Da Graca v. Souza
| Citation | 991 F.3d 60 |
| Decision Date | 17 March 2021 |
| Docket Number | No. 20-2117,20-2117 |
| Parties | In re: Aires DA GRACA; Conroy Lewis; Cyril Okoli; Darlin Alberto Guillermo; Dimitar Daskalov; Edson Martins; Emmanuel Lopez; Flavio Prado Junior; Fred Kayitare; Gabriel De La Paz; Joao Amado; Keith Williams, Petitioners, v. Steven J. SOUZA, in his official capacity as Superintendent of the Bristol County House of Correction, Respondent, Tae D. Johnson, in his official capacity as Acting Director for U.S. Immigration and Customs Enforcement; Alejandro Mayorkas, in his official capacity as Secretary of the Department of Homeland Security; Immigration Customs Enforcement ; Todd M. Lyons, in his official capacity as Acting Director of the Boston Field Office of Immigration and Customs Enforcement; Thomas M. Hodgson, in his official capacity as Bristol County Sherriff, Respondents. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Sameer Ahmed, with whom the Harvard Law School Crimmigration Clinic was on brief, for petitioners.
Christina Parascandola, Senior Litigation Counsel, Office of Immigration Litigation, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, William C. Peachey, Director, Office of Immigration Litigation, Jeffrey S. Robins, Deputy Director, Office of Immigration Litigation, William C. Silvis, Assistant Director, Office of Immigration Litigation, Michelle M. Ramus, Trial Attorney, Office of Immigration Litigation, Thomas E. Kanwit, Assistant United States Attorney, and Michael Fitzgerald, Assistant United States Attorney, were on brief, for respondents.
Before Lynch, Selya, and Kayatta, Circuit Judges.
Petitioners are immigration detainees primarily held at the Bristol County House of Correction ("BCHOC"). Respondents include state correction officials and federal U.S. Immigration and Customs Enforcement ("ICE") officials who secured petitioners' detention after they were picked up, usually after commission of criminal felony offenses, and found not to be legally in the United States. Claiming that the district court erred in denying their bail applications despite the ongoing COVID-19 pandemic, the detainees petition for a writ of mandamus. We deny the petition.
Petitioners are class members in a habeas class action filed against ICE and certain government officials on March 27, 2020. The habeas petition requested relief for immigration detainees held at BCHOC who were "at imminent risk of contracting COVID-19, the lethal virus that is sweeping the globe and that feeds on precisely the unsafe, congregate conditions in which Plaintiffs are being held." When the habeas petition was filed, there were approximately 148 detainees held at BCHOC. See Savino v. Souza, 453 F. Supp. 3d 441, 443 (D. Mass. 2020).
The habeas petition stated that the immigration detention facilities were overcrowded, housed a high proportion of people especially vulnerable to COVID-19, offered detainees limited access to hygiene products, and did not allow for social distancing. It alleged that the defendants violated the petitioners' Fifth Amendment rights to due process by exposing them to an "imminent risk of physical, emotional and mental harm" and violated § 504 of the Rehabilitation Act, see 29 U.S.C. § 794(a), by exposing petitioners with underlying medical conditions to COVID-19 and thus preventing them from participating in the removal process by reason of their disability. Among other things, the habeas petition sought immediate release of the petitioners to the population at large or "placement in community-based alternatives to detention." Petitioners also moved for a temporary restraining order and class certification.
On April 2, 2020, the district court held a hearing, grouped detainees into five subclasses based on their criminal histories and medical conditions, and provisionally certified these subclasses. See Savino, 453 F. Supp. 3d at 448 & n.8. The next day, it held another hearing at which it requested that the parties submit a list of fifty detainees applying for bail by April 4, 2020, and a list of ten bail applications per day starting on April 7, 2020. The parties did not agree on a list of fifty detainees by April 4, 2020, so the court created its own list and set hearing dates beginning on April 7, 2020.
On April 8, 2020, the district court issued a memorandum and order holding that the petitioners had standing to bring their claims and certified the petitioners' proposed class of "[a]ll civil immigration detainees who are now held ... at [BCHOC]."1 Id. at 454. It said it would "follow[ ] the light of reason and the expert advice of the [Centers for Disease Control and Prevention] in aiming to reduce the population in the detention facilities so that all those who remain (including staff) may be better protected," id. at 454, and that it would use its "inherent authority" to "order bail for several Detainees and to consider bail applications for others," id. at 453. In considering bail applications, the court said it would prioritize releasing non-violent detainees and in fact did so. See id. at 454.
The district court conducted hearings on many detainees' bail applications throughout April. By April 28, 2020, it had granted bail to forty-two detainees and denied bail to nineteen. By May 5, 2020, eighty-two detainees remained at BCHOC, about a 45% reduction from the original 148 detainees.
On May 7, 2020, the district court granted the class's motion for a preliminary injunction. It ordered that no new immigration detainees be admitted to BCHOC, that all current detainees be tested for COVID-19, and that all staff who come into contact with BCHOC detainees also be tested. On May 12, 2020, the court issued a memorandum of decision providing its reasoning for its issuance of the preliminary injunction. See Savino v. Souza, 459 F. Supp. 3d 317, 320-21 (D. Mass. 2020).
On November 5, 2020, the class moved for reconsideration of the court's denial of bail to some of the petitioners. The district court denied this motion on December 18, 2020.
The five remaining detainees who continue to pursue a writ of mandamus before this court -- Aires Da Graca, Flavio Prado Junior, Conroy Lewis, Joao Amado, and Fred Kayitare -- filed their petition on November 25, 2020.2 They had been denied bail in April 2020.3 The district court did not explicitly state reasons for denying bail to these detainees, but all of them have criminal histories showing that they were convicted of committing violent crimes.4
The All Writs Act allows federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The writ of mandamus has "stringent requirements," In re Tsarnaev, 780 F.3d 14, 16 (1st Cir. 2015), and is "generally thought an inappropriate prism through which to inspect exercises of judicial discretion," id. at 18 (quoting In re Bushkin Assocs., Inc., 864 F.2d 241, 245 (1st Cir. 1989) ). " ‘[O]nly exceptional circumstances amounting to a judicial "usurpation of power," ’ or a ‘clear abuse of discretion,’ ‘will justify the invocation of this extraordinary remedy.’ " Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (citations omitted) (first quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) ; then quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953) ; and then quoting Will, 389 U.S. at 95, 88 S.Ct. 269 ). Before mandamus can be granted, petitioners must show that there is no other adequate means to attain their desired relief and that they have a "clear and indisputable" right to issuance of the writ. Id. at 380-81, 74 S.Ct. 145 (quoting Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) ); see In re Fin. Oversight & Mgmt. Bd. for P.R., 985 F.3d 122, 127 (1st Cir. 2021). Further, the court issuing the writ, acting within its discretion, "must be satisfied that the writ is appropriate under the circumstances." Cheney, 542 U.S. at 381, 124 S.Ct. 2576.
Mandamus comes in two varieties: supervisory mandamus and advisory mandamus. In re Grand Jury Subpoena, 909 F.3d 26, 28 (1st Cir. 2018). The petitioners argue for both types.
Supervisory mandamus "is available when ‘the issuance (or nonissuance) of [a district court] order presents a question about the limits of judicial power, poses some special risk of irreparable harm to the [party seeking mandamus], and is palpably erroneous.’ " Id. (alterations in original) (quoting United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994) ). At least one of the necessary conditions for supervisory mandamus is not met here, so we do not discuss the others.
Petitioners have made no showing that the district court "palpably" erred. The harm that the petitioners originally complained of was "unconstitutional overcrowding" during the height of the COVID-19 pandemic. Savino, 453 F. Supp. 3d at 447. Remedying overcrowding does not require releasing every detainee on bail. Indeed, the court stated that "effectively minimiz[ing] the concentration of people in [BCHOC]" would "protect everyone from the impending threat of mass contagion" and therefore started granting bail to some detainees. Id. at 452. It properly recognized that granting bail under these circumstances "requires individualized determinations, on an expedited basis, and ... should focus first on those who are detained pretrial who have not been charged with committing violent crimes." Id. at 454 (quoting Comm. for Pub. Counsel Servs. v. Chief Just. of Trial Ct., 484 Mass. 431, 142 N.E.3d 525, 537 (2020), aff'd as modified, 484 Mass. 1029, 143 N.E.3d 408 (2020) ); cf. United States v. Zimny, 857 F.3d 97, 99 (1st Cir. 2017) (...
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...(writ granted to correct district court order denying motion to exclude time under Speedy Trial Act). But see, e.g. , Da Graca v. Souza, 991 F.3d 60, 64-65 (1st Cir. 2021) (writ denied because petitioner made no showing that district court “palpably erred”); du Purton v. U.S., 891 F.3d 437,......