Opinion
CIVIL ACTION NO. 5:20-CV-108
2020-09-29
Mariana NDUDZI, Petitioner, v. Orlando PEREZ, et al., Respondents.
Brian E. Casey, Pro Hac Vice, Barnes & Thornburg LLP, South Bend, IN, Charles Roth, National Immigrant Justice Center, Chicago, IL, Curtis Francis Doebbler, Refugee and Immigrant Center for Education and Legal Service, San Antonio, TX, for petitioner. Hector Carlos Ramirez, United States Attorney's Office Southern District of Texas, Laredo, TX, for Respondents.
Brian E. Casey, Pro Hac Vice, Barnes & Thornburg LLP, South Bend, IN, Charles Roth, National Immigrant Justice Center, Chicago, IL, Curtis Francis Doebbler, Refugee and Immigrant Center for Education and Legal Service, San Antonio, TX, for petitioner.
Hector Carlos Ramirez, United States Attorney's Office Southern District of Texas, Laredo, TX, for Respondents.
MEMORANDUM AND ORDER
Diana Saldaña, United States District Judge
Before the Court is Petitioner Mariana Ndudzi's ("Petitioner") Emergency Petition for a Writ of Habeas Corpus and Declaratory Relief (Dkt. 1), Respondents' Motion to Dismiss (Dkt. No. 12), and Petitioner's Motion for an Expedited Hearing or Ruling (Dkt. 16). Petitioner is an immigration detainee at the Laredo Detention Center in Laredo, Texas and claims that she risks contracting Covid–19 due to the Detention Center's failure to implement adequate preventative measures for medically vulnerable detainees such as herself. (Dkt. 1 at 4.) To safeguard her Fifth Amendment Due Process rights, Petitioner moves the Court to order her release. Id. Considering the petition, the motion to dismiss, the record, and the applicable law, the Court DENIES Petitioner's request and dismisses the petition without prejudice.
Page numbers refer to the numbers automatically generated by the Electronic Court Filing System (ECF), not to the page numbers generated by Parties. Similarly, exhibit citations refer to the exhibit numbers automatically generated by ECF.
Background
A. Relevant Procedural History
On July 7, 2020, Petitioner filed the petition for a writ of habeas corpus against Respondents, claiming that she risks contracting COVID-19 due to the Detention Center's alleged actions and inactions. (Dkt. 1.) On August 12, 2020, Respondents filed their motion to dismiss (Dkt. 12), and Petitioner issued her response in opposition to Respondent's motion to dismiss on August 24, 2020. (Dkt. 13.) On September 8, 2020, Petitioner entered a Notice of Positive COVID-19 cases in the Laredo Processing Center. (Dkt. 14.) Ten days later, on September 18, 2020, Petitioner filed a Motion to Set Hearing or for Expedited Rulings due to her impending deportation. (Dkt. 16.)
B. Factual Background
Petitioner, an Angolan asylum-seeker fleeing state-sponsored gender violence, has been in Immigration and Customs Enforcement ("ICE") detention for seventeen months. She asserts three claims: (1) a violation of substantive due process under the Fifth Amendment due to the fact and conditions of her confinement; (2) a violation of procedural due process under the Fifth Amendment due to the Government's failure to provide adequate medical care; and (3) a violation of her Fifth Amendment Procedural Due Process rights due to her unconstitutionally prolonged detention. (Dkt. 1 at 59–62.) She seeks the issuance of a writ of habeas corpus and an order for her immediate release from the Detention Center. (Id. at 64.) In addition, she seeks a declaration that Respondents' continued immigration detention of individuals at increased risk for severe illness, including persons of any age with underlying medical conditions that may increase the risk of infection from COVID-19, violates due process. (Id. ) She asks the Court to require ICE to release the individual facility plans mandated under its detention standards that address the management of infectious and communicable diseases. (Id. ) If the Court decides that immediate release is not appropriate, she seeks release under an alternative to detention, such as an ankle monitor or a declaration that Respondents' conduct is unconstitutional. (Id. at 64–65.)
Principally, Petitioner asserts that she is at a substantial risk of suffering serious harm on account of the Detention Center's failure to adequately mitigate transmission of the novel coronavirus that causes COVID-19. (Dkt. 1 at 6–7.) In particular, Petitioner alleges that the Detention Center has not informed her or other detainees of the pandemic or best practices to prevent transmission; declined to adopt social distancing measures or mandated that all employees wear personal protective equipment, like gloves and masks; failed to provide detainees with adequate amounts of such equipment and cleaning supplies; and failed to adequately sanitize common areas and objects. (Id. at 6.) According to Petitioner, these lackluster attempts to prevent the spread of the novel coronavirus complement the Detention Center's conservative efforts to screen detainees for symptoms, and its inconsistent application of quarantining protocols for symptomatic detainees. (See id. ) Indeed, Petitioner claims that Detention Center staff did not test detainees for the novel coronavirus until one week before she filed her petition. (Id. )
As a result, Petitioner argues that testing rates lag behind the likely rate of transmission and the number of confirmed positive cases likely under-represent the total number of actual cases. (Id. at 7.) And, according to Petitioner, these failings significantly exacerbate her own medical vulnerability: Petitioner suffers from chronic hepatitis B—a condition that increases her risk of liver disease and, she claims, elevates the likelihood that she will become severely ill if she contracts the virus. (Id. at 8.) Rather than play the odds in the Detention Center, Petitioner seeks release to a church-run hospitality house in San Antonio where, she claims, she will be able to observe standard public health precautions. (Id. )
For their part, Respondents argue that the Court lacks subject matter jurisdiction over Petitioner's claims involving the conditions of her confinement and that, in any event, she failed to state a claim upon which the Court may award relief. (Dkt. 12 at 6.)
In support of their jurisdictional objections, Respondents assert that civil rights actions under 42 U.S.C. § 1983 serve as the appropriate vehicle to challenge the conditions of confinement. By contrast, habeas petitions enable prisoners or detainees to challenge the fact of confinement. (Id. at 7.) Respondents contend that Petitioner is not challenging the cause, legality, duration, or fact of her detention. Instead, Respondents note that Petitioner generally challenges the conditions of her confinement. (Id. )
Respondents further argue that, as is standard for civil rights cases, a favorable determination for Petitioner on her conditions-of-confinement claim would not result in her release but an improvement in the complained-of conditions. (Id. at 16.) Moreover, they assert that converting Petitioner's civil rights claim to a habeas request on account that she seeks release from confinement would collapse the Fifth Circuit's clear distinction between civil rights and habeas remedies. (See id. at 15–16.) Accordingly, Respondents argue that the instant habeas petition should be dismissed for lack of jurisdiction.
Respondents also argue that Petitioner's third claim — that her detention is unconstitutionally prolonged — is premature. (See id. at 19.) Under Respondents' reading of the relevant statutes, case law, and the procedural history of Petitioner's immigration case, the Government enjoys a presumptively valid six-month period to detain Petitioner after her removal order became final. (Id. ) In that vein, Respondents argue that the six-month clock began ticking on July 31, 2020, when the Board of Immigration Appeals ordered Petitioner removed. (Id. at 20.)
In response, Petitioner appears to advance two principal points. Rejecting Respondents' characterization that her health concerns amount to objections to her "conditions of confinement," Petitioner first argues that COVID-19 issues affecting immigration detainees present cognizable habeas claims because they render her confinement itself illegal, especially since immigrants, unlike criminal prisoners, are detained pursuant to civil authority. (See Dkt. No. 13 at 9–11). Second, she claims to challenge the fact of her detention: Because she had been detained for over a year — and beyond a presumptively valid six-month detainment period — her detention was unconstitutionally prolonged before the BIA entered its removal order. (Id. at 15.)
The issues being fully briefed, Petitioner's claim is ripe for ruling. For the reasons stated below, the Court DENIES Petitioner's Emergency Petition for a Writ of Habeas Corpus and Declaratory Relief (Dkt. 1) and GRANTS the Government's Motion to Dismiss (Dkt. 12.)
Legal Standards and Analysis
28 U.S.C. § 2241 provides a district court with jurisdiction over petitions for habeas corpus where a petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). See INS v. St. Cyr , 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (recognizing 28 U.S.C. § 2241 as a jurisdictional statute). Pursuant to this statute, the Supreme Court has recognized that a non-citizen may raise "statutory and constitutional challenges to post-removal-period detention" in a habeas corpus proceeding under § 2241. Zadvydas v. Davis , 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Both the Supreme Court and the Fifth Circuit have left as an open question "the reach of the writ with respect to claims of unlawful conditions of confinement or treatment." Boumediene v. Bush , 553 U.S. 723, 797, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) ; Poree v. Collins , 866 F.3d 235, 243–44 (5th Cir. 2017) (declining to "address whether habeas is available only for fact or duration claims"). See also Robinson v. Sherrod , 631 F.3d 839, 840 (7th Cir. 2011) (noting that "the Supreme Court [has] left the door open a crack for prisoners to use habeas corpus to challenge a condition of confinement"). In this vein, other courts have issued the writ in response to claims related to COVID-19. See, e.g., Dada v. Witte , No. 1:20-CV-00458, 2020 WL 2614616, at *1 (W.D. La. May 22, 2020) (indicating that courts analyzing claims related to COVID-19 "examined the likelihood of success on the merits based on whether the civil confinement had become punitive"); Juan E. M. v. Decker , No. CV 20-4594 (KM), 458 F.Supp.3d 244, 253 (D.N.J. May 7, 2020) (agreeing "with the line of cases that have permitted conditions of confinement claims to proceed through a habeas petition"). Yet, despite the recent case law allowing challenges to conditions of confinement to proceed through a habeas petition, it nonetheless remains clear that the writ offers a remedy, in the form of release, when the underlying cause of detention lacks footing in law. See Department of Homeland Security v. Thuraissigiam , ––– U.S. ––––, 140 S.Ct. 1959, 1963, 207 L.Ed.2d 427 (2020) ("Habeas has traditionally been a means to secure release from unlawful detention") (emphasis in the original); Boumediene , 553 U.S. at 779–80, 128 S.Ct. 2229 (noting that the writ is "efficacious ... in all manners of illegal confinement") (quoting WILLIAM BLACKSTONE , COMMENTARIES 129 (6th ed. 1775)); Preiser v. Rodriguez , 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ("It is clear ... from the common-law history of the writ ... that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is the secure release from illegal custody"); McNally v. Hill , 293 U.S. 131, 136, 55 S.Ct. 24, 79 L.Ed. 238 (1934) (explaining that habeas corpus permits courts to test "the legality of the detention"); Pierre v. United States , 525 F.2d 933, 935–36 (5th Cir. 1976) ("Simply stated, habeas is not available to review questions unrelated to the cause of detention.").
See also Thakker v. Doll , No. 1:20-CV-480, 456 F.Supp.3d 647, 654 (M.D. Pa. Apr. 27, 2020) ("It is clear that federal courts, including the Third Circuit, have condoned conditions of confinement challenges through habeas."), appeal filed, No. 20-1906 (Apr. 28, 2020); Vazquez Barrera v. Wolf , No. 4:20-CV-1241, 455 F.Supp.3d 330, 336 (S.D. Tex. Apr. 17, 2020) (noting that "[t]he Court need not decide today whether conditions-of-confinement cases that do not challenge the ‘fact or duration’ of detention properly sound in habeas" while further noting that "Plaintiffs seek immediate release from detention because there are no conditions of confinement that are sufficient to prevent irreparable constitutional injury given the facts presented in their individual cases"); Bent v. Barr , 445 F.Supp.3d 408, 413 (N.D. Cal. 2020) (finding that because detainee argues "that his continued detention during the COVID-19 pandemic violates his substantive due process rights," he "does not solely challenge the conditions of his confinement" and habeas is the appropriate vehicle); Malam v. Adducci , No. 20-10829, 452 F.Supp.3d 643, 650 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (permitting habeas claim under "§ 2241 because [detainee] seeks immediate release from confinement as a result of there being no conditions of confinement sufficient to prevent irreparable constitutional injury under the facts of her case").
Civil rights suits, by contrast, afford detainees and prisoners a vehicle to challenge the conditions of their confinement while leaving the core authority legitimating their detention in the first instance undisturbed. See, e.g., Bucklew v. Precythe , ––– U.S. ––––, 139 S.Ct. 1112, 1128, 203 L.Ed.2d 521 (2019) (deciding a § 1983 case presenting an Eighth Amendment challenge to conditions of confinement); Youngberg v. Romeo , 457 U.S. 307, 324, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (explaining that the involuntarily civilly committed enjoy a constitutionally protected interest in "reasonably nonrestrictive confinement conditions" that is cognizable under § 1983 actions); Ziglar v. Abbasi , ––– U.S. ––––, 137 S.Ct. 1843, 1848–49, 198 L.Ed.2d 290 (2017) (deciding a Bivens case concerning conditions of confinement related to immigrant detention). As the Supreme Court explained in Preiser v. Rodriguez , § 1983 claims are the appropriate actions for state prisoners levying "constitutional challenges to the conditions of [ ] prison life." 411 U.S. at 499, 93 S.Ct. 1827. However, should a petitioner seek to pierce the veil of the authority sanctioning her confinement, habeas enables her to do so by challenging its "fact or length." See id. These cases make plain that habeas actions are available to litigants who challenge the legal basis of their confinement and seek release from detention, whereas civil rights actions are most appropriate where litigants challenge the legality of a certain condition to confinement and do not — indeed, cannot — seek release from detention. See Poree , 866 F.3d at 243 (concluding that "the instructive principle" in determining whether to bring a habeas or civil rights claim is that "challenges to the conditions of confinement are properly brought" under civil rights remedies and "fact or duration" claims are properly brought under habeas).
This Court is not alone in holding as much. See Archilla v. Witte , No. 4:20-CV-00596-RDP-JHE, 2020 WL 2513648, at *13 (N.D. Ala. May 15, 2020) (because habeas requires "(1) a challenge to the fact or duration of physical imprisonment, and (2) a request for a determination that the petitioner is entitled to immediate or a speedier release" conditions of confinement claims are not cognizable); Matos v. Lopez Vega , No. 20-CIV-60784-RAR, ––– F.Supp.3d ––––, –––– – ––––, 2020 WL 2298775, at *5-6 (S.D. Fla. May 6, 2020) ("[I]t appears that Petitioners are in fact challenging the conditions of their confinement because absent those conditions, their claim would not even exist."); A.S.M. v. Donahue , No. 7:20-CV-62 (CDL), 2020 WL 1847158, at *1 (M.D. Ga. Apr. 10, 2020) (noting that the court lacks jurisdiction to hear a conditions of confinement challenge in a habeas claim); Sacal-Micha v. Longoria , No. 1:20-CV-37, 2020 WL 1815691, at *5-6 & n.6 (S.D. Tex. Apr. 9, 2020) (finding that immigration detainee cannot rely on habeas corpus for conditions-of-confinement claim based upon COVID-19).
Petitioner urges this Court to find that the conditions of her confinement render the fact of her detention, itself, unlawful. (Dkt. 13 at 9.) That is, Petitioner claims that the conditions she complains of are not, in fact, the harm she objects to. (Id. ) Instead, they are merely "indicators of the targeted harm: the confinement itself." (Id. ) Ostensibly, Petitioner makes the same argument that another district court accepted when it found that "Petitioner's conditions of confinement claim directly bears on not just his conditions of confinement, but whether the fact of his confinement is constitutional in light of the conditions caused by the COVID-19 pandemic." Favi v. Kolitwenzew , No. 20-CV-2087, 2020 WL 2114566, at *7 (C.D. Ill. May 4, 2020) (emphasis in the original).
Such arguments do not suffice for the purposes of habeas. In our system, the Government must have a legal basis to deprive someone of liberty. See Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491 ; Mathews v. Eldridge , 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ("Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment."). If, in fact, the deprivation of an individual's bodily liberty lacks legal basis, it is de facto unlawful. Habeas, therefore, restores liberty to those individuals whom the Government lacked the authority to imprison or detain in the first instance. See Boumediene , 553 U.S. at 779, 128 S.Ct. 2229 ("We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to "the erroneous application or interpretation" of relevant law.")
Thus, contrary to the Central District of Illinois' decision in Favi v. Kolitwenzew , 2020 WL 2114566, habeas would only be available in Petitioner's case if the Government lacked authority to detain her in the first instance. In this case, the Immigration Judge presiding over Petitioner's asylum hearing found that she was a member of a Tier III terrorist organization and ordered her removed. (Dkt. 12, Ex. 5 at 18.) The Board of Immigration Appeals confirmed this and issued a final order of removal. (Dkt. No. 12, Ex. 6.) Pursuant to 8 U.S.C. § 1231(a)(1)(A), the Government enjoys a 90-day period to remove aliens ordered removed. During that time, the statute mandates that aliens ordered removed be detained. Id. § (a)(2). Under Zadvydas , Petitioner may file a § 2241 petition if, after six months from the date the removal order became final, she is still detained. See Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491. Until then, petitioner cannot use the conditions of her confinement to nullify the exercise of authority undergirding her detention in the first place.
To the extent that Petitioner instead claims that her detention prior to the Board of Immigration Appeals' issuance of a final removal order was unconstitutionally prolonged, see (Dkt. 1 at 53), her arguments are both untimely and unavailing. As an initial matter, the record is unclear as to when the Government first discovered Petitioner's connection to a terrorist organization. The Immigration Judge's decision suggests the information first came to light after Petitioner's credible fear interview. (See Dkt. No. 12, Ex. 5 at 20.) Under 8 U.S.C. § 1226(c)(1)(B), the Government "shall" detain any alien who is "deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D)" of the title. 8 U.S.C. § 1226(c)(1)(B). In turn, 8 U.S.C. § 1227(B) provides that "[a]ny alien who is described in subparagraph (B) or (F) of section 1182(a)(3) of [the] title is deportable." Id. Though the Immigration Judge's adjudication of Petitioner's asylum request places her squarely within sub-section B, (see Dkt. 12, Ex. 5 at 18–23), the record does not reflect under what authority the Government detained Petitioner in the fifteen months preceding her hearing.
But, because the finality of the removal order shifts the statutory basis of Petitioner's detention, see 8 U.S.C. § 1101(a)(47)(B)(i) ; Agyei-Kodie v. Holder , 418 Fed. App'x 317, 318 (5th Cir. 2011) ("The removal order became administratively final ... when the [BIA] dismissed the appeal of the [IJ's] decision"), Petitioner's claims are improperly presented. As discussed above, the Government no longer need rely on that grant of authority to detain Petitioner because a different statutory provision—namely, 8 U.S.C. § 1231(a) —presently governs her detention.
It does not appear that Petitioner challenged the Government's authority to detain her prior to the Board of Immigration Appeals' issuance of a final removal order.
The Court therefore declines Petitioner's invitation to retroactively examine the propriety of statutory authority no longer actively exercised. The Court does, however, note that both of the cases that Petitioner cites for her proposition that § 1226(c)'s mandate "gives way when an individual's continued detention is in violation" of the Constitution, (Dkt. No. 1 at 50), are easily distinguishable from the facts present here. Malam v. Adducci , for instance, involved a Petitioner convicted of larceny and retail fraud. 452 F.Supp.3d at 648 n.3. And, while the Western District of New York did not cite to the specific offense that one of the petitioners in Ramsundar v. Wolf committed to justify his detention under § 1226(c), there is no indication that the crime involved terrorist-related activity. See Ramsundar v. Wolf , 20-CV-402, 2020 WL 1809677, at *4, n. 5 (W.D.N.Y. Apr. 9, 2020). Nor do other cases sitting at the intersection of habeas relief and § 1226(c)'s mandatory detention provision feature comparable facts. See, e.g., Basank v. Decker , 449 F.Supp.3d 205, 215, n. 4 (S.D.N.Y. 2020) (involving a petitioner convicted of trafficking controlled substances and misdemeanor marijuana convictions); Linares Martinez v. Decker , 18-CV-6527 (JMF), 2018 WL 5023946, *1 (S.D.N.Y. Oct. 17, 2018) (involving a petitioner charged with, but not convicted of, sexual abuse of a minor); Hernandez v. Decker , 18-CV-5026 (ALC), 2018 WL 3579108, *1 (S.D.N.Y. July 25, 2018) (involving a petitioner with five, non-violent criminal convictions including possession of a forged instrument and promoting prostitution); Sajous v. Decker , 18-CV-2447 (AJN), 2018 WL 2357266, *3 (S.D.N.Y. May 23, 2018) (involving a petitioner convicted of aggravated unlicensed operation of a motor vehicle, attempted possession of stolen property, attempted possession of a controlled substance, criminal trespass, and other petty offenses).
Certainly, neither the statute nor these cases give the Government license to detain Petitioner indefinitely. See Demore v. Kim , 538 U.S. 510, 510–17, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (holding Congress "may require that [noncitizens held under § 1226(c) ] be detained for the brief period necessary for their removal proceedings"); Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491 ("[W]here detention's goal is no longer practically attainable, detention no longer bears a reasonable relation to the purpose for which the individual was committed."). They, in fact, describe the circumstances under which detention may not be "necessary." However, the Court need not elucidate the precise conditions of when detention is no longer necessary to confirm that non-precedential cases involving non-terrorism-related offenses do not persuasively bear upon Petitioner's claims today.
Conclusion
Therefore, in light of the foregoing, Petitioner's Emergency Petition for a Writ of Habeas Corpus and Declaratory Relief (Dkt. 1) is hereby DENIED and the Government's Motion to Dismiss (Dkt. 12) is hereby GRANTED. Petitioner's Motion for an Expedited Hearing or Ruling (Dkt. 16) is hereby DENIED AS MOOT. The Clerk of Court is DIRECTED to terminate the case.
IT IS SO ORDERED.