Martinez Franco v. Jennings

Background

Francisco Javier Martinez Franco asked for a temporary restraining order, an emergency court order, requiring his release from Immigration and Customs Enforcement detention or, alternatively, requiring a bond hearing before an immigration judge. He argued that detention during the COVID-19 pandemic violated the Fifth Amendment because the conditions increased his risk of infection. He also argued that he was entitled to a bond hearing under Casas-Castrillon v. Department of Homeland Security or the Fifth Amendment's procedural due process protections.

Martinez Franco had been detained since September 27, 2017. An immigration judge denied his request to cancel removal, and the Board of Immigration Appeals affirmed, entering a final removal order on August 27, 2018. His petition for review remained pending in the Ninth Circuit, and removal was stayed. An immigration judge denied his March 16, 2020 request for a bond hearing, concluding that she lacked authority to set bond under Jennings v. Rodriguez. Martinez Franco remained detained at the Mesa Verde Detention Facility.

He said that he could not reliably stay six feet from others, avoid shared surfaces, or sanitize properly, and that new detainees and staff entered the facility from outside. The government submitted evidence that Mesa Verde screened people for COVID-19 exposure and symptoms, isolated people who had been exposed or tested positive, increased sanitation, restricted visits, and screened staff and vendors. The facility had no suspected or reported COVID-19 cases, and its medical unit stated that Martinez Franco was not at high risk and did not meet the Centers for Disease Control and Prevention's criteria for severe illness.

Substantive Due Process and Requested Release

The court held that Martinez Franco had standing to challenge the conditions of his detention. Standing is the legal requirement that a plaintiff show a concrete or imminent injury that a court order could likely remedy. The court concluded that the risk of serious consequences from COVID-19 was not merely speculative, even though Mesa Verde had no recorded case and was taking preventive measures. It also concluded that release would reduce his infection risk because social distancing was possible outside detention but impossible in detention.

The court nevertheless rejected his claim that the detention conditions violated substantive due process. For a civil detainee, conditions violate the Fifth Amendment when they amount to punishment, including when they are excessive compared with their nonpunitive purpose. The court emphasized that Martinez Franco did not identify an underlying medical condition or other vulnerability placing him at heightened risk of serious COVID-19 illness. Given that fact, the lack of a recorded case at Mesa Verde, and the facility's preventive measures, the court found that his detention was not disproportionate to the government's nonpunitive purposes.

The court also rejected his argument that his treatment was unconstitutional because criminal detainees had been released in some circumstances. It found no evidence that criminal detainees had been released indiscriminately without considering vulnerability to COVID-19, flight risk, or dangerousness. The court further stated that, even if social-distancing conditions were unconstitutional, an order requiring improved conditions—not individual release—would be the more appropriate remedy.

Bond Hearing

The court granted the bond-hearing request under Casas-Castrillon. It explained that detention under 8 U.S.C. § 1226(c) is mandatory only until the Board of Immigration Appeals issues a final removal order. After that order, detention is governed by 8 U.S.C. § 1226(a), under which detention is discretionary and a noncitizen is entitled to a bond hearing, even when removal is stayed while a petition for review is pending.

Because Martinez Franco had received a final removal order, the court found that he was likely to succeed on his claim that Casas-Castrillon entitled him to a bond hearing. The court did not need to decide his alternative argument that the Fifth Amendment independently required a hearing. It also found that the remaining requirements for emergency relief were satisfied: continued detention without a bond hearing could cause irreparable harm, the balance of hardships favored a hearing, and the public interest did not weigh against one.

Disposition

The court granted Martinez Franco's request for a temporary restraining order ordering a bond hearing. It required that an immigration judge provide the hearing within 15 days after the order was filed. The court declined to order his release based on the alleged COVID-19 risk.