Almeida v. Barr, CASE NO. C20-0490RSM-MLP

• Decision Date: 06 April 2020
• Docket Number: CASE NO. C20-0490RSM-MLP
• Citation: 452 F.Supp.3d 978
• Parties: Claudia Fabiola ALMEIDA, Petitioner, v. William P. BARR, Respondent.
• Court: U.S. District Court — Western District of Washington

452 F.Supp.3d 978

Claudia Fabiola ALMEIDA, Petitioner,

v.William P. BARR, Respondent.

CASE NO. C20-0490RSM-MLP

United States District Court, W.D. Washington, at Seattle.

Signed April 6, 2020

Matt Adams, Aaron Korthuis, Yessenia Medrano, Northwest Immigrant Rights Project, Seattle, WA, for Petitioner.

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Before the court is Petitioner Claudia Fabiola Almeida's emergency motion for immediate relief, which the court construes as a motion for a temporary restraining order ("TRO"). (See Mot. (Dkt. # 2).) Specifically, Ms. Almeida seeks immediate release from custody in the Tacoma Northwest Detention Center ("the NWDC") due to the COVID-19 pandemic, which she alleges renders detained individuals, like herself, "vulnerable to serious health complications and or [sic] death." (See id. at 2.) Ms. Almeida originally filed her motion in the Ninth Circuit Court of Appeals as part of her 8 U.S.C. § 1252(a)(1) petition for review of the Board of Immigration Appeals' ("the Board") final order of removal. See Almeida v. Barr , No. 19-72254 (9th Cir.), Dkt. # 20 (filed March 25, 2020). The Ninth Circuit construed Ms. Almeida's emergency motion as a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and transferred her motion to this court for "prompt[ ]" consideration. See id. , Dkt. # 24 (filed March 31, 2020); (see also 9th Cir. Transfer Order (Dkt. # 1-1) at 2)). Respondent William P. Barr ("the Attorney General") opposes the motion. (See Resp. (Dkt. # 3).) The court has considered the motion, all submissions filed in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. Being fully advised, the court DENIES Ms. Almeida's motion.

II. BACKGROUND

A. Ms. Almeida's Immigration Proceedings and Appeal to the Ninth Circuit

Ms. Almeida is a citizen of Mexico, who became a lawful permanent resident of the United States on January 20, 1990. (Administrative Record ("AR") at 1014.)¹ Subsequently, she was convicted of two forgery offenses and possession of a controlled substance, methamphetamine. (Id. at 820, 1014.)

On February 6, 2015, Ms. Almeida sought admission to the United States as lawful permanent resident. (Id. ) However, at the time of her application for admission, she was found to be in possession of 1.88 kilograms of methamphetamine concealed in her car. (Id. at 820, 823, 828-32, 1014.) She was subsequently convicted in United States District Court for smuggling goods in violation of 18 U.S.C. § 545. (Id. at 824, 1014.) The court sentenced her to 36 months' imprisonment. (Id. at 825.)

Due to her criminal record, the United States Department of Homeland Security ("DHS") initiated removal proceedings against Ms. Almeida and filed a Notice to Appear in Immigration Court. (Id. at 1012-14.) The Notice to Appear charged Ms. Almeida with three counts of removability, including (1) as a noncitizen convicted of a crime involving moral turpitude, see 8 U.S.C. § 1182(a)(2)(A)(i)(I) ; (2) as a noncitizen convicted of a controlled substance offense, see 8 U.S.C. § 1182(a)(2)(A)(i)(II) ; and (3) as a noncitizen the Attorney General has reason to believe was involved in the illicit trafficking of a controlled substance, see 8 U.S.C. § 1182(a)(2)(C)(i). (AR at 1014.)

On August 8, 2018, Ms. Almeida, through counsel, conceded that she was removable as a noncitizen convicted of a crime involving moral turpitude and a controlled substance offense, but denied that she was removable as an illicit trafficker of a controlled substance. (Id. at 141.) However, on November 7, 2018, Ms. Almeida filed a motion to amend her pleadings, arguing that she was no longer removable as a noncitizen convicted of a controlled substance offense based on the Ninth Circuit's initial 2018 decision in Lorenzo v. Sessions , 902 F.3d 930, 932 (9th Cir. 2018), opinion withdrawn on denial of reh'g sub nom. Lorenzo v. Whitaker , 913 F.3d 930 (9th Cir. 2019) (" Lorenzo II "), and opinion superseded on denial of reh'g sub nom. Lorenzo v. Whitaker , 752 F. App'x 482 (9th Cir. 2019) (" Lorenzo III "). (AR at 942-45.) The immigration judge denied Ms. Almeida's motion to withdraw her concession. (Id. at 175-77.) Ms. Almeida then sought asylum and related relief and protection from removal, as well as cancellation of removal for certain permanent residents. (Id. at 142, 166-67, 788-99, 803-04.)

On February 7, 2019, the immigration judge issued a written decision finding Ms. Almeida removable pursuant to all charges of removability and ineligible for relief and protection from removal. (Id. at 49-83.) The immigration judge denied Ms. Almeida's request for cancellation of removal as a matter of discretion and found Ms. Almeida statutorily barred from asylum and withholding of removal because her conviction for smuggled goods constitutes a particularly serious crime. (Id. at 70-74 (citing 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii) ).) The immigration judge held in the alternative that Ms. Almeida did not establish eligibility for relief and protection from removal on the merits of her claims. (Id. at 74-81.) Finally, the immigration judge denied Ms. Almeida's request for a continuance. (Id. at 81-82.)

On July 29, 2019, the Board dismissed Ms. Almeida's appeal of the immigration judge's decision. (Id. at 3-7.) First, the Board held that it was unnecessary to reach Ms. Almeida's challenge to the controlled substance ground of removability because she conceded removability as a noncitizen who committed a crime involving moral turpitude. (Id. at 3.) Further, the Board noted that the Ninth Circuit's decision in Lorenzo , on which Ms. Almeida relied to challenge her removability, was withdrawn. (Id. at 3-4 (citing Lorenzo II , 913 F.3d 930 ; Lorenzo III , 752 F. App'x 482 ).) Second, the Board agreed with the immigration judge's denial of the cancellation of removal as a matter of discretion. (Id. at 4-5.) Third, the Board upheld the immigration judge's denial of asylum and withholding of removal based on the particularly serious crime bar. (Id. at 5-7.) Finally, the Board held that the immigration judge's denial of Ms. Almeida's request for deferral of removal under the Convention Against Torture was not clearly erroneous because Ms. Almeida was never tortured in the past and her fear of harm was speculative. (Id. at 7.)

On September 3, 2019, Ms. Almeida filed a petition for review with the Ninth Circuit and a motion for a stay of removal. See Almeida v. Barr , No. 19-72254 (9th Cir.) Dkt. # 1 (filed Sept. 3, 2019). The Attorney General opposes Ms. Almeida's petition. See id. , Dkt. # 9 (filed Oct. 29, 2019). On November 5, 2019, Ms. Almeida filed a motion to hold her petition in abeyance while she applied for U and T nonimmigrant visas. See id. , Dkt. # 11. The Attorney General also opposes the abeyance motion. See id. , Dkt. # 12. Ms. Almeida's petition in the Ninth Circuit is presently in the Ninth Circuit's mediation program. (See Mot. at 4-5; Resp. at 6.) She is currently in DHS custody and detained at the NWDC pursuant to 8 U.S.C. § 1225(b)(2)(A). She has been detained at the NWDC since August 16, 2018. (Mot. at 4.)

B. Ms. Almeida's Emergency Motion for Immediate Release

On March 23, 2020, Ms. Almeida filed her present emergency motion for release from custody in the Ninth Circuit. (See Mot.) The Ninth Circuit panel assigned to Ms. Almeida's appeal construed Ms. Almeida's motion as a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and transferred it to this court.² (See Transfer Order at 2.)

In her present motion, Ms. Almeida, who is 40 years old, asserts that her underlying health conditions, including obesity, unspecified, and impaired glucose tolerance (prediabetes ) elevate her risk of becoming severely ill if she contracts COVID-19. (See Mot. at 5 (citing Att. E³ ).) She provides her NWDC patient summary as evidence of these underlying health conditions. (See id. )

To bolster her motion, Ms. Almeida also relies on a letter from two physicians, Dr. Scott A. Allen, MD, FACP, and Dr. Josiah Rich, MS, MPH, who both serve as medical subject matter experts for DHS's Office of Civil Rights and Civil Liberties ("CRCL"), which the physicians sent to the Chairpersons and Ranking Members of the House Committee on Homeland Security, the House Committee on Oversight and Reform, and the Senate Committee on Homeland Security and Governmental Affairs. (Id. at 7-8 (citing Att. D⁴ ).) In their letter, the physicians state that they are "gravely concerned about the need to implement immediate and effective mitigation strategies to slow the spread of the coronavirus and resulting infections of COVID-19." (Id. , Att. D at 2.) The physicians note that there have been clusters of COVID-19 identified in "congregant settings" in Chinese and Iranian prisons and that an inmate and officer have reportedly tested positive for the virus at New York's Rikers Island. (Id. ) They also note recent reporting indicating that immigrant detainees at ICE's Aurora facility are in isolation for possible exposure to coronavirus that a member of ICE's medical staff at a private detention center in New Jersey has tested positive for coronavirus. (Id. ) The physicians do not provide any statements or information concerning conditions at the NWDC. (See generally id. )

C. Conditions at the NWDC & Additional Safety Precautions

In his response to Ms. Almeida's motion, the Attorney General submits the declaration of Drew H. Bostock, who is the Officer in Charge ("OIC") with DHS, ICE, Enforcement and Removal Operations ("ERO") in the Seattle Field Office ("ERO Seattle"). (Bostock Decl. (Dkt. # 3) ¶ 1.)⁵ Although Ms. Almeida challenges the sufficiency of measures implemented at the NWDC and described in OIC Bostock's declaration, she does not challenge the accuracy of his declaration. (See Reply (Dkt. # 4) at 8-9).) OIC Bostock attests to the...