Basank v. Decker

Background

Ten petitioners—Vasif “Vincent” Basank, Freddy Barrera Carrerro, Manuel Benitez Pineda, Miguel Angel Hernandez Balbuena, Latoya Legall, Carlos Martinez, Estanlig Mazariegos, Manuel Menendez, Antar Andres Pena, and Isidro Picazo Nicolas—were detained by Immigration and Customs Enforcement in connection with pending removal proceedings. They were held in the Hudson County Correctional Facility, Bergen County Correctional Facility, or Essex County Correctional Facility in New Jersey. Each facility had reported confirmed COVID-19 cases among detainees or staff.

The petitioners alleged that they faced an imminent risk of serious injury or death because of their medical conditions. The opinion identifies conditions including asthma, diabetes, heart disease, hypertension, obesity, respiratory problems, chronic obstructive pulmonary disease, and prior serious medical problems. Before filing, their lawyers asked the government to release particularly vulnerable people and warned that the petitioners intended to seek emergency relief.

The petitioners filed an amended application under 28 U.S.C. § 2241, a procedure used to challenge unlawful federal custody, and sought a temporary restraining order under Rule 65 of the Federal Rules of Civil Procedure. They requested release on their own recognizance, subject to reasonable conditions, and an order preventing their re-arrest for civil immigration detention while their immigration proceedings continued.

Legal standard

To obtain a temporary restraining order, the petitioners had to show a likelihood of success on the merits, likely irreparable harm without immediate relief, that the balance of harms favored them, and that an order served the public interest. The court treated this standard as the same one used for a preliminary injunction.

Court’s analysis

The court found irreparable harm because the petitioners faced a serious risk to their health and constitutional rights. The court noted that COVID-19 was spreading rapidly, that all three detention facilities had reported cases, and that detention settings made exposure and transmission more likely. It also took judicial notice of public-health information identifying older people and people with conditions such as heart disease, lung disease, asthma, obesity, and diabetes as being at greater risk of severe illness.

The court also concluded that the petitioners were likely to succeed on their due process claim. The Fifth Amendment’s Due Process Clause protects people in the United States, including noncitizens. The court explained that immigration detainees may show unconstitutional detention conditions by proving that a government official knew or should have known that the conditions created an excessive health risk and failed to take appropriate action.

The government represented that officials and the facilities were screening people, isolating symptomatic detainees, providing soap and hand sanitizer, and increasing cleaning. But the government could not say that the facilities could keep detainees six feet apart or identify measures specifically protecting high-risk detainees. The court found those measures insufficient and concluded that keeping vulnerable petitioners in the facilities without effective distancing or individualized protections posed an unreasonable risk of serious future health damage and demonstrated deliberate indifference.

The court did not reach the petitioners’ separate argument that their conditions were unconstitutional because the detention was punitive.

The court found that the balance of harms and the public interest also favored release. The government could not identify a specific reason for continuing to detain the petitioners, and the petitioners’ counsel committed to helping ensure their attendance at immigration hearings. The court also rejected the argument that mandatory detention under 8 U.S.C. § 1226(c) prevented release of petitioners Martinez and Pena, explaining that courts may order release when detention violates due process.

Ruling

Judge Analisa Torres granted the temporary restraining order. The court ordered the respondents and the Hudson, Bergen, and Essex County Correctional Facilities to immediately release all petitioners on their own recognizance. It restrained the respondents from arresting the petitioners for civil immigration detention during the pendency of their immigration proceedings.

The order stated that the temporary restraining order would expire on April 9, 2020, at 6:30 p.m. It required the respondents to show cause by April 2 why the order should not be converted to a preliminary injunction, and permitted the petitioners to respond by April 7.