Basri v. Barr, Civil Action No. 1:20-cv-00940-DDD

• Decision Date: 11 May 2020
• Docket Number: Civil Action No. 1:20-cv-00940-DDD
• Citation: 469 F.Supp.3d 1063
• Parties: Khalid BASRI, Plaintiff, v. William BARR, Matthew T. Albence, Chad Wolf, John Fabbricatore, and Johnny Choate, Defendants.
• Court: U.S. Court of Appeals — Seventh Circuit

469 F.Supp.3d 1063

Khalid BASRI, Plaintiff,

v.William BARR, Matthew T. Albence, Chad Wolf, John Fabbricatore, and Johnny Choate, Defendants.

Civil Action No. 1:20-cv-00940-DDD

United States District Court, D. Colorado.

Signed May 11, 2020

Jeffrey Dean Joseph, Shana D. Velez, Aaron C. Hall, Joseph & Hall P.C., Aurora, CO, for Plaintiff.

Timothy Bart Jafek, U.S. Attorney's Office, Denver, CO, for Defendants.

ORDER

Daniel D. Domenico, Judge

Before the Court are Plaintiff Khalid Basri's petition for a writ of habeas corpus (Doc. 1, the "Petition") and motion for temporary restraining order (Doc. 6, the "Motion"). Both the Petition and the Motion seek his immediate release from the Aurora Contract Detention Facility (the "Detention Facility") where he is being held in pre-removal immigration detention. He argues that the Detention Facility has failed to prevent the spread of the novel coronavirus that causes COVID-19, thus violating his constitutional rights. In the alternative, he argues that he was made to improperly bear the burden of proof at his pre-removal bond hearing under 8 U.S.C. § 1226(a). Neither argument entitles him to relief. The Court lacks jurisdiction over his first claim because a conditions-of-confinement claim is not cognizable in a petition for a writ of habeas corpus. And the Constitution does not require the government to prove detention is necessary in immigration bond hearings. The Court thus DENIES Mr. Basri's Petition (Doc. 1) and Motion (Doc. 6).

BACKGROUND

Mr. Basri is a citizen of Morocco who is currently detained by Immigration Customs and Enforcement ("ICE") at the Detention Facility in Aurora. Doc. 1, ¶ 9. In late February 2020, Mr. Basri was arrested in Pitkin County for assaulting his wife. Doc. 18 at 2. ICE took custody of Mr. Basri on March 3, 2020, and began removal proceedings against him the same day. Id. Mr. Basri is being detained under 8 U.S.C. § 1226(a). He has had two bond hearings, at which he bore the burden to prove he was not a flight risk or a danger to the community. Doc. 1, ¶ 7; see also In re Adeniji , 22 I. & N. Dec. 1102, 1116 (B.I.A. 1999) (allocating burden of proof to alien in pre-removal bond hearing).

Mr. Basri filed his petition for writ of habeas corpus on April 3, 2020. Doc. 1. He alleges, in short, that the Detention Facility has taken inadequate steps to prevent the spread of the novel coronavirus that causes COVID-19, and the only possible way to ameliorate the threat posed by its spread is his immediate release. Mr. Basri filed an emergency motion for a temporary restraining order under Federal Rule of Civil Procedure 65 on April 6, 2020. Doc. 6. Because the Court found the standard for issuing a TRO without notice had not been met, see Fed. R. Civ. P. 65(b)(1), the Court instead ordered the Defendants William Barr, Matthew T. Albence, Chad Wolf, John Fabbricatore, and Johnny Choate (together, "Defendants") to show cause why the Petition should not be granted or why a preliminary injunction should not be granted. Doc. 10.

DISCUSSION

I. Request for Immediate Release Based on COVID-19 Pandemic

Habeas corpus review is available under Section 2241 if an immigration detainee is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) ; see also Zadvydas v. Davis , 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (immigration detainees may bring Section 2241(c)(3) petitions). The writ is one of the essential protections afforded in a free society, dating back to at least the Magna Carta. It provides for release from arbitrary detention. But release from custody is also an extreme remedy, so Congress has been careful to circumscribe its use by the courts.

Most fundamentally, and relevant here, a petition for writ of habeas corpus is only available to challenge the fact or duration of confinement—not the conditions of confinement. When the claim is not that detaining the petitioner is illegal under any circumstances, but that it is illegal under present conditions, the proper vehicle for relief is 42 U.S.C. § 1983 (for claims against state actors), or Bivens v. Six Unknown Named Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (for claims, like Mr. Basri's, against federal actors). Standifer v. Ledezma , 653 F.3d 1276, 1280 (10th Cir. 2011). This distinction isn't empty formalism. The writ, while essential to our political system, is a drastic remedy. Permitting conditions-of-confinement claims to be asserted in petitions for writs of habeas corpus would greatly enlarge the writ and fundamentally change its purpose. As the Tenth Circuit has explained,

Though the Supreme Court has not set the precise boundaries of habeas actions, it has distinguished between habeas actions and those challenging conditions of confinement. This court has "endorsed this distinction." In this circuit, a prisoner who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinement, must do so through an application for habeas corpus. In contrast, a prisoner who challenges the conditions of his confinement must do so through a civil rights action.

Palma-Salazar v. Davis , 677 F.3d 1031, 1035 (10th Cir. 2012) ; see also Standifer , 653 F.3d at 1280 ("It is well-settled law that prisoners who wish to challenge only the conditions of their confinement, as opposed to its fact or duration, must do so through civil rights lawsuits ... not through federal habeas proceedings.").

The history of the "great writ of liberty" makes sense of this distinction. The writ of habeas corpus serves a limited—but essential—function in our government of laws, not of men. It provides recourse against arbitrary detention and arrest by the executive. See The Federalist No. 84 (Alexander Hamilton) (explaining that the writ of habeas corpus is a bulwark against "the practice of arbitrary imprisonments, [which] have been, in all ages, the favorite and most formidable instruments of tyranny"). It does this by providing a detainee with a right to immediate release from illegal custody: "The essence of habeas corpus is an attack by a person in custody upon the legality of that custody." Preiser v. Rodriguez , 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

Inherent in this is the distinction between habeas claims and other civil rights claims. A petition for a writ of habeas corpus attacks the fact of custody or sentence. Standifer , 653 F.3d at 1280. The writ, if properly issued, says the state has no lawful basis to detain the petitioner under any circumstances. By contrast, a conditions-of-confinement claim attacks the circumstances of confinement. Id. It, if true, says that the state is detaining the petitioner in an unlawful manner, but otherwise the detention is lawful. The core difference between these claims lies in the answer to a simple question: if the challenged conduct ceased, would the state have a valid basis to detain him? If the answer is "yes," then the petitioner is pursuing a conditions-of-confinement claim and doesn't have a valid basis to seek a writ of habeas corpus.

Given this distinction, it is clear that the bulk of Mr. Basri's petition and motion for a temporary restraining order, which focus on the dangers of the SARS-CoV-2 virus, cannot support a writ of habeas corpus. As the government recognizes, the COVID-19 pandemic is a major public health threat. Mr. Basri's filings thoroughly highlight the serious dangers it poses in general, and to those in custody in particular. He attacks the measures (or lack thereof) that Defendants have implemented in response to COVID-19 on the basis that the lack of protection violates his constitutional rights. According to Mr. Basri, "The conditions in the Aurora Contract Detention Facility contravene all medical and public health directive[s] for risk mitigation." Doc. 6, ¶ 22.

Mr. Basri's filings repeatedly emphasize how these "conditions" render his detention unsafe and unconstitutional. See, e.g. , Doc. 21 at 3.¹ By its own terms, then, his claim is based on the conditions of his confinement. Under binding Tenth Circuit precedent, this is not a proper habeas corpus claim. Nevertheless, Mr. Basri says that "the very premise of [his] habeas petition is that the conditions in the Aurora CDF [that are] putting [him] at risk ... cannot be remedied by any judicial order." Doc. 21 at 3. But simply asserting that the petitioner believes release is the only proper remedy does not turn a conditions-of-confinement claim into a habeas corpus claim. As Standifer , Palma-Salazar , and the other cases discussed above explain, it is not just the remedy that determines whether one is asserting a habeas corpus or a conditions-of-confinement claim; the difference is that a habeas claim is one that asserts detention under any circumstances is illegal. Indeed, Mr. Basri's alternative claim—that he is being held in violation of the Constitution because he was made to bear the burden of proof at his bond hearings—is precisely the kind of claim that can be asserted in a habeas petition, because that claim attacks the fact of his continued confinement. But Mr. Basri's COVID-19-related claim cannot be asserted in a habeas petition. That he believes the Court is incapable of crafting relief that would safeguard his constitutional rights to basic protections from communicable disease is beside the point. He could have pursued such a claim in a civil-rights action. The Tenth Circuit is clear that the remedy of release is a required element of a habeas claim, but a habeas petition must also challenge the very fact (or duration) of the confinement under any circumstances. See Palma-Salazar , 677 F.3d at 1035 (prisoner "who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinement, must do so through an application for habeas corpus" but one "who challenges the conditions of his confinement...