Barbecho v. Decker

Background

Seven civil immigration detainees held in Immigration and Customs Enforcement custody at the Bergen County Jail sought release through a petition challenging their detention. They alleged that officials were deliberately indifferent—meaning they recklessly failed to take reasonable care in response to a known health risk—to their serious medical needs during the COVID-19 pandemic. They also sought a temporary restraining order, an emergency court order providing temporary relief, and a preliminary injunction requiring their release subject to reasonable conditions.

The petitioners were Vallejo, Barbecho, Lis, Diaz, Olaya Lugo, Molina, and Garcia Alejo. The opinion describes Vallejo as having circulatory diseases, severe obesity, and several mental-health diagnoses; Diaz as having high blood pressure; Olaya Lugo and Molina as pre-diabetic; Barbecho as having a history of tuberculosis and reduced lung capacity; Garcia Alejo as a smoker; and Lis as a smoker with a recent history of pneumonia. The petitioners argued that their conditions placed them at heightened risk of severe illness or death from COVID-19.

The court deferred deciding whether to sever the petitioners’ claims into separate cases. It proceeded with the emergency motion because of the urgent health concerns and the need for an efficient decision.

Legal standard and analysis

Because the petitioners were civil detainees rather than people convicted of crimes, the court analyzed their medical-care claims under the Fifth Amendment’s Due Process Clause, not the Eighth Amendment. The court applied a two-part test: whether the detainee had a serious unmet medical need and whether officials acted with deliberate indifference to that need.

The court concluded that Vallejo, Barbecho, and Lis satisfied the serious-medical-need requirement because their conditions fell within current Centers for Disease Control and Prevention guidance identifying people at higher risk of severe COVID-19 illness. The court found that their needs remained unmet. Although officials had taken general measures at the jail—including screening staff and vendors, increasing cleaning, providing soap and sanitizer, and limiting some detainee interactions—the record showed no measures specifically addressing high-risk detainees who had been reassessed but remained detained. Officials had not isolated those detainees, created special protocols for them or staff who interacted with them, or provided them with personal protective equipment.

The court therefore found that Vallejo, Barbecho, and Lis were likely to succeed on their claim that officials’ conduct violated substantive due process. The court also found that these petitioners faced irreparable harm because of the imminent risk of severe illness or death if they contracted COVID-19 and the increased risk of infection in a detention setting. It concluded that the balance of the equities and the public interest favored their release, including because reducing the jail population could reduce risks inside the facility and in the surrounding community.

For Diaz, Olaya Lugo, Molina, and Garcia Alejo, the court said the record was less clear about whether their conditions met the serious-medical-needs standard. The court did not decide that issue because it found no evidence that officials knew or should have known that these conditions posed an excessive risk of severe COVID-19 illness. The court noted that these conditions did not appear in the cited Centers for Disease Control and Prevention guidance as conditions placing people at higher risk of severe illness.

The court also noted that the petitioners had asserted a broader claim that officials failed to provide adequate protection during the COVID-19 outbreak. It stated that, even assuming that claim had been adequately pleaded, the contested evidence about the jail’s precautions prevented a finding that the petitioners were likely to succeed on that claim at this stage.

Ruling and remedy

Barbecho v. Decker, decided by Judge Alison J. Nathan, granted in part and denied in part the petitioners’ motion for a temporary restraining order. The court granted the motion as to Vallejo, Barbecho, and Lis and ordered officials to immediately release them on reasonable conditions. It denied the motion as to Diaz, Olaya Lugo, Molina, and Garcia Alejo.

The court relied on its authority to order temporary release of an immigration detainee when the petition raises substantial claims and extraordinary circumstances make release necessary to make the requested remedy effective. It concluded that the serious health risks and imminent COVID-19 danger constituted extraordinary circumstances for Vallejo, Barbecho, and Lis. The parties were ordered to meet and propose reasonable bond conditions by noon on April 15, 2020. The temporary restraining order was set to expire on April 28, 2020, and officials were required to show cause by April 20, 2020, why it should not be converted into a preliminary injunction. The order resolved the motion identified as Docket No. 3.