UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

MARIA GUADALUPE REYES GAONA, )

TOMAS TORRES CURIEL, ) 

ANDRES PONCE QUINTERO, ) 

JORGE BECERRA ORTIZ, ) 

FRANCISCO CARBAJAL, ) 

MARCOS JOSE BARBOZA VALLENILLA,) 

 ) 

Petitioners, ) 

 ) 

 v. ) Docket No. 5:20-cv-00473-FB 

 ) 

U.S. DEPARTMENT OF HOMELAND ) San Antonio, Texas 

SECURITY, CUSTOMS AND BORDER ) September 1, 2020 

PROTECTION, IMMIGRATION AND ) 

CUSTOMS ENFORCEMENT, WILLIAM P.) 

BARR, Attorney General of the ) 

United States, CHAD F. WOLF, ) 

Acting Secretary of the U.S. ) 

DHS, DANIEL BIBLE, ICE Field ) 

Office Director, RAYMOND ) 

CASTRO, Warden, South Texas ) 

Detention Center, GEO Group ) 

Inc., SR. WARDEN ORLANDO PEREZ,) 

MATTHEW T. ALBENCE, ) 

 ) 

Respondents. ) 

_______________________________) 

 

TRANSCRIPT OF MOTION HEARING (BY PHONE) 

BEFORE THE HONORABLE RICHARD B. FARRER 

UNITED STATES MAGISTRATE JUDGE 

A P P E A R A N C E S: 

FOR THE PETITIONERS: 

Curtis F. Doebbler 

RAICES

802 Kentucky Avenue

San Antonio, TX 78201

Bashir Ghazialam 

Law Offices of Bashir Ghazialam

P.O. Box 928167

San Diego, CA 92192

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FOR THE RESPONDENTS: 

Matthew M. Mueller 

U.S. Attorney's Office

601 NW Loop 410, Suite 600

San Antonio, TX 78216

COURT RECORDER: FTR Gold 

Proceedings reported by electronic sound recording. Transcript 

produced by computer-aided transcription. 

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(9:49 a.m.)

THE COURT: All right. So next up before the Court,

set for an evidentiary hearing, is -- on a preliminary

injunction, is case number SA:20-CV-00473-FB, Gaona, et al,

versus U.S. Department of Homeland Security, et al.

And then, counsel, would you please introduce yourselves

for the record.

MR. MUELLER: Matthew Mueller on behalf of

respondents.

MR. DOEBBLER: Curtis Doebbler on behalf of

petitioners.

MR. GHAZIALAM: Good morning, Your Honor. Bashir

Ghazialam on behalf of petitioners.

THE COURT: All right. Good morning to you all.

Thanks again for the excellent briefing. I've been through

it. I reread pretty much everything in the case last night and

this morning. I'm aware of the -- of the sort of discovery

issue that's arisen. And that's probably a pretty good place

to start. That really is going to, I think, overlap and

involve some of the other issues in the case and, in

particular, the pending motion to dismiss, given that, if there

is discovery that's needed in order to inform the Court's

jurisdiction, then, you know, it's appropriate to take it up.

On the other hand, if it turns out that, even assuming things

go a certain way during discovery, if there still can't be

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jurisdiction, then, you know, that may inform things as well.

So we'll take up those -- that issue of discovery here at this

hearing first, before we move on to anything else.

I think that probably, though, the best place to start,

Mr. Doebbler, is with you just before we really dig into the

meat of this -- is just -- if I could, just get an update from

you on petitioners' status -- statuses with respect to health

concerns. And also my understanding is, we've had at least one

other removal or deportation in the case, and I think there was

a prior one as well.

So if you could just let me know what everybody's status is

here at the start, that'll be helpful for the Court.

MR. DOEBBLER: Yes. Good morning, Your Honor.

We have six petitioners in this matter. Five of them were

at Pearsall. We [inaudible] one here recently [inaudible] left

the country. And it's unclear whether he took -- well, he was

actually [inaudible] voluntary departure and whether he was

deported. It was after he certainly was leaving the country

and in custody [inaudible] at the time this matter was filed

[inaudible] time that the [inaudible] that the TRO was filed.

Another one of respondents -- the lead respondent, Maria

Guadalupe Reyes Gaona, she has also left the country. Again,

I'm not sure [inaudible] call and verify [inaudible]

immigration lawyer. I'm not sure what the reason was for that

[inaudible] deportation [inaudible] voluntary departure.

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And the first one I mentioned is Andres Ponce Quintero.

And Andres Ponce Quintero and Maria Guadalupe Reyes Gaona are

no longer in the country but were here when the petition was

filed. And [inaudible] other cases that [inaudible]

jurisdiction [inaudible] nevertheless, the country [inaudible]

filed.

And the other four respondents are in the country, still in

detention in Pearsall, in the state detention center, the South

Texas Detention Center -- and Tomas Torres Curiel, Francisco

Carbajal, Marcos Jose Barboza Vallenilla and Jorge Becerra

Ortiz. And as we notified the Court, Marcos Vallenilla had

contracted COVID-19, and we agree he's still alive. We don't

know very much about his condition except that he's been put

into solitary confinement. But we don't know whether that

consists of treatment [inaudible] confinement. 

And he is only -- he was very vulnerable. He has HIV/AIDS,

and he is, because of that [inaudible] both parties are aware,

it is one of the vulnerabilities that the CDC lists as

vulnerabilities. And we don't know how he is being treated.

Unfortunately, I can't give you a lot of updates on the

others except for the brief phonecall that their immigration

attorney had with them, one of our attorneys at RAICES, and he

indicated that there were -- he talked with Tomas and Jorge.

And he indicated that there have been no change [inaudible]

communicated [inaudible] told him that there had been 14 or so

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individuals transferred into the detention center. Four of

them said they had tested positive for COVID-19, and they

hopefully did not have it when they were transferred in. They

indicated they were -- had been tested positive. And all 14

indicated [inaudible] in the detention center, that they are

now [inaudible] additional [inaudible]. 

And Tomas also indicated to us that there are several areas

of the detention center that are completely vacant, and there

are rooms that are not being used, dormitories that are not

being used. When these 20 people came in, they're integrated

into the three or so dormitories that are being used

[inaudible].

THE COURT: Okay. And, Mr. Mueller, do you have any

additional information that you can share about the individual

petitioners and their circumstances?

MR. MUELLER: Yes. So Mr. Quintero was removed. I

don't know exactly the circumstances. He was removed on July

10th, prior to the TRO being filed in the case, after

[inaudible]. And that's -- his removal document is docket 32-1

on the PACER.

Gaona was removed a little over ten days ago. I spoke to

her immigration attorney before she left. And he made the

decision that he was going to withdraw her claims for asylum

and [inaudible] removal since she went through all of her

immigration claims that were [inaudible]. That was, I believe,

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on Friday [inaudible]. And I apologize. The immigration

document I meant to file as an exhibit on Friday and

[inaudible].

THE COURT: Okay.

MR. MUELLER: And then also, Mr. Vallenilla, who has

previously again contracted COVID-19, he has been treated -- is

being treated [inaudible] as the medical records show that I

produced to both the Court and opposing counsel. He was being

treated and his position in terms of in an individual cell is

as a result of that treatment -- received the treatment. And

I've been told -- I haven't received an update in the last few

days. [Inaudible] was not going to be -- his treatment was

going well. He had no symptoms as of the last update I

received, and he was going to be moved out once he tested

negative.

THE COURT: Okay. So, as of now, he's asymptomatic or

largely asymptomatic but under quarantine/solitary?

MR. MUELLER: Yeah. The last update that I had. And

I can get another update [inaudible].

THE COURT: Okay. And then how many -- do we know how

many cases we have at Pearsall?

MR. MUELLER: I have not received an update since the

declaration that I filed.

MR. DOEBBLER: And I think ICE has reported, if I'm

not mistaken, 169 cases as of yesterday. [Inaudible] an

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increase from [inaudible] petition was filed -- when the

original petition was filed and back when the TRO was filed.

THE COURT: Okay. And how many total detainees? Do

you know?

MR. MUELLER: I do not know the total detainees. I

know that they've been [inaudible] percent capacity.

THE COURT: Okay. So, I mean, the next thing to do

is to -- I think is to try to figure out whether and to what

extent discovery is appropriate. I think we can start there.

So, Mr. Doebbler, why don't you just outline -- and I know

you've done this in your motion. And, as I said, I've been

through it. So you can assume that when you're -- when you're

discussing it. Just outline your discovery requests and

explain, you know, how you're -- how you're entitled to that

discovery here. 

And also, I mean, I guess before we do that, given that you

have outstanding discovery requests, which I'm assuming would

inform your -- not only your claims -- ultimate claims but your

claims as they go to getting injunctive relief on -- you know,

early on in the case, whether it's the earlier TRO requests or

now at a preliminary injunction. Do you -- are you asking for

more time to get the discovery before we get into the merits?

Are you comfortable sort of talking about the merits? How do

you -- how would you envision that we ought to proceed

procedurally with, you know, all of the motions and the issues

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that are pending before the Court today?

MR. DOEBBLER: Thank you, Your Honor.

As you know, we raised this initially in a motion for

temporary restraining order. And we deem this to be an urgent

matter. And we believe that before the Court there is enough

information to issue a preliminary injunction. And, of course,

that does not prejudice the final adjudication of the

underlying habeas application. We hope that perhaps the Court

would go forward in that way and that the discovery would be

more related to a habeas and if the Court deems that there is

sufficient information on the record, which petitioner

obviously believes, to issue a preliminary injunction.

THE COURT: Okay. Very good. So that -- I mean, that

tells me that you feel comfortable proceeding today with the

requested injunctive relief based on what we have so far. And

I guess we can play it by ear. If it looks like, as we move

through this, that we need more information, we can kind of

address that as we go.

So maybe that means we can just kind of put a pin in the --

in the discovery because that kind of tees up the motion to

dismiss then -- if, you know, under the appropriate standard

for viewing the pleadings, if we -- if there isn't

jurisdiction, as the government has asserted, or if you haven't

stated a claim on which relief can be granted, then that would

sort of end the inquiry into the other stuff.

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So why don't I -- why don't I flip over to Mr. Mueller and

let him just briefly tee up for us the questions that are

brought up by the motion to dismiss. We'd previously discussed

some of the claims, how they're framed. It's probably

appropriate to just sort of do it fresh again, Mr. Mueller.

I'll probably end up focusing largely in the same place I did

last time, but I may not. So let's just go ahead and do that.

And I'll give you a chance to sort of outline your case and

then Mr. Doebbler an opportunity to mention his responses. And

if at that time it's appropriate to hear from witnesses, we

can, or we can kind of see how it goes.

Why don't you go ahead, Mr. Mueller.

MR. MUELLER: Thank you, Your Honor.

So, fundamentally, as 19 other district courts in the Fifth

Circuit have held, this is a conditions of confinement case,

which is not [inaudible]. Habeas can only grant relief if that

is for release. They can only grant release from unlawful

imprisonment [inaudible].

THE COURT: Is it ever appropriate in habeas to grant

something less than release? So say if you have a habeas --

and, in particular, I mean, a 2241 context; right? You have

somebody who's filed a habeas petition, but what they want is,

you know, additional procedures or an opportunity for more

process. Can you ever grant that relief in habeas, or is it

sort of a binary release or deny -- deny any and all relief?

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MR. MUELLER: I think there may be some place in

habeas where you can do more procedure. But most of our habeas

is a release request, and it's not pertaining to how they're

being held, and it's not to transfer to a different facility.

It is for release.

And so allegations that are -- that deal with the rules,

customs or procedures or threatening conditions of confinement

are properly brought as civil rights actions, not as habeas

actions. And that -- the Southern District of Texas in Eyayu

v. Wolf, one of the recent cases decided October 14th, said

that [inaudible] case, and the Fifth Circuit [inaudible].

And there's -- a case looking at the legal authority to

detain the petitioners. [Inaudible] they didn't do that. They

haven't found that in their petition. And petitioner

[inaudible] release and removed from the country. We go into

[inaudible] the link [inaudible]. And so that issue was no

longer [inaudible]. A challenge to the length of the detention

I think is an area where procedural due process, if it may come

up, that could be raised for something other than release. And

in that case it would be another bond hearing. I've seen some

decisions perhaps where a habeas decision challenging the

length of detention, another bond hearing was [inaudible] with

an immigration judge. And that was for detention that exceeded

two years in that case that I saw. And another one in

detention that exceeded 30 months, which is not the case for

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any of the remaining four.

And so it's not available to -- aid is not available to

review questions unrelated to the cause of detention. And that

causes the legal authority to [inaudible]. And the

jurisdiction of the writ is confined to examination of the

record with a view, determining whether the person's restraint

of liberty [inaudible] relief [inaudible].

And so another recent case, S.R.-Barr, which was decided

just August 26th in the Northern District, quoting the Fifth

Circuit, [inaudible] person [inaudible] convicted to

confinement or prison procedures with a civil rights action in

determination in a prisoner's favor, not automatically

resulting [inaudible]. I think that's one of the issues here

in the conditions of confinement claim is the convictions -- at

what point did they result in release?

And just as ruling in favor of a procedural violation as to

a civil rights action would not necessarily result in release,

something that results in release and a common utilization for

habeas is a calculation of length of offense or legal authority

to hold, and Speedy Trial Act would come into play. Those are

conditional habeas corpus [inaudible].

And as Judge Rodriguez asserted just over a year and a half

ago, claims asserting a [inaudible] while in custody renders

the custody illegal, fall outside the [inaudible].

And that's exactly what we have here. The petitioners are

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arguing that the way they're being treated in custody renders

that custody illegal. And that is a civil rights action that

can be brought under Bivens, obviously 1983 [inaudible], and

that could be brought under [inaudible].

So, fundamentally, the conditions that create injury,

illness or the risk of death, as the Fifth Circuit has said and

repeated in a number of cases, those do not warrant release.

THE COURT: Okay. So let me shift to Mr. Doebbler

just for a response on that point.

So, Mr. Doebbler, is it -- is it -- well, I know you're

going to think it's not fair to [inaudible]. So Mr. Mueller is

characterizing all the claims in this case as challenging

convictions of confinement. I understand, obviously, you

disagree with that.

Can you articulate for me, with respect to each of your

claims asserted in the amended petition, how they're not

challenging conditions of confinement? What's your -- what's

your theory for these claims? And you can -- you can go

through, kind of methodically if you want, you know, each one.

MR. DOEBBLER: Thank you, Your Honor.

Well, as, you know, our [inaudible] claim is a challenge to

the substantive due process violations of petitioners' rights.

And we claim in that instance that the pervasive policies and

practices of the respondents are causing irreparable harm to

the petitioner, and those cannot be changed by trying to remedy

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conditions. Those can only be remedied by a release of

petitioner. Perhaps over time they can change their policies

and practices. It's certainly not designed to protect the

petitioners. So --

THE COURT: Okay. But that's an -- that's an

important point, Mr. Doebbler. So let me make sure. You're

requesting release and nothing less for each of the remaining

petitioners; is that right?

MR. DOEBBLER: That's correct. We believe release is

the only appropriate remedy for each one of these petitioners.

THE COURT: Okay. And so -- all right. Okay. So

carry on now. So we're just kind of going through and

understanding your -- how you frame these claims and explain

how they're not conditions of confinement claims. So please

carry on.

MR. DOEBBLER: Thank you.

Well, the Fifth Amendment substantive due process claim is

based very much on [inaudible], which is a claim where the

Supreme Court found that civil detainees may not be detained in

a punitive manner. These are civil detainees. These are not

detainees that have committed any crime or even [inaudible]

tried for a crime. They are civil detainees, not even pretrial

detainees. They are people that are being held for the sole

purpose of ensuring that they appear for their immigration

hearings.

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And the Supreme Court has long held, going all the way back

to the early cases [inaudible] point to in our pleadings, not

so long ago, but where the Supreme Court has reiterated a

long-standing belief that you cannot hold civil detainees in a

punitive manner.

I think here the real discussion is whether or not this is

punitive. And I believe respondents argue that it's not

punitive because they are conditions that can be changed. It's

our view that these conditions [inaudible] been in place during

the whole time of this pandemic, but, more importantly,

conditions might be evidence of pervasive practices and

policies. And policies and practices that cause irreparable

harm to the petitioner are sufficient to qualify as a punitive

detention of those individuals. And in those instances we

believe then release to be the appropriate remedy.

And we also believe that these punitive actions taken by

the government, again under the Fifth Amendment substantive due

process claim, are not related to a legitimate government

purpose because, although the government may have a purpose to

detain people -- we admit that. They can detain people to

ensure that they turn up for their immigration hearings -- they

cannot do that when the detention causes a threat to the health

or life of those individuals. So we believe that it is

definitely not proportional to the government's interest.

And I can elaborate more, but that is the thrust of our

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substantive due process claim. And we have a procedural due

process claim that I will deal with together with the first

claim, Administrative Procedure Act claim, based on the

arbitrary and capricious standard and the Fifth Amendment

procedural due process as well as the Administrative Procedure

Act [inaudible] -- I'm sorry -- and arbitrary, capricious

standard.

That is based on the fact that these petitioners have asked

for release on the grounds that I just mentioned. They have

said that their detention is illegal because it is cumulative.

And they said it's punitive because of the threat that COVID-19

poses and the inability, because of the policies and practices,

of the respondent to be able to protect them. They have either

received no response or very cursory response, even as we made

[inaudible] in our discovery requests. We requested from

respondents the evidence on which they base [inaudible]. That

has not been forthcoming. So we don't even know why they

received [inaudible].

We would suggest this is not a challenge to parole. They

have made parole applications. Those have been denied, and

that's in the discretion of the administrative authorities to

deny their parole requests. But this is a different request

that they have made. These are separate requests based on the

conditions that they are in and the policies and practices of

the respondents that keep those conditions in place.

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And they have not received an adequate response to those to

even know why they are being detained. And we believe that

procedural due process requires that, and also the APA requires

that because they must make a decision that is not arbitrary

and capricious. They must, in other words, give reasons for

their administrative action.

We've also made a claim under the Rehabilitation Act. And

the Rehabilitation Act is a somewhat unusual use of that claim.

You might note that in a case before the Western District, in

the Abbott [inaudible] Texas Democratic Party, they raised a

similar claim, the petitioners there, where they said that the

inability to social distance and protect oneself from -- in the

context of voting, to protect oneself from contracting

COVID-19, that that constitutes a disability. And we believe

that to be true.

We have argued, furthermore, that putting people in these

conditions when they have not been able to exercise their

rights [inaudible] under these conditions -- as we see, two of

the petitioners have fled the country essentially or have been

taken out of the country, out of their protest, because of the

fact that they -- if they want to exercise their legal rights,

they have to do so by submitting to living conditions and

policies and practices that create those conditions that

threaten their life and health.

We also have a claim based on international law. And that

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claim, Your Honor, goes to the point that one of the key issues

in this matter is whether or not the health of the individuals

is being adequately responded to. The right to health, I don't

think anybody will [inaudible] a right under international law,

and the Secretary of Health and Human Services back in 2012,

appearing before the World Health Assembly [inaudible], said

that the United States supports the right to health. And they

have done so several times since then. 

And we would suggest that that right, which is in the

constitution of more than half the countries in the world and

in the American Declaration of the Rights and Duties of Man, as

we point out in our amended petition, that that right is --

should include how we can [inaudible] this interest of health

that petitioners are claiming.

And if you combine that with our Fifth Amendment claim or

you consider their interest of health in relation to our

substantive due process Fifth Amendment claim, I think that --

and we have argued and we believe very strongly that this is

supported by international law, that there is a requirement

that the government keep them in conditions that would

significantly prevent them from contracting this deadly

disease.

And the government cannot do that because of their policies

and practices. So we believe those policies and practices also

[inaudible] of the right to health and, by implication, right

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to life under public international law.

In summary, Your Honor, those are the claims that the

petitioners have put forward and which we believe are not only

relevant in this case but have been upheld by courts in the

Fifth Circuit. And we cited to the Velasquez -- Vazquez

Barrera case in the Southern District that, on very similar

facts, found that petitioners must be released if the policies

and practices of individuals -- of the respondents do not allow

them to adequately protect themselves from COVID-19. It is a

deadly virus.

And we have cited to the Dada-Witte case from the Western

District of Louisiana in which they have thoroughly, in the

report and recommendation of the magistrate judge in that case,

which was then adopted by the federal court -- where they have

thoroughly gone through the understanding of what constitutes a

conditions claim and what constitutes a claim that goes to the

lawfulness of detention. And I think -- and our claim clearly

falls within the [inaudible] they have understood to be a claim

against the lawfulness of detention.

And, Your Honor, I think that the basic issue, what is

fundamental to this, is understanding not only petitioners' --

I'm sorry -- respondents' policies and practices but also

petitioners' vulnerability because it is the combination of

those two that make these policies and practices inappropriate.

In other words, I think [inaudible] these policies and

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practices might be appropriate for completely healthy

individuals. But the individuals for whom we've brought this

case, which is just a small fraction of the people that are in

the detention of the respondents, these are individuals with

serious vulnerabilities that the CDC has recognized make them

vulnerable and more vulnerable to contracting [inaudible]

suffering from COVID-19. 

And there should be no mistake, and our expert I think can

elaborate on this, even if you get COVID-19 and recover from

it, you can have lasting, serious and -- medical and physical

issues because of it. So the one client who has already

contracted COVID-19 and suffered from that, he already may well

have life-lasting, irreparable harm [inaudible].

But if I may, [inaudible] of our clients to communicate

because there seems to be some confusion about this in relation

to representations made by respondents in some of their motion

[inaudible]. And if the Court will permit, I'll refer to them

by their first name.

The first one, Maria, has PTSD. She has been diagnosed

with PTSD. There's no mention of PTSD in respondent's motion

to dismiss. PTSD is a neurological condition. We have

provided the Court evidence in our amended petition that it is

a neurological condition, and our two experts I believe will

testify to that.

And I should note that our two experts have reviewed the

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medical records of these individuals. The experts that the

respondents put forward in response to the -- our motion for a

temporary restraining order was not a medical expert at all.

There are some individuals with medical training that have

looked at the means to support their motion to dismiss, but

these have not, as far as we understand, reviewed their medical

records [inaudible].

The second petitioner, Tomas, is diabetic, and he has -- he

has not been provided a special diet despite repeated requests

for that. And changes to his medication have resulted in the

improper management of his illness -- or have not resulted, I

should say, in proper management of his illness. So he is

certainly a vulnerable person under the CDC guidelines. He has

diabetes.

Francisco, they claim is not a diabetic, but he is

prediabetic, which means that he is right on the borderline.

And to prevent him from becoming diabetic, he requires a

special diet, which again he is not getting in these

circumstances. His special diet would perhaps help to protect

him from contracting this disease and help to [inaudible] from

falling into a situation where he certainly would have one of

the CDC vulnerabilities, diabetes.

Marcos, who has -- not only has HIV but is also obese --

those are two very serious risk factors, and he contracted

COVID-19. So that is no longer speculative. I think that

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shows that our fear here is a very real fear because this

individual's in a very serious situation, has contracted

COVID-19. And even if he recovers, he would remain extremely

vulnerable to this disease and, if he got it again, would have

even a higher chance of dying from COVID-19.

Finally -- or not finally -- but Jorge, he has also been

diagnosed with PTSD, and he is obese. Obesity and PTSD are

both -- PTSD is a neurologic condition -- are both underlying

conditions. 

And, finally, Andres Ponce Quintero, Andres, he is one of

the petitioners who is no longer in the country, but he has

HIV, another underlying vulnerability listed on the CDC's list,

that could cause him to contract the disease more easily and,

if he contracts it, to have serious consequences, even to die

from the disease.

THE COURT: Okay. So, Mr. Doebbler, what relief can

the Court give to the two individuals, the two petitioners who

have now left the country? If what you've pled and alleged is

that nothing less than release for each of these petitioners is

required, if they're no longer in custody, what's there left

for the Court to do?

MR. DOEBBLER: I think, Your Honor, in the case of

these two individuals, we believe a special remedy. And we

certainly recognize the Court's ability and discretion to

fashion whatever remedy it believes is necessary in this case.

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And we believe, to effect their release appropriately, which

would allow them to adequately pursue their claim to protect

[inaudible] and to ensure that they are able to protect

themselves in doing so -- again, this last example of where

they're being asked to choose between living in a safe and

healthy environment or pursuing legal claims, we believe that,

if their release was ordered, that the respondents should bring

them back to this country and allow them to pursue their claims

within this country because that is what they have denied them

by either deporting them, which we don't know again, or by

encouraging them to leave by putting them into a -- in an

inhumane situation.

We find it very unfortunate if any employee and

particularly a government would be in a position to put people

in such an inhumane situation that they decided to give up

claims that they have under the law and to leave the country to

find protections in countries, which I assume they are going

back to their home countries, where they fled initially from a

threat of persecution and inhumane degrees of treatment.

THE COURT: Okay. So as to those two, I think -- and

please clarify me if I -- if I misstate your position when I

paraphrase it. But as to those two, as I understand it, you're

requesting some sort of order, maybe a declaration, that if

they returned or were to return, they would be eligible for

release pending disposition of their immigration claims?

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MR. DOEBBLER: We think there -- if there was a

declaration declaring that their detention was unlawful, it

would be incumbent upon the government to return them to this

country and ensure that they are allowed to pursue their lawful

claims, whatever they are, in this case immigration claims, and

without being in custody, in a way that they can protect

themselves from the condition that they fear in detention.

THE COURT: Okay. So a declaration that their

detention's unlawful and concomitant requirement that the

government return them to the country to pursue those matters.

Okay. So I think I understand now what you're requesting for

them.

All right. Mr. Mueller, why don't I go back to you, give

you a chance to respond there as now -- we've now heard how

these claims are framed and how petitioners, in their view,

explain that they're not conditions of confinement claims. Do

you have anything to say in reply to that?

MR. MUELLER: Yes, Your Honor. And I think you heard

Mr. Doebbler, in everyone of his claims, refer to the

conditions that they are being held under. Pursuant to due

process, they argue that petitioners' conditions cannot be

[inaudible] punitive. Once again, using the exact word that he

says he's avoiding, these conditions [inaudible].

As to the procedural and the APA, they made, you know,

these -- Mr. Doebbler asserted these are not conditions --

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these are not parole requests, but they're separate requests

based on conditions and policies and procedures of [inaudible].

Once again, this ties right back into conditions of confinement

claims that they are making.

For the Rehabilitation Act he said that the inability to

protect and social distance [inaudible] living conditions that

he says are inhumane. Once again, it ties right back into

conditions of confinement. 

And as to international law, it's a requirement for

conditions that would allow protection from COVID-19.

So I think for every one of these claims, Mr. Doebbler has

articulated that there's conditions -- policies and procedures

are causing conditions and/or the conditions themselves that he

says are the basis for release. And it does not [inaudible]

the authority to detain them, and that is not the creation of

the [inaudible].

As to the individuals that -- also as to international law,

there is not a waiver of sovereign immunity under that

particular [inaudible] pointed to, that -- when Congress has

waived sovereign immunity to allow suit under any of the

international laws that Mr. Doebbler cited.

The Rehabilitation Act, once again, has a jurisdictional

issue. Rehabilitation Act is not appropriate [inaudible] and

does not have a remedy of release as a -- something -- and,

once again, the Rehabilitation Act allows for the -- for not

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the release but for some supportive conditions to change or for

punitive measures, if there is even jurisdiction under the

Rehabilitation Act. And that's a labor code -- as you're

aware, that's a labor code decision. The Rehabilitation Act

does not waive sovereign immunity. The DHS regulations

regarding the Rehabilitation Act provide for an internal

complaint procedure to be made, which respondents have not

done, and they have not alleged that they have done it.

And multiple courts, as I've cited, have held that the

Rehabilitation Act does not apply to federal [inaudible].

And then I think that the reasonable accommodation, if they

were to sue under the Rehabilitation Act, if there was

jurisdiction under the Rehabilitation Act, certainly not a

habeas claim, then the -- it would be -- a reasonable

accommodation would have to be made, not the preferred

accommodation of release. I think that's how we also get

out -- on a substantive ground, out of the Rehabilitation Act,

if there is jurisdiction, if they have alleged a waiver of

sovereign immunity, which they haven't, under the

Rehabilitation Act.

And, finally, under the Rehabilitation Act, they have not

alleged they're being discriminated against because of their

disability. I think that's an important one. They're saying

that they're being treated the same as everybody else and that

there hasn't been an accommodation of their -- they haven't

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alleged that, "This is the accommodation that needs to be made.

We are being treated differently than everyone else." I that's

one of the issues under the Rehabilitation Act as well. 

I think the Rehabilitation Act is essentially a

distraction. I think if that's something that if it were to be

raised in conjunction with a civil rights law case seeking

damages, there would still be jurisdictional claims, but that

would be at least a more appropriate way to press these claims;

that there are -- at the end of the day, they're all civil

rights claims that he's brought under Bivens, if at all.

THE COURT: Okay. And let's just --

MR. MUELLER: [Inaudible].

THE COURT: Let's just stick there just for a second.

So if these can be brought -- or if in your view these are

civil rights sort of 1983/Bivens -- here it would be Bivens

because it's federal detention. If that's the avenue, then is

there -- obviously you can seek injunctive relief under Bivens.

Is there -- is there a difference in what kind of claims can be

brought seeking money damages versus what kind of claims can be

brought seeking injunctive relief in terms of --

MR. MUELLER: Well, the defendants in a Bivens action

would be different than defendants in a [inaudible]. So,

fundamentally, a Bivens action is against individuals --

individual actions [inaudible] bases for a Bivens action.

THE COURT: They wouldn't -- they wouldn't be our

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wardens that we have? Who would the defendants be in a Bivens

action then if these petitioners were contemplating a Bivens

action, if you can -- I don't know if I can ask you that. But

generally speaking.

MR. MUELLER: It would be the people who took

individual actions as to the defendants. I don't want to

speculate as to who those people may be. I don't think that

would be appropriate for me in this case. But I believe it

would be the individuals who took specific actions that the

petitioners can point to that either -- but, again, it goes

back to, what actions were taken? Is it denial of medical

care, because there has been no denial of medical care. In

fact, there's one petitioner who's gotten COVID-19 that has

received treatment, and he's still receiving treatment. And

that -- so I don't see the claim. I don't know what claims

would be brought under Bivens. But it certainly is -- this is

not a situation where release is the only possibility, and

habeas really requires that [inaudible].

THE COURT: Okay. Mr. Doebbler, do you want to be

heard on that?

MR. DOEBBLER: Yes, I would, Your Honor.

I think, as respondents indicated, the Department's counsel

indicates, he's indicated that we raised conditions in every

one of the claims. We do that because conditions are, in fact,

evidence of policies and practices. That is exactly what

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happened -- what was argued and what the judge accepted in

Dada-Witte, is exactly what happened in Vazquez Barrera. They

argued that conditions are evidence of pervasive practices and

policy.

And the fact that he cites conditions in every instance

shows that it's not just an isolated incident that would maybe

give rise to one of these other claims, but that it is a

pervasive policy and practice. It is something that is being

done regularly. And that is, in this case, disadvantageous to

our petitioners.

As we said before, these type of policies and practices

might be adequate for people without vulnerabilities. We are

not asking for wholesale release of everybody in the detention

center. If these policies and practices do not cause

irreparable harm to the individuals, then they would not be

entitled to release. But we believe they do cause irreparable

harm to them because they increase the chance that they will

contract a deadly virus.

Moreover, I'd like to point out, even though I haven't --

there has been discussion in this hearing about other possible

forms of action, no other form of action would be able to

provide us the relief that we are seeking. Certainly, we

cannot bring a 1983 action because this is against a federal

employee, and I think we agree on that with counsel.

And they didn't explain, after a lawsuit, it would be

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extremely difficult for us to bring -- and I would suggest, as

the Court said there, that unless it fits into a [inaudible]

Bivens, two categories that are available, it is not available.

And it would be very difficult for us to be able to fit it into

any of those categories.

The only conceivable play here would possibly be an FTCA

claim against the current respondents. But an FTCA claim

would, first of all, be a claim for damages. But we would have

to wait six months. We cannot ask for equitable relief in an

expedited manner, we're trying to do here.

So we would be left without any remedy. Our clients would

be put in a position where they are forced to live in a

situation where their life and well-being are threatened if

they want to exercise their rights under American law to be

able to claim some sort of protection from very dangerous

persecution and inhumane treatment abroad. And there should

not be the situation, we believe, that they should be left

without any remedy for these rights and told, "Either choose

between your health and well-being and possibly your life and

the exercise of your rights that you have under United States

laws."

And, moreover, there are alternatives to this situation

that even respondents themselves have put forward, and which

they used in many situations. These people could be released

in a manner that allowed them to appear before their

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immigration proceeding with great security. And there are

three points I'd like to make on that.

First, most individuals, detained or not detained, appear

before their immigration proceedings.

Secondly, as respondents pointed out, they could use an

ankle monitor. They usually use check-ins. These are means to

ensure that people appear. And they work in practice.

And, finally, I think proof in the pudding is that one of

our clients, Maria, the lead client in this case, she actually

was prevented from appearing before her immigration

proceedings, and to her detriment, because she was detained.

So detention in that instance, in fact, did not promote the

goal of ensuring attendance at an immigration proceeding. It

was contrary to that goal.

So I think that in this case there is no other alternative

except the action we have brought, because in part -- in large

part that is because the only way for individuals, the

petitioners in this case, to protect themself from the policies

and practices that have been put in place, that cause the

conditions that respondent rightfully refers to repeatedly,

that is release. And that's why we used the habeas application

to try to protect the rights [inaudible].

THE COURT: Okay. Thank you.

Look, I think here's what -- here's what we ought to do.

Let's take a break. Let's take a break till 11:00. That's 20

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minutes. I'm going to just take a look at a couple of things

and then sort of figure out what next steps are. And so we'll

take a break, come back, check in at 11:00 and, at that point,

figure out what we need to do sort of from here going forward.

So, if you can -- is everybody -- is everybody able to do

that? I think we can just sort of put things on hold or just

mute our lines for now until 11:00, and I can stop the

recording.

Does that present an issue for anybody on the call?

MR. DOEBBLER: Your Honor, I don't know if the two

expert witnesses that we have made available, whether they are

able, because they are practicing physicians and [inaudible] at

this time -- a busy time for physicians [inaudible] pandemic.

Maybe we could ask them if they would be available at that

time.

THE COURT: I can. The other -- the other thing I can

do is, I mean, if you're wanting to -- you're wanting to elicit

testimony from them. Do you anticipate how long that would

take, Mr. Doebbler?

MR. DOEBBLER: From our side I think it would take no

more than maybe 15 minutes or a half hour for each one at most.

THE COURT: Okay. For each one.

And the substance of the testimony would be what?

MR. DOEBBLER: It would be to go to the harm that we

are claiming, irreparable harm, and that our petitioners, we

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believe, are suffering.

THE COURT: Okay.

MR. DOEBBLER: And I should let the Court know, of

course, both of these experts have expert declarations on the

record with the Court.

THE COURT: Okay. I am actually fine not hearing from

them. But I don't want to -- I don't want to foreclose you

from putting them on if you'd like to. As you said, there's --

I have their declarations. We also just, I think, have

discussed at quite some length the nature of the harm that's

alleged here and, you know, the extent of it. So that's not --

that's not an issue about which I currently have a lot of

questions.

But if you want to make your -- make a record now at this

proceeding, I won't stand in your way. But I probably can't do

that immediately. So we can -- we could then ask them if they

want to -- if they would be available at 11:00.

What do you -- how do you feel about that, Mr. Doebbler?

Do you really feel like you need to put them on, or are you

comfortable taking a pass for now?

MR. DOEBBLER: I leave that really to the discretion

of the Court. And as the Court has indicated, if we go to the

extent of the harm -- so if the Court would find it helpful, we

would certainly be willing to put them on. I think the Court

thinks that that's repetitive of their declarations, we are --

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[inaudible] discretion.

THE COURT: Okay. Well, I don't think it's necessary

today. I think, if we need to hear from them, we can have them

back, or we could have them file additional declarations. As I

said, that's a topic of -- a narrow slice of the topics of the

cases -- or the issues presented here that I feel pretty

comfortable with.

Mr. Mueller, obviously, does that present any problems for

you? I guess, if Mr. Doebbler is okay with not putting them

on, then it doesn't really do much for you by way of

cross-examination. But were you -- were you anticipating

needing to do that today, or are you okay just giving that a

pass?

MR. MUELLER: No. I'm fine [inaudible] them today.

THE COURT: Okay.

MR. MUELLER: But I [inaudible].

THE COURT: Okay. Well, then I'm okay with excusing

them, Mr. Doebbler, obviously without prejudice to calling them

in again if we need to. So let's just -- let's go ahead and do

that, if you're comfortable with that. And let's just check in

now at -- we'll call it five after 11:00. Okay? We'll see you

then. Thanks.

MR. DOEBBLER: Thank you, Your Honor.

(Recess at 10:44 a.m. until 11:13 a.m.)

THE COURT: So we're back on the record in

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SA:20-CV-00473-FB, Gaona versus U.S. Department of Homeland

Security, et al. We just took a little bit of a break. I've

had an opportunity to think about and digest what we discussed

this morning and also a further opportunity to digest all of

the briefing that I've read, excellent briefing in this case,

prior to -- prior to this hearing.

And so what I want to do now is just sort of talk about

where things go from here. And what that means is, because

this matter's referred to me from Judge Biery, from the

district court, I have jurisdiction to issue a report and

recommendation. That's what I'm going to do in these

circumstances.

With respect to the request for injunctive relief, I'm

going to recommend that that be denied. I want to make clear

that the injury that's alleged here, I think there -- for me,

there is no doubt that it's serious and, as alleged, is

irreparable. But where the injunctive relief claims fall short

for me is in the showing of likelihood of success on the -- on

the ultimate merits.

That dovetails with and matches up with my recommendation

on the motion to dismiss, which is going to be, as these claims

are currently pled, these are conditions of confinement claims

that are not cognizable in habeas or there otherwise isn't a

valid jurisdictional basis for these claims as they're

currently -- as they're currently pled and/or the claims are

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barred based on the relief requested. The claims are barred or

fail under Rule 12(b)(6).

So what I'm going to try to do then for you all is to give

you a report and recommendation that lays out those issues for

you. You will obviously have an opportunity to take issue with

that with Judge Biery. And I feel like that's the best way

that I can serve the interests of the case in getting you all

before the district judge as soon as possible. So I'll hold

off on any discovery at this time based on that recommendation.

But should things change as objections are lodged or as the

case may or may not develop -- and, obviously, we can -- we can

revisit that.

I also want to recognize, well, first, just the excellence

of counsel and also, in particular, the plight that petitioners

find themselves in. I'm not unsympathetic, not only to their

position but also to their legal position, which Mr. Doebbler

has explained on several occasions very ably in explaining how

it feels like there's sort of no pathway to relief.

I'm not sure there's necessarily no pathway to relief, but

it's an extremely difficult path if there is one. And I

recognize that, and I'm sympathetic to that in this context.

But after having really looked over this very carefully and

having spoken to you all several times now and received, as I

said, a couple of rounds of outstanding briefing, those are my

determinations with respect to these claims. And that's the

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recommendation I'll go forward with with Judge Biery.

So it'll take some time for that written report and

recommendation to be drafted. And, obviously, I would just

encourage you all to keep an eye on the case, to keep the Court

up to date if situations evolve or if there are new

developments. But I'll be turning my full attention to getting

that report and recommendation on the docket and entered in the

case so that you all can -- you can move forward from there.

So that's the ruling of the Court.

Mr. Doebbler, is there anything else that we need to

address at this time, sir?

MR. DOEBBLER: (No response).

THE COURT: I think you're still on mute.

MR. DOEBBLER: No, Your Honor. I understand your

ruling, and we believe the Court has indicated that [inaudible]

a written ruling is going to be provided as soon as possible

because we realize that these considerations -- as you've

indicated, our clients are in very serious conditions of risk,

some type of relief for them we would like to try [inaudible]

sooner rather than later. But we appreciate your [inaudible]

condition of that. Thank you.

THE COURT: Of course.

Mr. Mueller, anything from the government?

MR. MUELLER: No, Your Honor. I want to -- I'm not

unsympathetic to petitioners either. [Inaudible].

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THE COURT: Okay. That's appreciated as well. And,

as I said, I really appreciated and enjoyed having you all in

court for -- even virtually for this case. You just did a fine

job of advocacy. This is a very tough case both in terms of

the facts in the situation presented and in terms of the law.

It's just a very complicated and tough area of law as well, I

think, for all of us.

Mr. Mueller, you will -- you promised that you'd file a

document with respect to the departure of one of the

petitioners. Can I still count on you to get that on the

docket for us, just to make the record --

MR. MUELLER: Yes, Your Honor. Yeah. I could -- I

will file it as an attachment to my latest filing where

[inaudible] Friday. And so it'll be the [inaudible].

THE COURT: Okay. Thank you very much.

And then just, as I said before and as Mr. Doebbler has

stressed, I will turn to this and try to get this report and

recommendation before you all and before Judge Biery just

absolutely as soon as I can, you know, keeping in mind just

sort of the complexity of the issues.

So I thank you all again. And, like I said, keep the Court

up to date if anything develops in the case. Okay? Thank you

all very much.

MR. DOEBBLER: Thank you, Your Honor.

THE COURT: The court will be in recess.

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* * *

(11:20 a.m.)

-oOoI, court approved transcriber, certify that the foregoing

is a correct transcript from the electronic sound recording of

the proceedings in the above-entitled matter.

Date: 10/20/2020 /s/ Chris Poage 

Approved Transcriber 

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