Ahn v. Barr

Background

Choung Woong Ahn, Salvador Moncada Hernandez, and Yao Xeng Saeturn were in the custody of Immigration and Customs Enforcement at the Mesa Verde ICE Processing Facility. They sought release under 28 U.S.C. § 2241, a federal law allowing certain challenges to custody, arguing that their continued civil immigration detention violated the Fifth Amendment’s Due Process Clause. They alleged that their medical vulnerability and the risks of COVID-19 infection at Mesa Verde made their detention an unconstitutional punishment.

The order decided the petitioners’ application for a temporary restraining order, which sought release while the underlying petition was pending. Because the government had notice of and opposed the application, the court applied the standards used for a preliminary injunction. Those standards generally require a showing of likely success on the merits, likely irreparable harm without relief, favorable balancing of the hardships, and consistency with the public interest. Because release would require affirmative action and change the existing situation, the request was for a mandatory injunction, requiring the petitioners to show that the law and facts clearly favored release.

Venue and standing

The court denied the government’s objection to venue. The petitioners alleged that their legal custodian, the Acting Field Director of the San Francisco ICE Field Office, was located in the district and that the field office was responsible for ICE’s detention operations at Mesa Verde. The court concluded that venue was proper because any relief would be directed to that field office.

The court also rejected the government’s challenge to Article III standing. It found that the petitioners had alleged a sufficiently concrete and particularized injury. Their allegations included that Ahn was 74 and had diabetes, coronary artery disease, and lung cancer; Moncada had chronic liver disease; and Saeturn was 65 and had hypertension and cerebrovascular disease. They also alleged that conditions at Mesa Verde prevented effective social distancing and other preventive measures. The court concluded that release could remedy the alleged exposure to those conditions and that the petitioners could seek this type of relief under Section 2241.

Evidence and analysis

The court emphasized that adequate standing allegations did not establish entitlement to immediate release. The record did not show that the facts clearly favored a mandatory injunction. None of the petitioners had submitted a declaration, and the court found the declarations from counsel thin and vague. For example, counsel’s declaration concerning Ahn was uncertain about basic facts, including his age and country of origin. The declaration concerning Saeturn also stated that he was hard of hearing but did not explain what measures addressed that issue. A declaration from Moncada’s sister focused on mental-health issues that did not appear to be the basis for the claimed COVID-19 vulnerability.

The court also found the medical evidence inadequate. Dr. Samuel Dickman’s declaration largely tracked the deficient counsel declarations. The medical records reviewed for Moncada consisted of three pages of cursory notes that did not identify conditions known to be COVID-19 risk factors. The court also criticized speculative statements about Ahn’s health, including an assertion that he was virtually certain to have coronary artery disease despite the doctor’s not having examined him or reviewed his medical records.

The court found that the evidence concerning Mesa Verde’s conditions was similarly insufficient. A counsel declaration was based on an in-person visit on March 13, 2020, early in the pandemic response, and did not necessarily reflect conditions nearly a month later. The petitioners made general assertions about infection risks in custodial institutions, but the court found those assertions insufficiently connected to the conditions the petitioners actually faced at that time. The court also considered the public-interest factor, including the serious offenses for which the petitioners had been convicted and an immigration judge’s finding that the Department of Homeland Security had shown Moncada would pose a danger to people or property in the United States if released.

Disposition

The court concluded that the record did not permit an order requiring immediate release. Judge Donato denied the petitioners’ temporary-restraining-order motion without prejudice to renewal if circumstances warranted. The opinion did not decide the underlying habeas petition on the merits.