Castillo v. Barr

• Citation: 449 F.Supp.3d 915
• Decision Date: 27 March 2020
• Docket Number: CV 20-00605 TJH (AFMx)
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Parties: Pedro Bravo CASTILLO and Luis Vasquez Rueda., Petitioners, v. William BARR, et al., Respondents.

449 F.Supp.3d 915

Pedro Bravo CASTILLO and Luis Vasquez Rueda., Petitioners,

v.William BARR, et al., Respondents.

CV 20-00605 TJH (AFMx)

United States District Court, C.D. California, Western Division.

Signed March 27, 2020

Mark D. Rosenbaum, Amanda Roman Mangaser Savage, Elizabeth Hercules-Paez, Jesselyn K. Friley, Judy London, Talia R. Inlender, Public Counsel, Los Angeles, CA, Dylan S. Cowit, Pro Hac Vice, Joshua A. Matz, Pro Hac Vice, Kyla P.S. Magun, Pro Hac Vice, Michael Skocpol, Pro Hac Vice, Kaplan Hecker and Fink LLP, New York, NY, for Petitioners.

Assistant 2241-194 US Attorney LA-CV, Mariam Kaloustian, AUSA – Office of US Attorney, Los Angeles, CA, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Respondents.

Temporary Restraining Order and Order to Show Cause

Terry J. Hatter, Jr., Senior United States District Judge

The Court has considered the application for a temporary restraining order filed by Petitioners Pedro Bravo Castillo and Luis Vasquez Rueda, together with the moving and opposing papers.

Castillo is a 58-year-old man who has, or had, suffered from kidney stones

, arthritis and a hernia. Vasquez is a 23-year-old man who is recovering from a work-related facial fracture. Castillo and Vasquez are, currently, being detained at the Adelanto Detention Center ["Adelanto"], in San Bernardino County. San Bernardino County is within the Central District of California.

Castillo and Vasquez filed this case as a petition for a writ of habeas corpus and complaint for declaratory and injunctive relief. Castillo and Vasquez are civil detainees, having been arrested by officers from the United States Department of Homeland Security's ["DHS"] Bureau of Immigration and Customs Enforcement ["BICE"] on March 16, 2020, and March 17, 2020, respectively, and then placed into removal proceedings, with the service of a Notice to Appear at the time of their arrest. Castillo's removal proceedings are pursuant to the Immigration and Nationality Act ["INA"] § 212(a)(6)(A)(i)(I), for being an alien present in the United States without being admitted or paroled, while Vasquez's removal proceedings are pursuant to INA § 237(a)(1)(B), for being an alien who after admission as a nonimmigrant under INA § 101(a)(15) remained in the United States for a time longer than permitted.

Adelanto is a private, for-profit immigration detention facility operated by Geo Group, Inc. Adelanto has the capacity to hold, under normal situations, well over 1,000 detainees through a contract with BICE. Over the years, and as recently as 2018, DHS's Office of the Inspector General had, repeatedly, found that significant and various health and safety risks existed at Adelanto.

On March 4, 2020, the State of California declared a state of emergency in response to the coronavirus and the resulting COVID-19 disease. On March 10, 2020, San Bernardino County followed suit and declared a state of emergency. On March 11, 2020, the World Health Organization ["WHO"] declared COVID-19 to be a global pandemic. On March 13, 2020, President Donald J. Trump, formally acknowledged and declared a national emergency in response to WHO's pandemic declaration.

On March 18, 2020, BICE announced that "[t]o ensure the welfare and safety of the general public as well as officers and agents in light of the ongoing COVID-19 pandemic response, [it] will temporarily adjust its enforcement posture beginning today ... [and that its] highest priorities are to promote life-saving and public safety activities." Further, BICE stated that it would focus enforcement "on public safety risks and individuals subject to mandatory detention based on criminal grounds [, and for those people who do not fall into those categories, agents] will exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate."

According to the United States Centers for Disease Control and Prevention, the coronavirus is spread mainly through person-to-person contact. More specifically, the coronavirus is spread between people who are in close contact – within about 6 feet – with one another through respiratory droplets produced when an infected person coughs

or sneezes. The droplets can land in the mouths or noses, or can be inhaled into the lungs, of people who are within about 6 feet of the infected person. Moreover, studies have established that the coronavirus can survive up to three days on various surfaces.

COVID-19 is highly contagious and has a mortality rate ten times greater than influenza

. Most troublesome is the fact that people infected with the coronavirus can be asymptomatic during the two to fourteen day COVID-19 incubation period. During that asymptomatic incubation period, infected people are, unknowingly, capable of spreading the coronavirus. Despite early reports, no age group is safe from COVID-19. While older people with pre-existing conditions are the most vulnerable to COVID-19-related mortality, young people without preexisting conditions have, also, succumbed to COVID-19. There is no specific treatment, vaccine or cure for COVID-19.

Because of the highly contagious nature of the coronavirus and the, relatively high, mortality rate of COVID-19, the disease can spread uncontrollably with devastating results in a crowded, closed facility, such as an immigration detention center. At Adelanto, a holding area can contain 60 to 70 detainees, with a large common area and dormitory-type sleeping rooms housing four or six detainees with shared sinks, toilets and showers. Guards regularly rotate through the various holding areas several times a day. At meal times – three times a day – the 60 to 70 detainees in each holding area line up together, sometimes only inches apart, in the cafeteria. The guards, detainees and cafeteria workers do not regularly wear gloves or masks to prevent the spread of the coronavirus. While detainees have access to gloves, there is no requirement that they wear them. Detainees do not have access to masks or hand sanitizer – though thorough hand washing could be more effective than hand sanitizers at preventing the spread of the coronvirus.

Just days ago, the first BICE detainee was confirmed to have been infected with COVID-19 in New Jersey at the Bergin County Jail, a BICE detention facility. Moreover, last week, a correctional officer at the Bergin County Jail was, also, confirmed to have been infected.

Yesterday, Judge Analisa Torres of the United States District Court for the Southern District of New York issued an order releasing certain immigration detainees, stating the following:

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 diseases 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 County, 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 doctors, including two medical experts for the Department of Homeland Security, have warned of a "tinderbox scenario" as COVID-19 spreads to immigration detention centers and the resulting "imminent risk to the health and safety of immigrant detainees" and the public. Catherine E. Shoichet, Doctors Warn of "Tinderbox scenario" if Coronavirus Spreads in ICE Detention , CNN (Mar. 20, 2020), https://www.cnn.com/2020/03/20/health/doctors-ice-detention-coronavirus/index.html. "It will be nearly impossible to prevent widespread infections inside the Hudson, Bergen, and Essex County jails now that the virus is in the facilities because detainees live, sleep, and use the bathroom in close proximity with others, and because ‘[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.’ " Petition ¶ 47 (internal quotation marks and citation omitted).

Basank, et al., v. Decker, et al. , 20 Civ. 2518 (S.D.N.Y., Feb. 28, 2020), ECF No. 11.

On March 23, 2020, the Ninth Circuit ordered, sua sponte and without further explanation, the release of an immigration petitioner "[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers." Xochihua-Jaimes v. Barr , 798 Fed.Appx. 52 (9th Cir. 2020).

Here, Petitioners base their petition on three claims: (1) Violation of the Fifth Amendment for a state-created danger; (2) Violation of the Fifth Amendment based on the special relationship between the Government and the persons in its custody; and (3) Violation of the Fifth Amendment based on punitive detention.

The theme underlying the Petitioners' various Fifth Amendment claims is that they are civil, not criminal, detainees. When the Government detains a person for the violation of an immigration law, the person is a civil detainee, even if he has a prior criminal conviction. See Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). As civil detainees, Petitioners are entitled to more considerate treatment than criminal detainees, whose conditions of confinement are designed to punish. See Youngberg v. Romeo , 457 U.S. 307, 321-22, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Moreover, under the Fifth Amendment's Due Process Clause, a civil detainee cannot be subjected to conditions that amount to punishment. See King v. Cty. of L.A. , 885 F.3d 548, 556-557 (9th Cir. 2018).

When the Government takes a person into custody and detains him against the person's will, the Constitution imposes upon the Government a duty to assume responsibility for that detainee's safety and general well...