Barbecho v. Decker

Background

Josue Vallejo, Milton Barbecho, and Denis Lis were previously detained by Immigration and Customs Enforcement at the Bergen County Jail. They filed a petition under 28 U.S.C. § 2241, a statute allowing a person to challenge unlawful detention, alleging that the respondents’ deliberate indifference to their serious medical needs violated the Fifth Amendment’s Due Process Clause. They sought release because their medical conditions placed them at higher risk for severe illness from COVID-19.

The court had previously issued a temporary restraining order requiring the petitioners’ immediate release and then considered whether to convert that order into a preliminary injunction. Four other petitioners were joined in the original petition, but their claims were not before the court on this motion because the court had previously denied them temporary relief.

Severance

The respondents asked the court to sever, or separate, Vallejo, Barbecho, and Lis’s claims into individual habeas actions. The court declined to do so. It concluded that the petitioners had been detained at the same facility and presented nearly identical legal and factual questions, including whether the respondents adequately protected them from COVID-19, whether the respondents were deliberately indifferent to their medical needs, and whether release was justified. The court also found that hearing the claims together promoted judicial economy and allowed an urgent issue to be decided more quickly.

Preliminary-injunction standard

A preliminary injunction is an order providing temporary relief before the case is finally decided. The petitioners had to show a likelihood of success on the merits, a likelihood of irreparable harm without relief, that the balance of equities favored them, and that an injunction served the public interest. Because the requested injunction required the respondents to take a positive action—allowing the petitioners to remain released—the court applied the heightened standard for a mandatory injunction.

Likelihood of success on the merits

The court applied a two-part test for the petitioners’ deliberate-indifference claim. First, they had to show serious, unmet medical needs. Second, they had to show that the respondents acted with deliberate indifference, meaning that they intentionally imposed the challenged condition or recklessly failed to take reasonable care despite knowing, or having reason to know, that the condition created an excessive health or safety risk.

The court found that the petitioners satisfied the first part because the parties did not dispute that their conditions placed them at higher risk for severe illness from COVID-19. The court concluded that they also showed a likelihood of success on the second part. Although masks were provided to detainees and staff and general cleaning had increased, high-risk detainees were not isolated, were housed with the general population, remained in small cells with bunk beds, and could not maintain the recommended distance from cellmates. The record also did not show special safety or hygiene measures for high-risk detainees or that frequently touched surfaces were cleaned between uses.

The court therefore concluded that the petitioners were likely to prove that the respondents’ actions amounted to deliberate indifference to their medical needs and violated the Fifth Amendment’s substantive due-process protection.

Irreparable harm

The court found two forms of irreparable harm: harm from the alleged constitutional violations and the imminent risk to the petitioners’ health, safety, and lives if they were returned to the Bergen County Jail. Although the number of suspected COVID-19 cases among detainees and inmates had decreased, the court found that the risk remained imminent because the respondents had not shown that testing was widely available or used to determine the outbreak’s scope. The court also noted an increase in infections among facility staff.

Balance of equities and public interest

Because the opposing party included the government, the court considered the balance of equities and public interest together. It concluded that these factors favored the petitioners and that any government interest in redetaining them was outweighed by the public interest in their continued release during the COVID-19 pandemic.

Disposition

The court GRANTED the petitioners’ motion and CONVERTED the temporary restraining order covering Vallejo, Barbecho, and Lis into a preliminary injunction. The three petitioners were to remain released, subject to conditions set by the court. The parties were ordered to meet and confer and propose reasonable release conditions for each petitioner by May 13, 2020.

In the alternative, the court stated that even if the petitioners had not satisfied all preliminary-injunction requirements, it would still order them to remain released on bail pending final resolution of their habeas claims, based on the court’s earlier release order.