Barbecho v. Decker

Background

Seven people detained by Immigration and Customs Enforcement at the Bergen County Jail filed a petition under 28 U.S.C. § 2241 seeking release because of the risks posed by COVID-19. They alleged that the respondents’ deliberate indifference to their serious medical needs violated the Fifth Amendment’s guarantee of substantive due process. The jail had confirmed COVID-19 cases among detainees, inmates, and staff.

The court had previously granted temporary relief for three petitioners but denied it for Felipe Diaz Presbot, Fredy Olaya Lugo, Jose Molina, and Oliver de Jesus Garcia Alejo. The four then filed an amended petition with additional allegations about their medical conditions and brought the second motion for a temporary restraining order and preliminary injunction addressed in this order.

Medical risks and conditions of detention

The court found on the updated record that the four petitioners had serious medical needs that could lead to death, deterioration, or extreme pain. The evidence included stage 2 hypertension that was not being treated for Diaz, hypertension for which Molina had not received a diagnosis or counseling, extensive smoking histories for Diaz, Olaya Lugo, and Garcia Alejo, and asthma and breathing problems for Garcia Alejo. Medical professionals reviewed records and concluded that the conditions placed the petitioners at higher risk of severe illness from COVID-19.

The court also found that the medical needs remained unmet. Although the jail had increased sanitation measures, high-risk detainees continued to be housed with the general population in 10-by-7-foot cells for 23 hours a day and slept in bunk beds. The court concluded that these conditions made the recommended social distancing impossible.

Deliberate indifference

For purposes of the temporary restraining order, the court concluded that the petitioners had shown a likelihood of success on their claim that the respondents were deliberately indifferent to their medical needs. The court found that Immigration and Customs Enforcement knew about the petitioners’ chronic medical conditions and the relevant public-health guidance, yet had not taken sufficient action in response to the serious risks.

The court stated that this conduct likely violated the Fifth Amendment’s substantive due process guarantee. It also explained that the petitioners’ continued detention posed an imminent risk to their health, safety, and lives. The court noted that reported staff infections and limited evidence of testing showed that the virus remained a present threat at the jail.

Temporary restraining order factors

The court found that the petitioners faced irreparable harm, meaning harm that could not be adequately repaired later, both from the alleged constitutional violations and from the health risks of continued detention. It further found that the balance of the equities and the public interest favored release because protecting constitutional rights and public health outweighed the government’s interest in continued detention.

The respondents did not expressly argue that the petitioners posed a flight risk or danger to the community, but they submitted evidence of prior criminal records. The court concluded that any such concerns could be addressed through reasonable release conditions.

Release pending the habeas case

The court also ruled that the petitioners could be released on bail while their habeas claims were pending. It applied the Second Circuit’s rule that courts have inherent authority to grant bail to people properly before them when the habeas claims are substantial and extraordinary circumstances make release necessary for the habeas remedy to be effective. The court found both requirements satisfied because the petitioners had substantial deliberate-indifference claims, were likely to succeed, and faced serious COVID-19 risks if they remained detained.

The court held that this authority applied to both people detained under 8 U.S.C. § 1226(a) and a person detained under § 1226(c). It rejected the respondents’ argument that § 1226(c) removed the court’s power to grant bail. The court therefore ordered release in the alternative on bail pending final resolution of the habeas claims.

Disposition

The court GRANTED the petitioners’ motion for a temporary restraining order and ordered Diaz, Olaya Lugo, Molina, and Garcia Alejo IMMEDIATELY RELEASED on reasonable conditions. The parties were ordered to meet and confer and propose bond conditions by 5 p.m. on May 15, 2020. The temporary restraining order would expire on May 29, 2020, and the parties were ordered to propose a briefing schedule concerning whether it should become a preliminary injunction. The order resolved docket entry 37.