Basank v. Decker

• Decision Date: 26 March 2020
• Docket Number: 20 Civ. 2518 (AT)
• Parties: 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, Petitioner, v. Thomas DECKER, in His Official Capacity as Director of the New York Field Office of U.S. Immigrations & Customs Enforcement; and Chad Wolf, in His Official Capacity as Acting Secretary, U.S. Department of Homeland Security, Respondents.
• Court: U.S. District Court — Southern District of New York

449 F.Supp.3d 205

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, Petitioner,

v.Thomas DECKER, in His Official Capacity as Director of the New York Field Office of U.S. Immigrations & Customs Enforcement; and Chad Wolf, in His Official Capacity as Acting Secretary, U.S. Department of Homeland Security, Respondents.

20 Civ. 2518 (AT)

United States District Court, S.D. New York.

Signed March 26, 2020

Alexandra Lynn Lampert, Hannah McCrea, Mary Sameera Van Houten Harper, Brooke Menschel, Brooklyn Defender Services, Brooklyn, NY, for Petitioner.

Michael James Byars, U.S. Attorney's Office, SDNY (Chambers Street), New York, NY, for Respondents.

MEMORANDUM AND ORDER

ANALISA TORRES, District Judge:

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, are currently detained by Immigration and Customs Enforcement ("ICE") in county jails where cases of COVID-19 have been identified. Petition ¶ 1, ECF No. 9.

Last night after 11:00 p.m., Petitioners filed an amended petition for a writ of habeas corpus under 28 U.S.C. § 2241, requesting release from ICE custody because of the public health crisis posed by COVID-19. See Petition. Petitioners also submitted an application for a temporary restraining order ("TRO") pursuant to Rule 65 of the Federal Rules of Civil Procedure, seeking an order (1) releasing them on their own recognizance, subject to reasonable and appropriate conditions, and (2) restraining Respondents, Thomas Decker, in his official capacity as Director of the New York Field Office of ICE, and Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings. TRO at 1, ECF No. 6.

For the reasons stated below, the TRO is GRANTED, and (1) Respondents, and the Hudson, Bergen, and Essex County Correctional Facilities, are ORDERED to immediately release Petitioners today on their own recognizance, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes during the pendency of their immigration proceedings.

BACKGROUND

Petitioners were detained by ICE in connection with removal proceedings pending at the Varick Street Immigration Court. They are housed in New Jersey county jails where either detainees or staff have tested positive for COVID-19. TRO at 3–4. Specifically, Basank, Benitez Pineda, and Mazariegos are detained at the Hudson County Correctional Facility ("Hudson County Jail"). Petition ¶¶ 5, 7, 11. Barrera Carrerro, Hernandez Balbuena, Legall, Martinez, and Menendez are detained at the Bergen County Correctional Facility ("Bergen County Jail"). Id. ¶¶ 6, 8, 9, 10, 12. Pena and Picazo Nicolas are detained at the Essex County Correctional Facility ("Essex County Jail"). Id. ¶¶ 13–14.¹

Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of death or serious injury in immigration detention if exposed to COVID-19. Basank is 54 years old and has a lengthy history of smoking. Id. ¶ 5. Barrera Carrerro, age 39, has underlying health conditions, including obesity

, respiratory problems, a history of gastrointestinal problems, and colorectal bleeding. Id. ¶ 6. Benitez Pineda is 44, with pulmonary issues and a history of hospitalization for severe pneumonia. Id. ¶ 7. Hernandez Balbuena suffers from diabetes and diabetes-related complications. Id. ¶ 8. Legall is 33 years old, and suffers from respiratory problems, including asthma. Id. ¶ 9. Martinez, age 56, suffers from severe heart disease, and has a history of hospitalization for congestive heart failure, severe aortic valvular insufficiency, and acute systolic failure, requiring immediate heart valve replacement surgery. Id. ¶ 10. Mazariegos is 44, and suffers from high blood pressure and pre-diabetes. Id. ¶ 11. Menendez is 31 years old and suffers from chronic asthma. Id. ¶ 12. At 36, Pena is asthmatic and has chronic obstructive pulmonary disease ("COPD"), which require inhalers and other medical treatment. Id. ¶ 13. Picazo Nicolas, age 40, suffers from Type II diabetes and morbid obesity. Id. ¶ 14.

On March 16, 2020, Hannah McCrea, an attorney with Brooklyn Defender Services, emailed Assistant United States Attorney Michael Byars, requesting that ICE release particularly vulnerable individuals, including Petitioners Basank, Legall, Martinez, and Picazo Nicolas. Harper Decl. ¶ 2, ECF No. 6-1. On March 18, 2020, AUSA Byars responded that he did "not have a timeframe for ICE's response." Id. ¶ 3. On March 24, 2020, Alexandra Lampert, also a lawyer with Brooklyn Defender Services, emailed Byars to request the release of additional individuals identified as particularly vulnerable, including Barrera Carrerro, Benitez Pineda, Hernandez Balbuena, Mazariegos, Menendez, and Pena. Id. ¶ 4. On March 25, 2020, Lampert again emailed Byars and informed him of Petitioners' intent to seek a temporary restraining order in the Southern District of New York, with the amended petition attached, thus putting Respondents on notice of Petitioners' serious medical conditions and their request for injunctive relief. Id. ¶¶ 5, 7.

At 12:30 p.m. today, the Court held a telephonic hearing on Petitioners' request for a TRO.

DISCUSSION

I. Legal Standard

"A plaintiff seeking a temporary restraining order must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Natera, Inc. v. Bio-Reference Labs., Inc. , No. 16 Civ. 9514, 2016 WL 7192106, at *2 (S.D.N.Y. Dec. 10, 2016) (internal quotation marks, citation, and alteration omitted).

"It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction." Andino v. Fischer , 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). "The showing of irreparable harm is perhaps the single most important prerequisite for a preliminary injunction." CF 135 Flat LLC v. Triadou SPY N.A. , No. 15 Civ. 5345, 2016 WL 2349111, at *1 (S.D.N.Y. May 3, 2016) (internal quotation marks, citation, and alteration omitted). Under this prong, the movant "must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages." NAACP v. Town of E. Haven , 70 F.3d 219, 224 (2d Cir. 1995). To satisfy this requirement, a movant must demonstrate "that he would suffer irreparable harm if the TRO does not issue." Andino , 555 F. Supp. 2d at 419. "The district court has wide discretion in determining whether to grant a preliminary injunction." Almontaser v. N.Y.C. Dep't of Educ. , 519 F.3d 505, 508 (2d Cir. 2008) (internal quotation marks and citation omitted) (per curiam).

II. Analysis

A. Irreparable Harm

In the Second Circuit, a "showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction." Faiveley Transport Malmo AB v. Wabtec Corp. , 559 F.3d 110, 118 (2d Cir. 2009) (internal quotation marks and citations omitted). That harm must be "actual and imminent" rather than speculative. Id.

Petitioners have shown irreparable injury by establishing the risk of harm to their health and to their constitutional rights.

1. Risk of Death

On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. Petition ¶ 26. At that time, there were more than 118,000 cases in 114 countries, and 4,291 people had died. Id. ¶ 27. Merely two weeks later, there have been at least 458,927 cases identified in 172 countries and at least 20,807 people have died. Id. New York and its surrounding areas have become one of the global epicenters of the outbreak. Id. ¶ 35. Petitioners are held at detention facilities located in northern New Jersey. See id. ¶¶ 5–14.

As of March 26, 2020, New Jersey has 4,407 confirmed cases of COVID-19—the second highest number of reported cases by any state after New York. Niko Kommenda and Pablo Gutierrez, Coronavirus map of the US: latest cases state by state , The Guardian (Mar. 26, 2020), https://www.theguardian.com/world/ng-interactive/2020/mar/26/coronavirus-map-of-the-us-latest-cases-state-by-state. New Jersey also has the fourth most COVID-19 related deaths in the country. Id. The three counties where the jails are located—Bergen, Essex, and Hudson counties—comprise one-third of the confirmed cases of COVID-19 in New Jersey, with Bergen County reporting 819 positive results, Essex reporting 381 positives, and Hudson 260. Petition ¶ 36. The jails are no exceptions. Each of the jails where a Petitioner is being housed has reported confirmed cases of COVID-19. Id. ¶ 41. This includes two detainees and one correctional officer in the Hudson County Jail; one detainee at the Bergen County Jail; and a "superior officer" at the Essex County Jail. Id.

The nature of detention facilities makes exposure and spread of the virus particularly harmful. Jaimie Meyer, M.D., M.S., who has worked extensively on infectious disease treatment and prevention in the context of jails and prisons, recently submitted a declaration in this district noting that the risk of COVID-19 to people held in New York-area detention centers, including the Hudson, Bergen, and Essex County Jails, "is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected." Meyer Decl. ¶ 7, Velesaca v. Wolf , 20 Civ. 1803 (S.D.N.Y. Feb. 28, 2020), ECF No. 42.

Moreover, medical...