D.A.M. v. Barr, Case No. 20-cv-1321 (CRC)

• Decision Date: 23 July 2020
• Docket Number: Case No. 20-cv-1321 (CRC)
• Citation: 474 F.Supp.3d 45
• Parties: D.A.M., et al., Petitioners, v. William BARR, in his official capacity as Attorney General of the United States, et al., Respondents.
• Court: U.S. District Court — District of Columbia

474 F.Supp.3d 45

D.A.M., et al., Petitioners,

v.William BARR, in his official capacity as Attorney General of the United States, et al., Respondents.

Case No. 20-cv-1321 (CRC)

United States District Court, District of Columbia.

Signed July 23, 2020

Gregory P. Copeland, Sarah Telo Gillman, Rapid Defense Network, New York, NY, Steven G. Barringer, Greenberg Traurig, P.A., Washington, DC, for Plaintiffs D.A.M., A Minor, J.S.P., L.O.R., J.S.M., S.L.V.

Caroline Heller, Pro Hac Vice, Greenberg Traurig P.A., Gregory P. Copeland, Sarah Telo Gillman, Rapid Defense Network, New York, NY, Steven G. Barringer, Greenberg Traurig, P.A., Washington, DC, for Plaintiff All Plaintiffs.

Christopher Charles Hair, U.S. Attorney's Office for the District of Columbia, Erez Reuveni, U.S. Department of Justice, Washington, DC, for Respondents.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge Petitioners in this case are nearly 100 families from eleven countries who were denied asylum after entering the United States without valid entry documents and, consequently, are subject to orders of expedited removal from the country. Many of them are currently being detained by Immigration and Customs Enforcement ("ICE") at either the South Texas Family Residential Facility in Dilley, Texas ("Dilley") or the Berks County Residential Center in Leesport, Pennsylvania ("Berks"). Others have been released for medical or other reasons. All petitioners seek a writ of habeas corpus preventing ICE from deporting them during the COVID-19 pandemic. Presently before the Court is a motion for a temporary restraining order, filed on behalf of the detained petitioners only, seeking an emergency stay of their imminent removals. They contend that if the removals were to go forward as planned, they would be exposed to increased risk of contracting COVID-19 during the deportation process, and later in their home countries, which would violate their due process rights and ICE's internal regulations. Finding that it likely has jurisdiction to review petitioners’ challenge to the conditions they would experience during the deportation process but concluding that they have not satisfied the requirements for preliminary injunctive relief, the Court will deny their TRO motion and lift the administrative stay of removal that the Court put in place while it considered the motion.

I. Background

A. Deportation in the Time of COVID-19

It goes without saying that we are in the midst of a global pandemic. As of this writing, there are over fourteen and a half million confirmed cases of COVID-19 worldwide with over 600,000 people dead. See WHO, Coronavirus Disease (COVID-19) Pandemic (updated July 21, 2020).¹ The United States remains a hotspot, with over three and a half million confirmed cases and more than 140,000 deaths. CDC, Cases in the U.S. (updated July 21, 2020).²

COVID-19 is highly contagious. It spreads primarily through close person-to-person contact, because carriers of the virus produce airborne respiratory droplets when they cough, sneeze, or talk that may be inhaled by others standing nearby. See CDC, How to Protect Yourself & Others (Apr. 14, 2020).³ Though less frequent, the virus can be also spread through contact with contaminated surfaces. See CDC, Detailed Disinfection Guidance (updated July, 2020).⁴ Symptoms, such as fever, cough, and shortness of breath, typically appear two to fourteen days after exposure, but even those who are asymptomatic may be capable of spreading the disease. CDC, Clinical Questions about COVID-19: Questions and Answers – Transmission (July 21, 2020).⁵ The most effective ways to prevent contracting the virus are to avoid being within six feet of other people, to wash your hands frequently, to avoid crowded places and gathering in groups, to cover your mouth and nose with a mask when around others, and to clean and disinfect frequently touched surfaces. See CDC, How to Protect Yourself & Others (Apr. 24, 2020). In addition, the CDC discourages travel because it "increases your chances of getting infected and spreading COVID-19" by making it difficult to follow the practices laid out in the prevention guidelines. CDC, Travel in the US (June 28, 2020).⁶ But, neither the CDC, nor any other U.S. governmental body to the Court's knowledge, has banned travel altogether. Id. (providing tips on how to "protect yourself and others" if you travel). Indeed, commercial air travel has continued throughout the duration of the pandemic, although at reduced levels and with heightened safety precautions. See Dep't of Transp., et al., Runway to Recovery (July 2020).⁷ To date, there is no approved vaccine or cure for COVID-19. CDC, How to Protect Yourself & Others (Apr. 24, 2020).

During the pandemic, ICE has continued to deport noncitizens subject to final removal orders. At the heart of this case is whether appropriate safeguards are being taken during the deportation process. ICE has submitted declarations from officials familiar with the process, and, while not to be accepted blindly, these declarations are subject to a presumption of good faith absent clearly contradictory evidence. C.G.B. v. Wolf, No. 20-cv-1072, 464 F.Supp.3d 174, 190–91, (D.D.C. June 2, 2020) (Cooper, J.) (citing cases). According to ICE's declarants, it has implemented additional health screening, cleaning, and transportation protocols to help prevent the spread of COVID-19 while executing final orders of removal. Harper Decl. ¶ 7. ICE attests that a medical professional with its Health Service Corps completes a transfer summary certifying that each detainee is medically cleared for travel after a review of their medical records. Id. ¶ 10. ICE conducts COVID-19 testing prior to removal, but only for migrants being returned to countries that require the United States to do so. Id. ¶ 11. ICE has also implemented additional pre-removal screening procedures, which entail evaluations of all deportees by a health professional to determine whether they are experiencing any symptoms that would preclude their travel, including those associated with COVID-19. Id. ¶ 12. Prior to boarding any transportation vehicle, ICE also questions each detainee to confirm whether she is experiencing any COVID-19 symptoms. Id. ¶ 14. If the detainee clears this screening process, she is scheduled for removal. Id. Prior to removal, ICE medical staff ensures that each deportee's temperature is below 99 degrees, well under the 100.4-degree threshold that the CDC has identified as a symptom of COVID-19. Id. ¶ 15.

ICE further attests that it provides detainees with personal protective equipment ("PPE"), including surgical-grade face masks, nitrile gloves on request, and hand sanitizer, throughout the removal process. Id. ¶ 17.⁸ The same is true for transportation personnel. Id. ¶ 22. ICE requires masks to be worn at all times and performs temperature checks on detainees every hour. Id. ¶ 26. It now uses ICE-operated aircraft and ground vehicles only, which it says comply with CDC and ICE detention standards. Id. ¶ 7. ICE explains that all vehicles used during the removal process are thoroughly cleaned and disinfected by a contractor before and after transports. Id. ¶ 21.

Upon arrival at an intermediate destination within the U.S., transportation specialists once again check all deportees’ temperatures. Id. ¶ 28. ICE permits deportees to keep any PPE on the next mode of transportation or for use in their home countries. Id. ICE flights now have an extra medical provider, and its medical staff conducts another round of temperature checks and visual screenings at the airport. Cordero Decl. ¶ 11–12. Detainees who fail these screenings are denied boarding. Id. ¶ 13. During the flights, families must sit in the front of the plane while individuals are placed at the rear, and, if possible, ICE instructs that empty seats remain between families and individuals to maintain physical distance. Id. ¶ 18. The ICE-chartered planes are also cleaned and disinfected after every flight. Id. ¶ 19. As noted, ICE only tests deportees for COVID-19 prior to removal to countries that "require testing prior to repatriation." Id. ¶ 7. It explains that it simply "does not have enough testing resources to test all" noncitizens "scheduled for future removals." Id. ¶ 8.

Petitioners insist that many of the precautions ICE describes are simply not being taken and that others are woefully inadequate. For example, an attorney who works with clients detained at the Berks family residential center in Pennsylvania declares that deportation from that center requires the use of public transportation and entails comingling with detainees from other detention centers. Cambria Decl. ¶ 10–14. ICE acknowledges that detainees are comingled during the deportation process but adds that social distancing is practiced "to the extent possible." Cordero Decl. ¶ 18. Petitioners explain that, prior to the pandemic, deportees often had layovers with commercial airlines. Cambria Decl. ¶ 12. As noted, however, ICE represents that it is currently only using ICE-chartered flights and "has taken reasonable steps to ensure that all Air Charter flights comply" with CDC and FAA regulations. Martinez Decl. ¶ 4. Despite ICE's precautions, petitioners report that some removal flights have included individuals infected with COVID-19. Cambria Decl. ¶ 15.

In addition to the dangers they face during the deportation process, petitioners fear what may await them when they reach their home countries.⁹ Many of these countries’ medical systems, they allege, are ill-equipped to handle an influx of cases. Am. Pet'n & Compl. ¶¶ 209–32. In some countries, such as Guatemala, petitioners say that new arrivals from the United States are persecuted because they are seen as bringing the virus with them. See, e.g., T.A.L. Decl. ¶¶ 12–26 (prior deportee describing physical intimidation and verbal abuse upon arrival in Guatemala). They claim further that many of the...