: Those that are subject to detention

7 under 8, U.S.C., 1226(a). That would not include 1226(c)

8 aliens who are subject to mandatory detention, those are not

9 putative class members. It would not include aliens subject to

10 detention under 1225(b). Those are not putative class members.

11 It also would not include aliens subject to detention under

12 1231, which are also not putative class members. The only

13 aliens that are at issue here are 1226(a) aliens.

14

THE COURT: Mr. Hodgson.

15

MR. HODGSON: Yes. We only want a list that would

16 identify our class members, which are people detained under

17 1226(a).

18

THE COURT: Thirty days okay?

19

MR. HODGSON: Your Honor, we do think that this is

20 something that requires prompt followup. I think 30 days is a

21 long time. If, in fact, the government is going to take 30

22 days, perhaps the idea is that it provides follow-up monthly

23 reports. Obviously there are future class members who will

24 come into play in future months. So if the idea is it's going

25 to give a regular report every month, that would be one thing.

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41 K3UVVELC

1 But particularly with the threat of COVID-19 --

2

THE COURT: I don't envision receiving the reports at

3 once.

4

MR. HODGSON: Well, then, your Honor, we would say

5 that 30 days -- particularly in light of the threat of COVID-19

6 to so many of our class members who would get a redetermination

7 under this order, 30 days is excessive, and that something

8 shorter is more appropriate.

9

THE COURT: What do you suggest?

10

MR. HODGSON: I would suggest within a week. Again,

11 these are determinations that they have -- they make the

12 determination in any case; this is a matter of sorting out

13 everyone who they have already identified as being held

14 pursuant to 1226(a).

15

MR. WATERMAN: Your Honor, again, this is Brandon

16 Waterman, for the government.

17

I don't think a week is feasible or reasonable.

18 Again, I really do stress under these circumstances, ICE is

19 really overwhelmed with the work it is doing to redetermine

20 custody. And as I noted, in the past 11 days alone it has

21 redetermined custody for roughly 100 individuals and has

22 released them.

23

THE COURT: Mr. Waterman --

24

MR. WATERMAN: -- out of custody.

25

Yes, your Honor.

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1

THE COURT: How about April 15?

2

MR. WATERMAN: About three and-a-half weeks from

3 today, I believe, your Honor? We could certainly live with

4 that. And if --

5

THE COURT: Two and-a-half weeks.

6

MR. WATERMAN: Two and-a-half?

7

THE COURT: Two and-a-half.

8

MR. WATERMAN: It is very tight, your Honor. If I may

9 just say we can certainly set that for a date. But if

10 circumstances seem to be --

11

THE COURT: It could be April 17th. I don't want to

12 have it (inaudible). April 17th.

13

MR. WATERMAN: Okay. Thank you, your Honor.

14

THE COURT: That will be the date.

15

And this is a process of people being removed, people

16 coming, people detained, people getting hearings, and so on.

17 So we need a record date, as of a certain -- reporting will

18 come on the 17th as of the condition of a particular date.

19 April 10, is that feasible, Mr. Waterman?

20

MR. WATERMAN: I believe, yes, your Honor.

21

My understanding, again, I think, as we noted earlier,

22 I believe arrests are down. I think only in the past week

23 there are a handful, less than five.

24

THE COURT: That will make it easier.

25

MR. WATERMAN: I think going forward, yes. But to

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43 K3UVVELC

1 capture whoever might be in the class for the past weeks or

2 months or so, that, I think, is the harder part.

3

But, yes, I think setting the 10th as the date would

4 be fine.

5

THE COURT: The record date.

6

MR. WATERMAN: The record date, yes.

7

THE COURT: Reporting on the 17th.

8

Is a bond required?

9

MR. WATERMAN: I'm sorry --

10

THE COURT: Is a bond -- the plaintiffs have proposed

11 a bond.

12

MR. WATERMAN: This is Brandon Waterman.

13

I guess I'm uncertain with the question now.

14

THE COURT: I don't have Rule 65 in front of me. In a

15 civil case, if I grant an injunction, a bond is required to be

16 posted. I'm not sure in this situation against the government

17 if a bond is required. Does anybody know?

18

Mr. Dunn, you would probably know. Are you on?

19

MR. DUNN: I am, your Honor.

20

THE COURT: Would a bond be required?

21

MR. DUNN: Your Honor, I can't tell you in all

22 circumstances. What I can tell you is we've got many

23 preliminary injunctions against the government and never once

24 posted a bond.

25

THE COURT: That's a good enough answer.

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44 K3UVVELC

1

Okay. No bond.

2

What I'd like to have -- I don't know if this is

3 feasible. It's now almost a quarter of four. I wonder if we

4 could break this call now, and you could call back at 4

5 o'clock -- make it 4:15, call back at 4:15, and I'll give you

6 my decision at that time. Is that feasible?

7

MR. HODGSON: This is Robert Hodgson.

8

Thank you, your Honor. Yes, it is.

9

THE COURT: Mr. Waterman.

10

MR. WATERMAN: This is Mr. Waterman.

11

Yes, your Honor, that is acceptable.

12

THE COURT: Okay.

13

And Martha, could that be okay with you?

14

THE COURT REPORTER: Yes, Judge, that's fine.

15

THE COURT: All right. So everyone will call in

16 again.

17

Adam, do we use the same numbers?

18

THE LAW CLERK: Yes, the same numbers, Judge.

19

THE COURT: The number you called in before will be

20 the one you'll be calling in now.

21

Okay. So a quarter past four please call in and I'll

22 deliver my decision at that time.

23

THE DEPUTY CLERK: Judge, are you sure you don't want

24 to make it 4:30?

25

THE COURT: Okay. You can make it 4:30.

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1

You know me very well.

2

THE DEPUTY CLERK: Yes.

3

THE COURT: 4:30, folks. Okay.

4

(Recess)

5

THE COURT: Good afternoon, everyone. This is Judge

6 Hellerstein.

7

Is Mr. Hodgson on the call?

8

MR. HODGSON: Yes. Good afternoon, your Honor.

9

THE COURT: Is Ms. Jain on the call?

10

MS. JAIN: Yes, your Honor.

11

THE COURT: Is Mr. Waterman on the call?

12

MR. WATERMAN: Yes, your Honor.

13

THE COURT: Is Ms. Martin on the call?

14

THE COURT REPORTER: Yes, your Honor.

15

THE COURT: All right. I'm going to proceed now.

16

I have before me a motion by the plaintiffs for a

17 preliminary injunction, the details of which have been

18 expressed in the conference that we just had.

19

Basically, on behalf of a class, plaintiffs Velesaca

20 and Uzategui, and a class of those arrested by immigration

21 officials by the New York City field office, a subclass of

22 detainees with disabilities, seek relief from this Court

23 enjoining defendant Thomas R. Decker, in his official capacity

24 as New York field office director of U.S. Immigration and

25 Customs Enforcement, from changing his policies pursuant to

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1 statute and regulations that have become more stringent after

2 2017, and denied applications by persons arrested for release

3 to the community on bail or recognizance. We had argument on

4 this issue, and I will now make my findings.

5

The motion is granted to the extent I indicate in my

6 remarks. This extemporaneous decision is the decision of the

7 Court. It will be followed by a very short summary order

8 issued tomorrow -- today, if possible, but more likely

9 tomorrow, and a longer decision explaining my reasoning as

10 quickly as we can. But the extemporaneous order I issue now,

11 followed by the summary order tomorrow, will be the order --

12 the final order of the Court with regards to the motion for

13 preliminary injunction from which an appeal may be taken.

14

First, the class, which has not yet been certified,

15 but which, in the end, I will ask for a schedule for a motion

16 for certification, is on behalf of all individuals eligible to

17 be considered for bond or release on recognizance under 8,

18 U.S.C., Section 1226(a)(1) and (2), by the New York field

19 office of immigration -- of U.S. Immigration and Customs

20 Enforcement and, with respect to those individuals, all who

21 have been or will be detained without bond. A subclass of

22 those people who also have a disability as defined by the

23 Rehabilitation Act, 8 U.S.C. -- I'm sorry, I'll give the

24 citation later -- also applies for determination and evaluation

25 of a disability.

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1

The governing statute provides as follows: On a

2 warrant issued by the attorney general, an alien may be

3 arrested and detained pending a decision on whether the alien

4 is to be removed from the United States. And it goes on to

5 say: Except as provided in subsection C, if pending such

6 decision, the attorney general, one, may continue to detain the

7 arrested alien; and two, may release the alien on, A, bond of

8 at least $1,500, with security approved by and containing

9 conditions prescribed by the attorney general; or, B,

10 conditional parole.

11

The language "may release" has been interpreted by the

12 United States Supreme Court to require the attorney general to

13 make some level of individualized determination. The case is

14 INS v. The National Center for Immigrants Rights Incorporated,

15 502 U.S. 183, 194 (1991).

16

The applicable regulation there as follows, 8 CFR,

17 Section 1236.1, provides that any officer authorized to issue a

18 warrant of arrest may, in the office's discretion, release an

19 alien not described -- that's subsection C -- provided -- I

20 leave out something else -- provided that the alien must

21 demonstrate to the satisfaction of the officer that such

22 release would not pose a danger to property or persons, and

23 that the alien is likely to appear for any future proceeding.

24 That determination, under 8 CFR, Section 1236.1(c)(8), must be

25 made within 48 hours of the arrest, except in the event of an

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1 emergency or other extraordinary circumstance. In that case,

2 the determination is to be made within an additional reasonable

3 period of time whether the alien will be continued in custody

4 or released on bond or recognizance, and whether a notice to

5 appear and warrant of arrest will be issued.

6

The regulations go on to provide a right to appeal to

7 the immigration judge and, beyond that, to the Board of

8 Immigration Appeals.

9

Another principle that is important here is that

10 called the Accardi doctrine. Under the Accardi doctrine, it's

11 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 90

12 (1954), that there is a requirement of due process and the

13 basic principle of administrative law that rules promulgated by

14 a federal agency regulating the rights and interests of others

15 are controlling upon the agency. That doctrine is premised on

16 fundamental notions of fair play underlying the concept of due

17 process.

18

Under the Administrative Procedure Act, agencies may

19 not depart from a prior policy, whether expressed or implied,

20 nor they may disregard the rules on the books. Encino

21 Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016), held:

22 Agencies are free to change their existing policies, as long as

23 they provide a reasoned explanation for the change. And that

24 requirement of an explanation is not limited to formal rules or

25 official policies, and applies equally to practices implied

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49 K3UVVELC

1 from agency conduct.

2

Now, we have discussed and it has been shown,

3 particularly under the Hausman declaration and the various

4 tabulations under that declaration, that there has been a

5 marked change in practice in policy, so that the percentage of

6 those released on bond or on recognizance prior to June 6,

7 2017, as compared to those released on bond or recognizance

8 after June 6, 2017, is markedly different, so much so that a

9 change of policy is dramatically shown.

10

The number of people who have been denied release,

11 whether on bond or recognizance, has become so infinitesimally

12 small as compared to what had been in existence, as to show

13 such a fundamental alteration of the nature of the program.

14 And whether it is done by this risk classification assessment,

15 a various algorithm, or by actions of arresting officers, or by

16 their supervisor, really does not make a difference. There has

17 been a change, a marked change, and there has been no recent

18 explanation to support that.

19

What the government has said is that most of the

20 arrests now follow criminal arrests. But the fact of a

21 criminal arrest did not indicate whether a person is a risk of

22 flight or a danger to the community. And that condition

23 existed before June 6, 2017 or after.

24

The government has also argued that there have been a

25 large number of people who have failed to show up when they've

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50 K3UVVELC

1 been asked -- summoned to come to court or noticed to come to

2 court. But that also does not apply to the individual case.

3 As the Supreme Court held under the section of 1262(a) and the

4 governing regulations, there must be an individualized

5 determination, and that has not been given.

6

So the likelihood of success on the part of the

7 plaintiffs has been shown.

8

Furthermore, it's clear that there has been

9 irreparable damage to the plaintiffs. It is patent that the

10 condition of living in a community, holding a job, being able

11 to come to a home for dinner, being able to rest after a day's

12 work, being able to seek medical attention, is so far better

13 when free than in jail, as to require no argument.

14

This irreparable damage applicable to all persons who

15 have been denied their right to an individualized bond

16 determination within 48 hours after arrest is so much greater

17 than the possible risk to any kind of disruption to their

18 obligation of ICE to do their work for the government and for

19 all of us.

20

The injunction that's requested is an injunction to

21 comply with law. It is not an injunction to change any action

22 pursuant to law. And so Section 242 of the INA, Immigration

23 and Nationality Act, 8, U.S.C., Section 1252(f) is not

24 applicable. That section provides that regardless of the

25 nature of the action or claim or of the identity of the party

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1 or parties bringing the action, no court, other than the

2 Supreme Court, shall have jurisdiction or authority to enjoin

3 or restrain the operation of 8, U.S.C., Sections 1221 to 1231,

4 other than with respect to the application of such provisions

5 to an individual alien against whom proceedings under such part

6 have been initiated.

7

This is not an application to enjoin or restrain the

8 operation of law. This is an application to enforce compliance

9 with law and to strain departures for law. And I believe that

10 the government has conceded in argument that insofar as we are

11 dealing with an injunction against noncompliance with law, the

12 limitation of Section 242 of the Immigration and Nationality

13 Act does not apply.

14

Plaintiffs have further argued that under the

15 Rehabilitation Act, there is an obligation to consider

16 disability as part of the (inaudible) the individualized

17 determination after arrest.

18

The law requires consideration of the risk of flight

19 and the risk to public safety. It is not part of the policy of

20 the Rehabilitation Act to give favored treatment to those

21 disabled. If a disabled person presents a risk of flight or a

22 risk of harm committed to the community, that person, just as

23 any other person, is subject to detention.

24

There has been no citation of any argument that there

25 has been discrimination against any disabled person and, hence,

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52 K3UVVELC

1 I find that the Rehabilitation Act is not applicable.

2

One moment.

3

(Pause)

4

THE COURT: And as to balancing the equities, the

5 equity in favor of individual freedom, where freedom should be

6 had, pending further activities in immigration court and the

7 equities of the government, favors the individual because the

8 relief that will be given, as will be seen, will not interfere

9 with any government activity.

10

Now, I'm ready to announce what the injunction will

11 be, and it's as follows:

12

Enjoining defendant Thomas R. Decker, in his official

13 capacity as New York field office director for U.S. Immigration

14 and Customs Enforcement -- let me repeat that.

15

Enjoining defendant Thomas R. Decker, in his official

16 capacity as New York field office director for U.S. Immigration

17 and Customs Enforcement, and all successors appointed or

18 acting, from using or applying practices or policies relating

19 to the discretion by arresting officers to release to the

20 community on recognizance or pursuant to bond, pursuant to

21 Section 236 of the Immigration and Nationality Act, 8, U.S.C.,

22 Section 1226(a), and applicable regulations, to any person now

23 or hereafter arrested by said defendant or officers or agents

24 directly or indirectly supervised by said defendant in any

25 manner, more stringent or onerous than those used or applied

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1 prior to June 6, 2017.

2

This order shall not apply to any person so arrested

3 who has had his bond or recognizance application heard by an

4 immigration judge.

5

Defendants shall file a report on April 17, 2020,

6 identifying as of April 10, 2020, all persons thus arrested by

7 or under the authority of the New York field office and of such

8 persons, all persons who have had their bond or recognizance

9 applications heard by an immigration judge.

10

These are the findings and conclusions of the Court

11 and the injunction that I order issued effective upon the

12 filing of the summary order that I expect will be done

13 tomorrow.

14

Mr. Hodgson, have I touched on everything that needs

15 to be said?

16

MR. HODGSON: Yes, your Honor.

17

THE COURT: Mr. Waterman?

18

MR. WATERMAN: I believe so, your Honor.

19

THE COURT: This proceeding is therefore closed.

20

I thank you all for expert arguments.

21

And I understand, Ms. Jain, you are a student?

22

MS. JAIN: No, your Honor.

23

THE COURT: Well, you are a remarkable student. And I

24 wish you great success and fulfillment in the practice of law.

25

This is closed. Thank you all very much. (Adjourned)

SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

 
 Velesaca v. Decker, Slip Copy (2020) 2020 WL 2114984
2020 WL 2114984 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jose L. VELESACA and Abraham Carlo Uzategui Navarro, on his own behalf and behalf of others
similarly situated, Petitioners-Plaintiffs, v.
Thomas R. DECKER, in his official capacity as New York Field Office Director for U.S.
Immigration and Customs Enforcement; Matthew Albence, in his official capacity as the Acting Director for U.S. Immigration and Customs Enforcement; United States Immigration and
Customs Enforcement; Chad Wolf, in his official capacity as Acting Secretary of the U.S.
Department of Homeland Security; United States Department of Homeland Security; Carl E.
Dubois, in his official capacity as the Sheriff of Orange County, Respondents-Defendants.
20 Civ. 1803 (AKH) |
Signed 05/04/2020
Attorneys and Law Firms
Christopher T. Dunn, Megan Sallomi, Robert Andrew Hodgson, Amy Belsher, New York Civil Liberties Union, New York, NY, Jennifer Rolnick Borchetta, Niji Jain, The Bronx Defenders, Bronx, NY, for Petitioner-Plaintiff Plaintiff Jose L. Velesaca.
Robert Andrew Hodgson, New York Civil Liberties Union, New York, NY, for Petitioner-Plaintiff Abraham Carlo Uzategui Navarro.
Brandon Matthew Waterman, United States Attorney’s Office, New York, NY, for Respondents-Defendants.
OPINION & ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
ALVIN K. HELLERSTEIN, U.S.D.J.:
*1 Plaintiffs allege that, since the middle of 2017, the

New York Field Office of the United States Immigration and Customs Enforcement (“ICE”), has adopted and implemented an unannounced policy (the “No-Release Policy”) of detaining without bond virtually every alien it arrests, even when an arrestee is neither a flight risk nor a danger to the community.1 Plaintiffs bring this action on behalf of a putative class of persons “eligible to be considered for bond or release on recognizance under 8 U.S.C. § 1226(a)(1)-(2) by ICE’s New York Field Office who have been or will be detained without bond.”2 Stated generally, Plaintiffs contend that the “No-Release Policy” precludes ICE officers from conducting individualized custody determinations, and therefore violates the Immigration and Nationality Act (“INA”) and regulations implemented thereunder, the Due Process Clause of the Constitution, the Administrative Procedure Act, and the Rehabilitation Act. Defendants, for their part, principally deny that the No-Release Policy, such as it is described by Plaintiffs, exists.
Now before the Court is Plaintiffs’ motion for a preliminary injunction, seeking, inter alia, that the Court set aside the No-Release Policy and return ICE to its prior practice of conducting individualized custody determinations. Given the nature of the allegations, and the danger to detainees posed by the COVID-19 pandemic, this motion was briefed and heard on an expedited timeline. The operative Complaint was filed on March 16, 2020 and Plaintiffs’ motion for a preliminary injunction was filed that same day. Defendants filed their opposition brief on March 24, and Plaintiffs filed a reply on March 26. On March 31, oral argument was held on the motion telephonically, at which time I extemporaneously delivered my ruling granting Plaintiffs’ motion for injunctive relief. What follows is a formal opinion explaining more fully the Court’s reasoning for its oral ruling granting Plaintiffs’ motion.
Background
In this section, I summarize the core allegations made in the Complaint, the evidentiary supplements added by Plaintiffs in their motion for a preliminary injunction papers, the key facts alleged in Defendants’ opposition papers, and the case’s procedural history.

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A. The Complaint
1. The No-Release Policy *2 The Complaint alleges that, since in or around the middle of 2017, federal immigration officials in New York City “adopt[ed] what is in effect a blanket policy of denying release and bond across the board” to individuals arrested by ICE authorities. Comp., ECF No. 31, at ¶ 1. Plaintiffs refer to this policy as the “No-Release Policy.” See id.
According to Plaintiffs, Defendants’ adoption of the No-Release Policy roughly coincided with other significant changes to ICE’s custody-determination protocol. In 2013, for example, ICE began to use a “risk-assessment tool” to assist its officers in making initial custody determinations. Id. at ¶ 18. As initially configured, the tool could recommend any one of four outcomes: (1) release on recognizance; (2) release on bond; (3) defer the custody decision to an ICE supervisor; or (4) detain without bond. See id. In 2015, the Complaint goes on, ICE started to “alter its custody determinations process ..., modifying [the tool] so that it could no longer recommend individuals be given the opportunity for release on bond.” Id. at ¶ 20. In mid-2017, ICE “removed the tool’s ability to recommend release on recognizance,” leaving the tool able to make “only [ ] one substantive recommendation,” namely, “detention without bond.” Id.
Around the same time ICE made its alleged 2017 modifications to the risk-assessment tool, the Complaint claims that ICE’s New York Field Office “doubled down on detention and implemented a blanket policy of denying bond or release without an individualized determination of whether detention was necessary based on flight or safety risks.” Id. at ¶ 21. The Complaint urges that the fact of the adoption of the Policy is evident in a simple before-and-after comparison of detentions: In 2013 and 2014, nearly half of all aliens arrested by ICE officials in New York City and deemed by the risk-assessment tool to be of little risk of flight or of endangering the community were released on bond or recognizance; between mid-2017 and September 2019, around 2% of these low-risk individuals were so released. See id. at ¶ 23.
The effects of the No-Release Policy have, according to the Complaint, been exacerbated by two other contextual developments: First, President Trump’s Administration’s shift toward “arresting people with no criminal history and who have resided in the United States for years,” id. at ¶ 24; and second, the fact that the Trump Administration has “vastly expanded its enforcement actions,” id. at ¶ 25. Due to the “convergence of these three separate, but related, policy changes, the New York

Field Office is now arresting record levels of people and ordering them detained without bond, even though an increasing number of them present no danger to the community or risk of flight.” Id. at ¶ 26.
2. The Effects of the No-Release Policy Those denied release, Plaintiffs continue, must “remain unnecessarily incarcerated in local jails for weeks or even months before they have a meaningful opportunity to seek release in a hearing before an Immigration Judge,” or “IJ.” Id. at ¶ 3. For many of these detainees, their initial IJ appearance “does not provide a meaningful opportunity to seek bond,” as many cannot afford attorneys or meet with a City-sponsored attorney prior to their first hearings, limiting the ability to prepare a bond application until later on. See id. at ¶¶ 29-36. Plaintiffs further allege that once a substantive IJ hearing on bond is held, “approximately 40% of people detained by ICE are granted release on bond,” presumably indicating that many who should be eligible for release on bond are denied initial release. Id. at ¶ 3.
*3 The Complaint notes that during the time between detention and the first appearance before an IJ, detainees are separated from their families, friends, communities, and risk losing their children, jobs, and homes. See id. This imposes a variety of harms: (1) the intrinsic harm of separating families, id. at ¶ 38; (2) the threat to those who need medical care, whether physical or mental, but receive inadequate treatment in ICE facilities and/or have one or many preexisting symptoms worsened by detention, id. at ¶¶ 39-45; (3) the limits detention tends to place on the ability to prepare a bond application, e.g., detention may worsen mental health symptoms that hamper recollection of the traumatic events necessary to presenting an application for bond or withholding of removal, id. at ¶¶ 46-47; and (4) the economic harm to families that are deprived of a primary earner, id. at ¶ 48.
3. The Named Plaintiffs Named Plaintiffs Jose Velesaca and Abraham Uzategui were arrested by ICE, denied release pursuant to 8 U.S.C. § 1226(a) by ICE’s New York Field Office, and are currently detained without bond. See id. at ¶¶ 6-7. As to them, the Complaint alleges the following.
Uzategui, a native of Peru, lives in New York with his wife and daughters. See id. at ¶ 49. He was arrested by

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ICE on February 18, 2020 and ordered detained without bond; he appeared before an IJ on March 3, 2020, and was given until April 9, 2020, to consult with an attorney to prepare a bond application. See id. at ¶ 50. Uzategui injured his neck, shoulder, and arm, while working as a delivery person in 2018, but, Plaintiffs allege, he has not received the physical therapy and pain medication he needs in ICE detention. See id. at ¶¶ 51-52.
Velesaca, a native of Ecuador, lives in New York with his family. See id. at ¶ 55. He was arrested by ICE on January 30, 2020 and ordered detained without bond; he appeared before an IJ on February 24, 2020, was given until March 2, 2020 (later adjourned to March 4) to consult with his attorney to prepare a bond application, and on March 4, 2020, the IJ denied his request for bond. See id. at ¶ 56. He has another hearing scheduled for March 23, 2020. See id. Velesaca suffers from Posttraumatic Stress Disorder and Major Depressive Disorder—symptoms include: nervousness, trouble sleeping, and anxiety—from a physical assault he experienced in 2016, which harm has been worsened by his time in detention. See id. at ¶¶ 58-60.

who have been or will be detained without bond.
Id. at ¶ 67.3 As to relief, Plaintiffs seek, among other things, an order requiring Defendants “to conduct an individualized custody determination for Jose Velesaca, Abraham Uzategui, and each member of the proposed class.” Id. at 22.
B. Plaintiffs’ Motion for a Preliminary Injunction Plaintiffs’ moving papers in support of their request for a preliminary injunction largely restate, albeit in more detail, the allegations in the Complaint. However, Plaintiffs draw the Court’s attention to several supplementary submissions—primarily, expert declarations on the risk of COVID-19 and the existence of the No-Release Policy—that warrant some discrete attention and summarization.

4. The Proposed Class and Requested Injunctive Relief As indicated supra, Plaintiffs bring this suit on behalf of a class and subclass of detainees. Specifically, the Complaint defines the proposed “Petitioner Class” as follows:
All individuals eligible to be considered for bond or release on recognizance under 8 U.S.C. § 1226(a)(1)-(2) by ICE’s New York Field Office who have been or will be detained without bond.
Id. at ¶ 66. The Complaint defines a proposed “Rehabilitation Act Subclass” as follows:
All individuals with a disability, as defined by the Rehabilitation Act and its implementing regulations, who are eligible to be considered for bond or release on recognizance under 8 U.S.C. § 1226(a)(1)-(2) by ICE’s New York Field Office and

1. COVID-19 *4 First, in connection with their preliminary injunction motion, Plaintiffs cite several expert declarations tending to support the position that the COVID-19 pandemic, poses particular danger for the putative class and subclass in light of ICE’s subpar healthcare abilities. For instance, Plaintiffs reference a sworn statement from Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (“NYLPI”). See Val Dalen Decl., ECF No. 43. In her declaration, Van Dalen comments generally on the purported shortcomings in ICE’s ability to provide quality care to detainees:
Once in detention, people face many barriers to quality healthcare, including lack of information on how to request medical assistance, institutional refusal of services, misdiagnosis, diagnosis of a less serious condition, lax oversight of their condition and/or treatment, failure to provide mental health discharge planning, and language access barriers. Confinement in immigration detention takes away a person’s own ability to address their illness—something many people we interviewed had been doing successfully for years before detention. ....
NYLPI has documented significant and systemic problems regarding the conditions of confinement at the New York City-area facilities with respect to

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medical treatment and mental health care. The most serious issues include ICE And facility medical staff denying individuals vital medical treatment, such as dialysis and blood transfusions; subjecting sick people in need of surgery to unconscionable delays; altering established treatments regimes; failing to consistently provide needed mental health services and needlessly placing people with mental health problems (and others) in solitary confinement; and ignoring repeated complaints and requests for care from people with serious symptoms, including severe pain.
Id. at ¶¶ 21, 23. On COVID-19, Plaintiffs include a declaration from one Dr. Jaime Meyer, a professor at Yale Medical School with a focus on infectious diseases. See Meyer Decl., ECF No. 42. Meyer explains her view that the risk of COVID-19 is especially urgent for alien detainees:
The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. ...
Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health. ...
Based on my ... experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. ...
The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks.
Id. at ¶¶ 7-8, 26, 40; see id. at ¶¶ 27-35 (explaining that the risk of COVID-19 is more intense in ICE facilities because, among other things, “delays in access to care that already exist in normal circumstances will only become worse during an outbreak”; failure to provide “continuation of treatment” vis-à-vis what detainees received in the community “will result in increased risk of

morbidity and mortality”; failure to provide adequate treatment of underlying conditions will increase the risk of COVID-19 infection and spread; and mental health conditions may be exacerbated by COVID-19 due to “isolation and lack of visitation”).
2. The No-Release Policy *5 Second, Plaintiffs’ preliminary injunction papers adduce the declaration of one David Hausman, a Ph.D. candidate in Political Science at Stanford University. See Hausman Decl., ECF No. 12. Hausman, analyzing data obtained in a separate action brought under the Freedom of Information Act, see New York Civil Liberties Union v. ICE, 18-cv-11557, opines that the No-Release Policy alleged by Plaintiffs is quantifiable via the numbers:
The dataset shows a substantial increase in detention rates for final decisions in the New York Field Office beginning in 2017. In the period from the beginning of the data (January 2013) until June 5, 2017, 2,227 of 13,532 cases (approximately 16%) in fact resulted in a release decision, and an additional 1,719 (approximately 13%) had a bond set. In the period from June 6, 2017 to September 2019, 109 of 6,788 (under 2%) were released, and 4 of 6,901 (under one-tenth of 1%) had a bond set.
Among individuals who posed a low flight risk and low danger (according to the [risk-assessment tool] ), in the period from the beginning of the data until June 5, 2017, 348 of 874 cases (approximately 40%) were ordered released, and an additional 61 (approximately 7%) had a bond set. In the period from June 6, 2017 to September 2019, 9 of 322 (approximately 3%) were released on community supervision and 3 of 322 (approximately 1% had a bond set).
In other words, among individuals who posed a low flight risk and low danger (according to the [risk-assessment tool] ), in the period from the beginning of the data until June 5, 2017, 465 of 874 cases (approximately 53%) resulted in decisions to detain without bond, whereas from June 6, 2017 to the end of the spreadsheet, 310 of 322 (more than 96%) resulted in decisions to detain without bond.
Id. at ¶¶ 10-12. Hausman’s declaration also asserts that the data supports Plaintiffs’ claims as to the 2015 and 2017 modifications to the risk-assessment tool. See id. at ¶ 8 (“[It] appears that the [tool] was modified to remove the tool’s ability to recommend bond be set ( [around] 2015) and its ability to recommend release ( [around]

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2017).”).
C. Defendants’ Opposition to Plaintiffs’ Motion As discussed at length infra, Defendants’ opposition papers make a single core argument upon which most of its other contentions rely: The No-Release Policy does not exist. To substantiate this position, Defendants introduce into the record a declaration from Deputy Field Director in the New York City Field Office of Enforcement and Removal Operations for ICE, William P. Joyce. See Joyce Decl., ECF No. 56. Joyce states that ICE’s New York office
has no policy of categorically denying release to all aliens subject to non-mandatory detention pursuant to INA § 236(a), 8 U.S.C. § 1226(a). Contrary to the allegations of the plaintiffs in this case, [we] do[ ] not have a “No-Release Policy.” The majority of arrests that [we] make[ ] are predicated on some form of encounter by an alien with criminal law enforcement. For example, for fiscal year 2019, 2,108 out of a total of 2,477 arrests made by [us] involved aliens with a conviction or pending charges in a criminal matter. Of the remaining cases, a certain percentage ... will be aliens with unexecuted final removal orders and aliens who may not have a criminal history, as well as aliens who have already been removed at least once and are subject to having their order reinstated. Additionally, there has been a rise in the nationwide trend of aliens who have been released from ICE detention during the pendency of their removal proceedings of failing to appear for their hearings. In light of the foregoing, the result ... has been a denial of discretionary release for most of the aliens arrested after an individualized custody review. [We] ha[ve] been considering and continue[ ] to consider individual circumstances

when

making

custody

determinations but exercise[ ]

favorable discretion in cases where

the alien demonstrates to the

satisfaction of the immigration

officer, at the time of the custody

determination, that he or she is not

a danger to the community or a

flight risk.

*6 Id. at ¶ 13 (emphases added).
Joyce’s declaration also makes several factual assertions as to the named Plaintiffs. On Mr. Velesaca, Joyce states:
[Velesaca] unlawfully entered the United States at an unknown date and at an unknown place. The New York State Police arrested Velesaca on June 19, 2016 and charged him with driving while intoxicated (“DWI”) and aggravated DWI. On November 10, 2016, he pleaded guilty to aggravated DWI and the same day he was sentenced to a conditional discharge, a $1,000 fine, and revocation of his driver’s license. On May 26, 2019, Putnam County Sheriff’s Office arrested Velesaca and charged him with DWI, operating a motor vehicle with .08 of 1% alcohol or more in the blood, aggravated unlicensed operation of a motor vehicle in the third degree, and three motor vehicle infractions. On January 22, 2020, Velesaca pleaded guilty to DWI ... [and] [t]he same day he was sentenced to 5 years’ probation, 240 hours of community service, and a $1,195 fine. On January 30, 2020, ICE arrested Velesaca pursuant to a warrant of arrest and detained him for the purpose of placing him into removal proceedings. That same day, ICE served Velesaca with an NTA [ (Notice to Appear) ] charging him as removable ... and a Notice of Custody Determination, which informed him that his detention was governed by 8 U.S.C. § 1226(a), and that ICE had determined that it would not set bond for his release. The custody notice also informed Velesaca that he could seek review of this decision (a bond redetermination) before an Immigration Judge. ...
Since his proceedings were commenced, Velesaca has had two master calendar hearings in connection with removal proceedings before an Immigration Judge, where he was represented by counsel at both hearings. On March 4, 2020, Velesaca, represented by counsel, had a bond hearing before an Immigration Judge. The Immigration Judge reviewed the evidence and heard argument from Velesaca’s counsel and ICE regarding whether Velesaca should be released on bond. Based on Velesaca’s history with DWIs, the Immigration

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Judge denied Velesaca’s request for release. At this time, there is no indication that Velesaca has filed an appeal of that bond decision with the Board of Immigration Appeals (“BIA”). On March 23, 2020, another master calendar hearing was held in Velesaca’s case. Velesaca’s counsel was present and waived Velesaca’s presence for that hearing. Counsel for Velesaca indicated that Velesaca wished to request voluntary departure from the United States, a limited form of relief from removal. The Immigration Judge continued the case to a hearing to be held on April 6, 2020, for Velesaca to submit documentation to support that request. His removal proceedings remain pending.
Id. at ¶ 15. And as to Mr. Uzategui, Joyce states:
[Uzategui] was admitted to the United States at Fort Lauderdale, Florida on September 27, 2017 as a nonimmigrant visitor with permission to remain in the United States for a period of six months (i.e., until March 2018). He remained in the United States beyond that period without authorization. On February 3, 2020, the Newburgh Town Police Department arrested Uzategui [ ] and charged him with petit larceny. The status of the criminal proceedings against [him] us unknown to me at this time. On February 18, 2020, ICE arrested Uzategui [ ] pursuant to a warrant of arrest and detained him for purpose of placing him into removal proceedings. That same day, ICE served [him] with an NTA charging him as removable ... and a Notice of Custody Determination, which informed him that his detention was governed by 8 U.S.C. § 1226(a), and that ICE had determined that it would not set bond for his release. The custody notice also informed Uzategui [ ] that he could seek review of this decision ... before an Immigration Judge. ... Since his proceedings were commenced, Uzategui [ ] has had one master calendar hearing in connection with his removal proceedings before an Immigration Judge, which was held

on March 3, 2020. He has not had a bond hearing yet, though it appears he filed a request for one on or about March 23, 2020. His next master calendar hearing is scheduled for April 9, 2020.
*7 Id. at ¶ 16. Defendants also submitted a declaration from a member of ICE’s “Health Service Corps,” but this declaration did not address the existence of the No-Release Policy. See Moon Decl., ECF No. 57.
D. Procedural History Plaintiffs commenced this action on February 28, 2020. See ECF No. 1. That same day, Plaintiffs filed a motion for class certification. See ECF Nos. 9, 10. The matter was assigned to me shortly thereafter. On March 16, 2020, Plaintiffs filed their operative amended Complaint, see ECF No. 31, and simultaneously filed an amended motion for class certification, see ECF Nos. 32, 33. Also on March 16, Plaintiffs filed the instant motion seeking a preliminary injunction. See ECF Nos. 40, 41. I set an expedited briefing schedule to allow for oral argument on March 31, see ECF Nos. 51, 54, and the matter was fully briefed as of March 26, 2020.
On March 31, oral argument was held telephonically. After hearing argument from both parties, I ruled extemporaneously, granting Plaintiffs’ motion. The following day, I issued a summary order with the exact terms of the injunctive relief awarded. See ECF No. 67.
Discussion
Plaintiffs contend that Defendants have adopted an unannounced policy of detaining “virtually everyone” they arrest—including those who (a) do not pose a risk of flight or a danger to the community, or (b) have disabilities—and that the No-Release Policy violates the APA, the Accardi doctrine, and the Rehabilitation Act, in so doing irreparably harming the detainees by separating them from their families, exacerbating preexisting health conditions, exposing them to acute health risks (most notably, COVID-19), and limiting their abilities to prepare bond applications. Defendants counter principally that Plaintiffs’ case is “fundamentally flawed” because

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the No-Release Policy does not exist. Defendants secondarily add that review is unavailable under the APA because Plaintiffs have not exhausted administrative remedies and because Plaintiffs do not challenge “final agency action”; and that, in any case, the INA restricts the ability of the Court to grant injunctive relief on a classwide basis.
A. Legal Principles
1. Preliminary Injunction Standard A party “seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A “preliminary injunction is an extraordinary remedy never awarded as of right.” Id. at 24.4
Consistent with the basic principle that preliminary injunctions aim to keep matters as they are rather than shift things to the way one party would like them to be, see, e.g., Unicon Mgmt. Corp. v. Koppers Co., 366 F.2d 199, 204 (2d Cir. 1966) (“It is hornbook law that the general purpose of a preliminary injunction is to preserve the status quo ...”) (quotation marks omitted), a party seeking to alter the status quo in the form of a so-called “mandatory injunction” must make a heightened showing to obtain relief, see, e.g., N. Am. Soccer League, LLC v. United States Soccer Fed’n, 883 F.3d 32, 37 (2d Cir. 2018) (“Because mandatory injunctions disrupt the status quo, a party seeking one must meet a heightened legal standard by showing a clear or substantial likelihood of success on the merits.”) (quotation marks omitted).5
2. The INA *8 Section 236 of the INA provides in relevant part as follows:
(a) Arrest, Detention, and Release. On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General—

(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole ...
8 U.S.C. § 1226(a) (emphases added). The Supreme Court has interpreted similar “may” language in other provisions of the INA to require the Attorney General to make “some level of individualized determination.” I.N.S. v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 194 (1991) (interpreting 8 U.S.C. § 1252); but see Reno v. Flores, 507 U.S. 292, 313 (1993) (the requirement of an “individualized determination” in some contexts “does not mean that [INS] must forswear use of reasonable presumptions and generic rules”).
Regulation 8 C.F.R. § 1236.1, promulgated under the INA, adds this gloss:
Any officer authorized to issue a warrant of arrest may, in the officer’s discretion, release an alien not described in [8 U.S.C. § 1236(c)(1)] of the Act, under the conditions at section [8 U.S.C. § 1236(a)(2) and (3)]; provided that the alien must demonstrate to the satisfaction of the officer that such release would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.
8 C.F.R. § 1236.1(c)(8) (emphases added).
Aliens may petition for review of an initial custody determination before an IJ, see 8 C.F.R. § 1236.1(d)(1); 8 C.F.R. § 1003.19(a), at which time the IJ may base its decision “upon any information that is available to the [IJ] or that is presented to him or her by the alien or the [government],” 8 C.F.R. § 1003.19(d); In re Guerra, 24 I. & N. Dec. 37, 39 (BIA 2006) (“[T]he Act does not limit the discretionary factors that may be considered by the Attorney General in determining whether to detain an alien ...”).6 An alien unsatisfied with the IJ’s decision may appeal to the Board of Immigration Appeals (“BIA”) for de novo review. See 8 C.F.R. § 1236.1(d)(3)(i); 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board may review questions of

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law, discretion, and judgment and all other issues in appeals from decisions of [IJs] de novo.”).
The Supreme Court has long “recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process.” Demore v. Kim, 538 U.S. 510, 523 (2003); see id. (“deportation proceedings would be in vain if those accused could not be held in custody pending the inquiry into their true character”) (quotation marks omitted). And the Court has interpreted Section 1226(a) to give DHS “discretion either to detain the alien or release him on bond or parole.” Nielsen v. Preap, 139 S. Ct. 954, 959 (2019).
3. The Accardi Doctrine *9 Pursuant to “deeply rooted principles of administrative law, not to mention common sense, government agencies are generally required to follow their own regulations.” Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, ––– F.3d ––––, 2020 WL 1320886, at *8 (2d Cir. Mar. 20, 2020). And “[w]hen agencies fail to do so, the APA (as developed by case law) gives aggrieved parties a cause of action to enforce compliance.” Id. This cause of action “is sometimes called ‘the Accardi principle,’ ” after the decision cited most frequently for it, United States ex rel. Accardi v. Shaughnessy, [347 U.S. 260 (1954)]. ... “The [Supreme] Court has variously suggested that it is inherent in the nature of delegated ‘legislative power’; that it is required by due process; and that it is a principle of administrative common law.” Thomas W. Merrill, The Accardi Principle, 74 Geo. Wash. L. Rev. 569, 569 (2006); see also, e.g., Montilla v. INS, 926 F.2d 162, 166 (2d Cir. 1991) (“The seeds of the Accardi doctrine are found in the long-settled principle that rules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency.”); id. at 167 (“The Accardi doctrine is premised on fundamental notions of fair play underlying the concept of due process.”).
The Accardi principle applies “even where the internal procedures are possibly more rigorous than otherwise would be required” by statute or by the Constitution. Montilla, 926 F.2d at 167 (quotation marks omitted). While courts have expressed reluctance to “review the merits of decisions made within the area of discretion delegated to administrative agencies,” they have “insisted that where the agencies have laid down their own procedures and regulations, those procedures and regulations cannot be ignored by the agencies themselves even where discretionary decisions are involved.” Smith v. Resor, 406 F.2d 14, 145 (2d Cir. 1969).

4. The APA
i. Arbitrary and Capricious Agency Action
A court reviewing agency action shall set aside such action “found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Consistent with this requirement that agency action be neither arbitrary nor capricious, it is a “longstanding principle of administrative law that ‘[a]n administrative agency has a duty to explain its ultimate action.’ ” Nat. Res. Def. Council v. Dep’t of Interior, 410 F.Supp.3d 582, 596 (S.D.N.Y. 2019) (quoting Cablevision Sys. Corp. v. F.C.C., 570 F.3d 83, 92 (2d Cir. 2009)). This requirement, “that an agency provide reasoned explanation for its action,” would “ordinarily demand that [the agency] display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); see also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (“Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.”). The explanation requirement “is not limited to formal rules or official policies and applies equally to practices implied from agency conduct.” Saget v. Trump, 375 F.supp.3d 280, 355 (E.D.N.Y. 2019).7
ii. Notice and Comment
*10 The APA, see 5 U.S.C. § 553, “requires agencies to provide notice and an opportunity for public comment before a rule is promulgated.” Time Warner Cable Inc. v. F.C.C., 729 F.3d 137, 167 (2d Cir. 2013). “[N]otice-and comment requirements apply only to” so-called substantive rules, that is, rules that “create new law, rights, or duties, in what amounts to a legislative act.” Id. at 168 (quotation marks omitted); see id. (the mark of a “substantive” rule “might well be characterized” as “whether the substantive effect is sufficiently grave so that notice and comment are needed”) (quotation marks omitted).

Velesaca v. Decker, Slip Copy (2020) 2020 WL 2114984
iii. Final Agency Action
The APA limits judicial review of agency decisions to review of “final agency action.” 5 U.S.C. § 704. The Supreme Court has held that “two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency’s decisionmaking process ...—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (quotation marks omitted). “Agency action” is defined in the APA as inclusive of “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). This definition has in turn been understood to require discreteness, see Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63 (2004), and, inversely, understood not to “extend to reviewing generalized complaints about agency behavior,” Cobell v. Kempthorne, 455 F.3d 301, 307 (D.C. Cir. 2006).

regulations further provide that:
No qualified individual with a disability in the United States, shall, by reason of his or her disability, be excluded from the participation in, be denied benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the Department.
6 C.F.R. § 15.30(a); see also id. at § 15.30(b)(1) (“[DHS], in providing any aid, benefit, or service, may not directly or through contractual, licensing, or other arrangements, on the basis of disability ... [p]rovide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others.”).

5. The Rehabilitation Act Section 504 of the Rehabilitation Act, see 29 U.S.C. 794(a), “prohibits programs and activities receiving federal financial assistance from excluding, denying benefits to, or discriminating against otherwise qualified individuals with a disability.” Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 196 (2d Cir. 2014) (quotation marks omitted). To establish a Section 504 violation, “a plaintiff must demonstrate that (1) he is a qualified individual with a disability; (2) the defendant is subject to one of the Acts; and (3) he was denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities, or was otherwise discriminated against by the defendant because of his disability.” Id. at 196-97 (quotation marks omitted). Public entities must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability ...” Hargrave v. Vermont, 340 F.3d 27, 37 (2d Cir. 2003).
Federal regulation provides that the term “disability” extends to, among other things, “[a]ny physiological disorder or condition,” “[m]ajor depressive disorder,” and “post-traumatic stress disorder.” 28 C.F.R. § 35.108. DHS

6. Limits on Injunctive Relief under the INA *11 Section 242 of the INA limits the authority of courts to impose injunctive relief:
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [8 U.S.C. §§ 1221-1231], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
8 U.S.C. § 1252(f)(1). Examining this language, the Supreme Court has observed that, “[b]y its plain terms, ... that provision is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of [§§ 1221-1232], but specifies that this ban does not extend to

Velesaca v. Decker, Slip Copy (2020)
2020 WL 2114984
individual cases.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 481-82 (1999). More recently, Judge Alison Nathan of this District had occasion to interpret and apply Section 1252(f)(1), concluding that the provision barred imposition of classwide injunctive relief that “would enjoin or restrain the manner” of the INA’s operation—in that case by mandating certain behavior upon which the INA is “silent.” Vazquez Perez v. Decker, 18-cv-10683, 2019 WL 4784950, at *6 (S.D.N.Y. Sept. 30, 2019).
B. Application Despite the long wind-up that it has taken to make it this far, this dispute ultimately turns on a relatively narrow factual question: Does the No-Release Policy exist or not? Plaintiffs claim that it does; Defendants retort that it does not. Notably, Defendants do not argue that a policy of the kind described by Plaintiffs would be permissible under the INA. To the contrary, Defendants affirm—again and again—that ICE is exercising discretion in making custody determinations. See, e.g., Def. PI Opp. Mem., ECF No. 55, at 22 (“What exists is a system by which ICE considers each alien for release ...”), 23 (“[T]he record reflects that an ICE supervisory officer makes the final discretionary determination after using a computerized risk assessment tool ...”), 25 (arguing that “decision-making” authority is left “squarely in the hands of ICE personnel,” which is “the hallmark of a discretionary, individualized decision”). The centrality of this factual issue cannot be overstated. If the No-Release Policy does not exist, as Defendants contend, then Plaintiffs’ challenges largely evaporate. For example, if ICE officers are in fact making individualized custody findings, then there is no need for the Court to impose an order requiring ICE officers to make such findings; if ICE is not denying release on bond as a matter of general policy, then there has been no sub silentio shift in policy in contravention of the APA. And so on. For the reasons below, and as I explained in my ruling at oral argument, I find that, on the current record, Plaintiffs have established a clear and substantial likelihood of being able to demonstrate that the No-Release Policy exists, breathing life into their claims, both under the APA and Accardi doctrine, and that none of the procedural hurdles identified by Defendants preclude my awarding injunctive relief in Plaintiffs’ favor.
*12 Preliminarily, although the language of Plaintiffs’ request for relief injects some semantic ambiguity, see Pl. PI Mot. at 38 (requesting a Court order “requiring the government to promptly provide the petitioners with an individualized determination”) (emphasis added), at its

core, Plaintiffs’ plea for injunctive relief seeks a traditional injunction, rather than a so-called “mandatory” injunction. I come to this conclusion for a few reasons. First, the relief available under the APA is for courts to “set aside” agency action, rather than to require the agency to embark on some new course of action. New York v. Dep’t of Commerce, 351 F.Supp.3d 502, 671 (S.D.N.Y.) (“By the statute’s plain terms ... the normal remedy in a successful APA challenge is to set aside—that is, vacate—the final agency action at issue.”) (quotation marks omitted), aff’d in part, rev’d in part on other grounds, 139 S. Ct. 2551 (2019); see also 5 U.S.C. § 706. Second, any relief that went beyond requiring the agency to follow the law, would run afoul of the INA’s restriction on classwide injunctive relief. See 8 U.S.C. § 1252(f)(1). And as a matter of logic: while an injunction forbidding Defendants from acting upon any “No-Release Policy” may very well cause the government to affirmatively change its behavior, this change is in essence an injunction against an aberration from ICE policy (and the APA), rather than an injunction mandating some new form of court-conjured behavior.8 Plaintiffs therefore need only show a likelihood of success on the merits, rather than a “clear or substantial” likelihood of success—although for the reasons that follow, Plaintiffs could meet either burden.
The requirements that Plaintiffs show irreparable harm and that a balance of the equities favors granting their motion are both easily met here. Plaintiffs assert that their injuries are “imminent and certain” because Defendants have “implemented the No-Release Policy” and Plaintiffs are, as a result, exposed to “serious medical risks—increasing daily with the spread of COVID-19—and harms [to] their families, as well as [ ] ongoing violation of constitutional rights.” Pl. PI Mem. at 17.9 Plaintiffs urge that COVID-19 makes their unnecessary detention “particularly dangerous,” as the virus is highly contagious and correctional facilities are “ticking time bombs” given the crowding, weakened immune systems of inmates, and the like. Id. at 14. In response, Defendants principally argue that Plaintiffs cannot show irreparable harm because they complain of issues with detention “that may be experienced by anyone in detention,” and, in any event, Plaintiffs can “seek reconsideration of ICE’s initial custody determinations” before an IJ.10 Def. PI Opp. Mem. at 33-36.
*13 Defendants miss the mark. For one thing, “[s]everal courts in this circuit have,” quite properly I would add, “concluded that the deprivation of an alien’s liberty is, in and of itself, irreparable harm.” Sajous v. Decker, 18-cv-2447, 2018 WL 2357266, at *12 (S.D.N.Y. May 23, 2013) (quotation marks and alterations omitted); see id. (collecting cases); see also Jolly v. Coughlin, 76 F.3d

Velesaca v. Decker, Slip Copy (2020)
2020 WL 2114984
468, 482 (2d Cir. 1996) (a properly alleged violation of a constitutional right triggers a presumption of irreparable harm). For another, the fact that Plaintiffs may seek review by an IJ of their initial bond determination does nothing to mitigate the harm to Plaintiffs in the time they are in detention awaiting review, see, e.g., R.I.L-R v. Johnson, 80 F.Supp.3d 164, 185 (D.D.C. 2015) (“While it is true that an alien who is denied release by ICE may seek de novo review of that denial from an immigration judge, ... this potential redetermination ignores the fact that it occurs weeks or months after ICE’s initial denial of relief. It thus offers no adequate remedy for the period of unlawful detention members of the class suffer before receiving this review—the central injury at issue in this case.”). What’s more, Plaintiffs here are not challenging determinations by IJs after detention per se; they are challenging a policy that constrains initial custody determinations, making it rather doubtful that later review by an IJ would provide meaningful relief. And as to the balance of the equities, Plaintiffs contend that ICE has acted in derogation of the APA and its own regulations, and there can be no doubt that the public interest favors requiring the government to comply with the law. See, e.g., L.V.M. v. Lloyd, 318 F.Supp.3d 601, 620 (S.D.N.Y. 2018) (“[T]his Court is hard-pressed to see how setting aside an unlawful practice could be against the public interest.”).
Next, the key question: Has ICE indeed adopted the No-Release Policy? As noted supra, Plaintiffs argue, and Defendants do not dispute, that 8 U.S.C. § 1226(a) and its implementing regulations require ICE officials to make an individualized custody determination. See Pl. PI Mem. at 20-22. Plaintiffs argue that the data analyzed and reviewed in the Hausman Declaration show that ICE has been applying a No-Release Policy. For instance, as quoted above, the Declaration states:
The dataset shows a substantial increase in detention rates for final decisions in the New York Field Office beginning in 2017. In the period from the beginning of the data (January 2013) until June 5, 2017, 2,227 of 13,532 cases (approximately 16%) in fact resulted in a release decision, and an additional 1,719 (approximately 13%) had a bond set. In the period from June 6, 2017 to September 2019, 109 of 6,788 (under 2%) were released, and 4 of 6,901 (under one-tenth of 1% had a bond set.)

Hausman Decl. at ¶ 10. Plaintiffs argue that the numbers speak for themselves and I agree. One need not fix the precise point between 2015 and 2017 that a change took place to see plainly that a change, of considerable magnitude, took place. Per the data, ICE went from releasing (on bond or recognizance) upwards of 30% of alien arrestees to releasing around 2%. The percentage of arrestees released in 2013 and 2014 was around 40%; in 2018 and 2019, between 1% and 2%. The comparisons are striking.
Defendants make several attempts to impeach the data. None is persuasive. First, Defendants point out that the numbers suggest that the risk-assessment tool has, over time, increasingly made a recommendation that an ICE supervisor make the final call on custody. See Def. PI Opp. Mem. at 23-24. But even if the risk-assessment tool increasingly passed along such decisions to ICE supervisors, this would not change that (a) the tool seems to have been modified to recommend bail and release in fewer instances, and (b) around 2017, the percentage of aliens detained without bond steeply increased. Second, Defendants make the related argument that the data show an uptick in the number of times in which ICE has deviated from the risk-assessment tool’s recommendation. See id. at 26-27. But again, this does nothing to explain why the denials of release skyrocketed. Third, Defendants argue that the incidence of denials focuses only on the end result, rather than the input-variables, e.g., the fact that in 2019, “2,108 out of a total of 2,477 arrests made by [ICE] New York involved aliens with a conviction or pending charges in a criminal matter,” id. at 13, or the fact that “there has been a rise in the nationwide11 trend of aliens who have been released from ICE detention during the pendency of their removal proceedings of failing to appear for their hearings,” id. at 14. Assuming arguendo the accuracy of these numbers, and the implicit argument that criminal activity of any kind is a fair proxy for risk of flight or danger to the community, Defendants’ contention still fails because it does not allege that these numbers changed markedly in or around 2017, such that an abrupt shift could be explained. For example, Defendants do not argue that in 2013, only few aliens arrested by ICE had a conviction or pending criminal charges, while after 2017, suddenly, many aliens were thus situated. To the contrary, the data in the record shows an increase, not a decrease, in the number of ICE arrests of persons with no criminal background. See ICE Enforcement in New York City, ECF No. 14-6, at 2.
*14 Fourth and finally, Defendants rely heavily on the Joyce Declaration, in which Mr. Joyce denies that the No-Release Policy exists:

Velesaca v. Decker, Slip Copy (2020)
2020 WL 2114984
[S]ignificantly, ICE has affirmed that no such policy exists. Joyce Decl. ¶ 13. ICE has affirmed that it conducts individualized custody determinations for each alien detained under § 1226(a), and that the agency considers flight risk and dangerousness in making such determinations, in accordance with its regulations.
Def. PI Opp. Mem. at 33; see also Joyce Decl. ¶ 13 (ICE “has no policy of categorically denying release to all aliens” held pursuant to Section 1226(a)).
The Court is aware of the deference owed to agency decisionmaking and to the technical expertise that agencies wield in their resolution of complex and highly specialized subject matter. But the agency cannot credibly dispute that which its own data strongly shows and that is that a No-Release Policy substantially has been put into effect.
I find that Plaintiffs have demonstrated, at this stage, that they are likely to succeed in proving the existence of the No-Release Policy. As Defendants acknowledge, a No-Release Policy is inconsistent with the INA and regulations passed thereunder, at least without notice-and-comment rule making. Plaintiffs have thus shown a likelihood of success on the merits of their claims. As the Court has already found that Plaintiffs have shown they will suffer irreparable harm without relief and that the equities tilt in Plaintiffs’ favor, injunctive relief is called for here.
*****
Defendants’ additional objections are without merit, as is Plaintiffs’ contention under the Rehabilitation Act.
First, Defendants argue that Plaintiffs fail to challenge “final agency action” and that Plaintiffs have other “adequate remed[ies]” available to them, precluding judicial review under the APA, see 5 U.S.C. § 704. See Def. PI Opp. Mem. at 28. Defendants argue that Plaintiffs point to no “regulation, letter, memorandum, or other form of written material the comprises this policy that they allege is being applied,” and that Plaintiffs can challenge their custody determinations before an IJ and ultimately the BIA. See id. at 29-31. But finality can be gleaned from agency action and the effects thereof and does not require any written evidence, see supra note 7, and, as indicated already, Plaintiffs’ challenge is best viewed as one against the No-Release Policy writ large,

rather than their individual custody findings, and as such it is improbable that Plaintiffs can receive an adequate remedy by appealing to an IJ or the BIA.
Second, Defendants argue that Accardi is inapplicable here because the No-Release Policy does not exist. See Def. PI Opp. Mem. at 33. Having found that the policy does exist, Defendants are out of luck on this front.
Third, Defendants argue that 8 U.S.C. § 1252(f)(1) prevents the Court from imposing a classwide injunction that does anything beyond requiring ICE to follow the law. See id. at 40. Following the law, however, is precisely what the Court has ordered, see ECF No. 67.
Finally, Plaintiffs ask that, as part of the injunctive relief imposed, that the Court require ICE officials to consider Plaintiffs’ “disability” when making custody rulings. See Pl. PI Mem. at 38. But, unlike their claims regarding the No-Release Policy, Plaintiffs put forth no data supporting their claim that ICE is neglecting to account for the disabilities of aliens that are arrested, and no law or regulation that requires a certain weight be given to disability. See, e.g., 8 C.F.R. § 1236.1(c)(8) (requiring only that an alien seeking release must demonstrate to the ICE officer that the alien is neither a “danger to property or persons” nor a flight risk). On top of that, Defendants represent that they do take disability into account, but that “[w]hile an alien’s disability may impact a custody determination, ultimately, the question of whether an alien is to be detained pending removal proceedings is guided by whether the alien demonstrates to the satisfaction of the officer that he or she is not a danger to the community or a flight risk.” Joyce Decl. at ¶ 12. The Court lacks evidence that ICE is in fact disregarding disability in its custody determinations, and further cannot find any statutory support that would justify ordering ICE to give a particular weight to disability vis-à-vis the other factors ICE considers. As such, I do not order any relief on the Rehabilitation Act claim at this time.
Conclusion
*15 For all the foregoing reasons, and all the reasons stated on the record at oral argument, Plaintiffs’ motion for injunctive relief is granted as follows:
The Court grants preliminary injunctive relief, enjoining Defendant Thomas R. Decker in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement (“ICE”), and

Velesaca v. Decker, Slip Copy (2020) 2020 WL 2114984

all successors appointed or acting, from using or

ECF No. 67. The government timely provided a report.

applying practices or policies relating to the discretion

See ECF No. 70.

of ICE officers to release to the community on

recognizance or pursuant to bond, under Section 236 of

In the time between my oral ruling and the issuance of

the Immigration and Nationality Act, 8 U.S.C. §

this written order, the parties have notified the Court that

1226(a), and all applicable implementing regulations,

they have had disagreements regarding implementation of

to any person now or hereafter arrested by Defendants

the injunction. See ECF Nos. 71, 72, 73. These

or officers or agents directly or indirectly supervised by

disagreements have culminated in the government’s filing

Defendants, in any manner more stringent or more

of a motion to clarify and/or amend the injunction. See

onerous than those used or applied prior to June 6,

ECF No. 74. The Court will issue a separate order, in due

2017.

course, setting a briefing schedule and an argument date

This order shall not apply to any person so arrested

on that motion.

who has had his bond or recognizance application

heard by an immigration judge.12

SO ORDERED.

Defendants shall file a report on April 17, 2020, identifying, as of April 10, 2020, all persons thus

All Citations

arrested by or under the authority of ICE’s New York Field Office and, of such persons, all such persons who

Slip Copy, 2020 WL 2114984

have had their bond or recognizance application heard

by an immigration judge.

Footnotes

1

The named Defendants include the United States Department of Homeland Security (“DHS”), the federal agency

responsible for arresting, detaining, and prosecuting persons suspected of civil immigration violations; Chad Wolf,

the acting Secretary of DHS; ICE, a subcomponent of DHS; Matthew Albence, the acting Director of ICE; Thomas R.

Decker, the director of ICE’s New York Field Office; and Carl Dubois, the Sheriff of Orange County, and the individual

charged with oversight of the Orange County Correctional Facility, which houses named petitioners Velesaca and

Uzategui.

2

As discussed infra, Plaintiffs also seek relief on behalf of a subclass of detained aliens with disabilities. Plaintiffs have

filed a motion for class certification, but this motion, filed on February 28, 2020, has not yet been briefed.

3

As noted above, see supra note 2, Neither the class nor subclass has, as of yet, been certified, and Plaintiffs’ motion

for certification, see ECF Nos. 9, 10, 32, 33, remains pending.

4

While Plaintiffs’ motion for class certification remains pending, as a general matter, courts “may conditionally certify

the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity

powers,” Strouchler v. Shah, 891 F.Supp.2d 504, 517 (S.D.N.Y. 2012) (quotation marks omitted); accord Vazquez

Perez v. Decker, No. 18-cv-10683, 2019 WL 4784950, at *4 (S.D.N.Y. Sept. 30, 2019).

5

Plaintiffs urge in a footnote that they need only show, as an alternative to likelihood of success on the merits, a

“serious question going to the merits,” see Pl. PI Mem. at 18 n.6, but this is incorrect. As Defendants point out, the

Second Circuit has held that this standard is inappropriate when, as here, the challenge is made with respect to

government action taken pursuant to a statutory or regulatory scheme. See Trump v. Deutsche Bank AG, 943 F.3d

627, 637 (2d Cir. 2019) (“[W]e have repeatedly stated that the serious-questions standard cannot be used to

preliminarily enjoin governmental action.”). Plaintiffs do not press this point in their reply brief.

6

A custody determination by ICE made as a matter of discretion is not judicially reviewable. See 8 U.S.C. § 1226(e)

(“The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to

review. No court may set aside any action or decision by the Attorney General under this section regarding the

detention or release of any alien or the grant, revocation, or denial of bond or parole.”).

Velesaca v. Decker, Slip Copy (2020) 2020 WL 2114984

7

Thus, a number of cases have involved courts inferring from a course of agency conduct that the agency has

adopted a general policy, even in the face of agency denials of such policies existing. See, e.g., Elec. Privacy Info Ctr.

v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 7 (D.C. Cir. 2011) (in rejecting argument that agency had simply issued a

general statement of policy, reasoning that “our cases make clear that an agency pronouncement will be considered

binding as a practical matter if it either appears on its face to be binding, or is applied by the agency in a way that

indicates it is binding”) (quotation marks omitted); U.S. Tel. Ass’n v. F.C.C., 28 F.3d 1232, 1234 (D.C. Cir. 1994)

(“Although sometimes we face the difficulty of reviewing a statement before it has been applied and therefore are

unsure whether the agency intends to be bound, that is not so in this case. The schedule of fines has been employed

in over 300 cases and only in 8 does the Commission even claim that it departed from the schedule.”); McLouth

Steel Prod. Corp. v. Thomas, 838 F.2d 1317, 1319 (D.C. Cir. 1988) (same for 4 exceptions out of 100 cases); Damus v.

Nielsen, 313 F.Supp.3d 317, 339-42 (D.D.C. 2018) (finding the numbers “irrefutable” where during one eight-month

stretch two ICE offices denied parole applications in 100% of cases, another two ICE offices denied applications in

92% and 98% of cases respectively, and the evidence showed that previously ice “granted parole to more than 90%

of asylum-seekers”); cf. also Amadei v. Nielsen, 348 F.Supp.3d 145, 165 (E.D.N.Y. 2018) (“[N]umerous courts have

found that a plaintiff can satisfy the [APA’s] finality requirement without offering evidence of a formal or official

statement regarding the agency’s position.”).

8

Cf. Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (“The distinction between

mandatory and prohibitory injunctions is not without ambiguities or critics. Determining whether the status quo is

to be maintained or upset has led to distinctions that are more semantic than substantive. ... An injunction that

prohibits a party from refusing to permit some act may, as a practical matter, alter the status quo.”) (quotation

marks and alterations omitted).

9

Specifically, Plaintiffs contend that detention (1) prevents detainees from meaningfully preparing for their

immigration cases, Pl. PI Mem. at 9; (2) cuts off families from detainee’s earnings, see id.; (3) exposes detainees to

“grossly inadequate” healthcare, which includes a track record of New York City area facilities “denying people

access to vital medical and mental health treatment,” id. at 10 (citing, inter alia, a report by “Human Rights First,”

which concluded that (“[m]any detained people report substandard or denial of medical care, long waits to be seen

by a medical professional, and a lack of proper medication,” ECF No. 14-14, at 1); and (4) risks worsening detainees’

mental health, see id. at 10-11. Plaintiffs also adduce evidence with respect to named Plaintiffs’ Velesaca and

Uzategui facing danger from COVID-19 and continued detention. See, e.g., ECF Nos. 35, 36.

10 The APA provides that actions for which there exists some “other adequate remedy” are not reviewable. 5 U.S.C. § 704. This exception has been read narrowly. See, e.g., R.I.L-R, 80 F.Supp.3d at 185 (“The Supreme Court has long construed the ‘adequate remedy’ limitation on APA review narrowly, emphasizing that it ‘should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action.’ ”) (quoting Bowen v. Massachusetts, 487 U.S. 879, 903 (1988)).

11 I note that because, among other reasons, Defendants reference only a “nationwide” trend, the reference has limited use for the present lawsuit, targeted only at a select few New York City-area ICE facilities.

12 Both of the named petitioners in this case have already had hearings on bond before an IJ. Nonetheless, as I observed at oral argument, due to the recurrent nature of the issue here, the putative class action may continue. See, e.g., Ortiz v. Ciox Health LLC, No. 17 Civ. 4039, 2018 WL 1033237, at *3 (S.D.N.Y. Feb. 22, 2018) (“Under the appropriate circumstances, class certification may relate back to the filing of the complaint, even if a named plaintiff’s claims for damages have been resolved. Relation back most frequently applies where the claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.”) (alterations, citations, quotation marks omitted).

 
 Case 1:20-cv-01803-AKH Document 91 Filed 07/06/20 Page 1 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------- X

JOSE L. VELESACA and ABRAHAM CARLO :

UZATEGUI NAVARRO, on his own behalf and :

behalf of others similarly situated,

:

:

Petitioners-Plaintiffs, :

:

-against-

:

:

THOMAS R. DECKER, in his official capacity as :

New York Field Office Director for U.S. :

Immigration and Customs Enforcement; :

MATTHEW ALBENCE, in his official capacity as :

the Acting Director for U.S. Immigration and :

Customs Enforcement; UNITED STATES :

IMMIGRATION

AND

CUSTOMS :

ENFORCEMENT; CHAD WOLF, in his official :

capacity as Acting Secretary of the U.S. Department :

of Homeland Security; UNITED STATES :

DEPARTMENT OF HOMELAND SECURITY; :

CARL E. DUBOIS, in his official capacity as the :

Sheriff of Orange County,

:

:

Respondents-Defendants. :

-------------------------------------------------------------- X

ALVIN K. HELLERSTEIN, U.S.D.J.:

ORDER DENYING MOTION TO MODIFY AND CLARIFY PRELIMINARY INJUNCTION
20 Civ. 1803 (AKH)

The government moved for clarification and modification of my order of March

31, 2020, preliminarily enjoining the New York Field Office of United States Immigration and

Customs Enforcement (“ICE”) from detaining nearly all aliens it arrested, without bond and

without considering if the person arrested posed a risk of flight or a danger to the community. I

found that the statistics of detentions following arrests, before and after June 6, 2017, clearly

showed that ICE had changed its policy without announcing a change. See ECF No. 67. I

granted the preliminary injunction and made findings and conclusions immediately following

1

Case 1:20-cv-01803-AKH Document 91 Filed 07/06/20 Page 2 of 8
argument, and explained my reasoning more fully in my written decision of May 4, 2020. See
ECF No. 78.
The government argues that the preliminary injunction is insufficiently specific as
to what ICE must do, unduly broad as to its coverage, and not applicable to persons detained as
of April 10, 2020. I denied the government’s motion and gave my reasons immediately
following argument of the motion, followed by a summary order. ECF No. 84. I write to give a
fuller explanation of my decision.
Background
A. The Injunction
I granted the following preliminary injunction, orally on March 30, 2020 and, by
written summary order thereafter:
The Court grants preliminary injunctive relief, enjoining Defendant Thomas R. Decker in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement (“ICE”), and all successors appointed or acting, from using or applying practices or policies relating to the discretion by ICE officers to release to the community on recognizance or pursuant to bond, under … 8 U.S.C. § 1226(a), and all applicable implementing regulations, to any person now or hereafter arrested by Defendants or officers or agents directly or indirectly supervised by Defendants, in any manner more stringent or more onerous than those used or applied prior to June 6, 2017.
This order shall not apply to any person so arrested who has had his bond or recognizance application heard by an immigration judge.
The injunction required the government to file a supplementary of compliance:
Defendant shall file a report on April 17, 2020 identifying, as of April 10, 2020, all persons thus arrested or under the authority of ICE’s New York Field Office and, of such persons, all such persons who have had their bond or recognizance application heard by an immigration judge.
ECF No. 67, at 1-2. Both parties represented, after hearing the terms of the injunction, that the
injunction had “touched on everything that needs to be said.” ECF No. 68, at 53:14-18. 2

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Pursuant to Rule 65(d) of the Federal Rules of Civil Procedure, the preliminary injunction was supported by findings and conclusions, first stated orally at the conclusion of argument and then explained more fully by written decision. ECF Nos. 67, 78. The government had denied that there had been any change of policy regarding detentions after arrest and before a bond hearing, contending that it consistently had provided individualized determinations, based on risks of flight and danger to the community, as required by 8 U.S.C. § 1226(a). The facts showed otherwise, as I made clear in both my oral and written findings.
B. The Government’s Compliance with the Injunction As the injunction required, on April 17, 2020, the government filed its report,
representing (a) the number of all aliens detained pursuant to 8 U.S.C. § 1226(a) as of April 10, 2020, (b) of those detained, the number of aliens who have had bond hearings before an immigration judge, and (c) and further representing that ICE, since the order’s issuance, had taken steps to ensure that all aliens receive an individualized bond hearing. See ECF No. 70, at 1-2. The government’s report stated:
As of April 10, 2020, there were 159 aliens detained by ICE’s New York Field Office pursuant to § 1226(a). 40 of those aliens had bond hearings before an immigration judge, and 119 had not had a bond hearing. Of the 119 aliens who had not yet had a bond hearing, 21 aliens withdrew requests for a bond hearing, and at least 1 alien appeared for a bond hearing but refused to proceed on the asserted basis that he is a Velesaca class member. Id. at 2 (citations omitted). ICE then described the steps that it had taken to improve its internal protocols, in order to comply with the preliminary injunction and the governing law, 8 U.S.C. § 1226(a): ICE’s New York Field Office … has taken the following steps since this Court issued the preliminary injunction. Deputy Field Office Director William Joyce
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issued guidance concerning a new process for officers to complete to ensure that all aliens detained by ICE’s New York Field Office under 8 U.S.C. § 1226(a) receive an individualized custody determination in compliance with the statute and its implementing regulations. This is a work in progress, particularly given the current focus of resources on the COVID-19 pandemic, and the New York Field Office is still working on finalizing a process to apply to such cases going forward. A significant aspect of this process will involve a worksheet for the officers to complete to assist the officers in evaluating danger to the community and risk of flight. The intent is for the officers to document that there was an individualized determination. Attorneys from ICE’s Office of the Principal Legal Advisor will be providing trainings to officers in ICE’s New York Field Office on conducting individualized custody determinations, and have already conducted one such training to the Supervisory Detention and Deportation Officers.
Id. at 1 (citations omitted).
Plaintiffs complained that the government’s report did not make clear if the
custody determinations made by ICE extended to those detained as of April 10, 2020, the
members of the class on whose behalves the lawsuit had been filed. Plaintiff’s letter of April 27,
2020, asked the court to direct ICE to make custody determinations, not only for persons
detained after April 10, 2020, but also for those detained as of April 10, 2020, 108 in number:
We write … to request an instruction directing ICE to identify whether members of the class in this case have received the custody redetermination that this Court previously ordered. While ICE identified a large number of detained class members in its April 17th letter, its correspondence suggests that no class members on ICE’s list have received a redetermination, and the petitioners’ repeated attempts to get that information have failed.
….
The preliminary injunction applies to all people who have been or will be arrested by ICE’s New York Field Office and are entitled to an individualized consideration of whether they should receive release to the community on recognizance or pursuant to bond, under 8 U.S.C. § 1226(a), except for anyone who has had his bond or recognizance application heard by an immigration judge. According to ICE’s report, as of April 10th, there were at least 108 such individuals currently detained in ICE jails. But the report does not state whether any of them has yet received the custody determination to which they are entitled.
ECF No. 71, at 1-2 (quotations, citations, and alterations omitted).
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The government conceded that “ICE has not re-determined custody for putative class members,” ECF No. 73, at 1, and moved to clarify that it did not have this obligation. The government contended that the court’s injunction is insufficiently specific to enable it to comply, although it seemed to have had no problem in applying the injunction to persons detained after April 10, 2020.
I held, following argument, that the injunction was intended to apply, and did apply, to persons detained as of April 10, 2020. The injunction stated that it applied “to any person now or hereafter arrested.” Its application to persons detained as of April 10, 2020 is plain, and requires no further clarification. From the absence of any further complaint by plaintiff or remonstrance by the government, the issue now seems academic. I assume that all persons in plaintiffs’ class, and that all persons thereafter detained, have been given individualized bond determinations, and that this will continue.
C. The Government’s Motion to Modify and Clarify the Injunction Order The government contends that the order is insufficiently specific to satisfy Rule
65(d), Fed. R. Civ. P., exceeds the scope of relief available under the Administrative Procedure Act and 8 U.S.C. § 1252(f)(1), and intrudes on the discretion of the Executive Branch. See ECF No. 75, at 1. The government’s contentions lack merit.
Discussion Federal Rule of Civil Procedure 65(d) provides that “[e]very order granting an injunction … must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail, and not by referring to the complaint or other document, the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1). An injunction must be “specific and definite enough to apprise those within its scope of the conduct that is being proscribed.” City of
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New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 143 (2d Cir. 2011) (quoting S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240-41 (2d Cir. 2001)). The enjoined party must be able to ascertain “from the four corners of the order precisely what acts are forbidden or required.” Id. at 144 (quotation marks omitted). However, an excess of literalism is not required; the import of otherwise ambiguous language may become clear “when it is read in the context of the entire injunction and of the judge’s decision upon issuing the injunction.” In re Baldwin-United Corp., 770 F.2d 328, 339 (2d Cir. 1985). An injunction should be “no broader than necessary to cure the effects of the harm caused by the violation,” and “narrowly tailored to fit specific violations.” Mickalis Pawn Shop, 645 F.3d at 144.
The basis of the government’s argument of indefiniteness is its persistent denial that there was a radical difference in its detention policies, before and after June 6, 2017. ICE’s own statistics show this difference. Before June 2017, around 30 percent of detained aliens were released to the community. After that date, around 2 percent were released. The government never has been able to explain the difference. There is no basis to believe that persons detained prior to June 2017 posed greater, or lesser, risks of flight or danger to society, than persons detained after June 2017. The inference is compelling that a change in ICE’s practices, before and after June 2017, explains the dramatic change in statistics of detention.
In light of the government’s refusal to explain its change in practice in or about June 2017, there is no better way to define the practice that is enjoined than that stated in the injunction—“using or applying practices or policies relating to the discretion by ICE officers to release to the community on recognizance or pursuant to bond, under … 8 U.S.C. § 1226(a), . . in any manner more stringent or more onerous than those used or applied prior to June 6, 2017.”
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Section §1226(a) requires detention officers to make individualized custody determinations following arrest and detention. The decision must be made by the detaining officer; it cannot be deferred until hearing and determination by an Immigration Judge, a process that can takes weeks or months. The failure of detention officers to make this determination after June 6, 2017, except in fewer than two percent of cases, tantamount to a “no release” policy, is the specific violation that the preliminary injunction seeks to remedy. The injunctive restraint is no broader than is necessary to remedy the government’s violation of statute. Government counsel made no complaint or suggestion of modification when, after a recess following argument of the motion, I stated the language of the injunction. Indeed, the affirmative action taken by ICE to comply with the injunction, to “ensure that all aliens detained … receive an individualized custody determination,” is itself testament to the ability of the government to understand the injunction, and to comply with it. See ECF No. 70, at 1.
The government’s offer of substitute language, set out in the footnote, requires nothing more than that the government should obey the law; it says nothing about the conduct, violative of the law, that is to be enjoined.1 The government’s formulation is useless.2
The remaining arguments of the government lack merit. The government argues that the injunction, rather than restraining conduct, orders it to provide redeterminations of persons arrested and detained as of April 10, 2020 and is therefore a mandatory injunction.
1 The full language proposed by the government is as follows: “The Court grants preliminary injunctive relief, enjoining the New York Field Office for U.S. Immigration and Customs Enforcement (‘ICE’) from making initial custody determinations in a manner inconsistent with 8 U.S.C. § 1226(a) and applicable implementing regulations. Specifically, ICE’s New York Field Office is enjoined from using or applying practices or policies relating to such initial custody determinations that are inconsistent with 8 U.S.C. § 1226(a) and applicable implementing regulations, such as a policy or practice of denying release as a blanket matter without making individualized determinations on a case by case basis.” ECF No. 75, at 9.
2 If the government wishes to change detention policies, it must comply with notice-and-comment rule-making procedures set forth in the APA.
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However, the boundary between negative injunctions and mandatory injunctions is not set by whether the enjoined party is forced to act, see, e.g. Mastrio v. Sebelius, 768 F.3d 116, 120-21 (2d Cir. 2014) (noting that “preserving the status quo is not confined to ordering the parties to do nothing: it may require parties to take action”), but by whether the injunction alters the “status quo,” N. Am. Soccer League, LLC v. United States Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018). And, in this context, the status quo is “the last actual, peaceable uncontested status which preceded the pending controversy,” id. (quotation marks omitted); here, the time before the change in government policy and practice.
The rest of the government’s arguments, that the injunction exceeded the bounds of permissibility under the Administrative Procedure Act, and that it intruded on the Executive’s Article II discretion was adequately discussed in my previous opinion, and need not be restated.
Conclusion For all the reasons stated on the record at oral argument and explained more fully in this opinion, Defendants’ motion for modification and clarification is denied. The parties are directed to appear for a telephonic status conference on August 25, 2020, at 11:00 a.m., in order to chart a course for the remainder of this litigation.

SO ORDERED.

Dated:

July 6, 2020 New York, New York

____________/s/_______________ ALVIN K. HELLERSTEIN United States District Judge

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