Diaz v. Acuff

• Decision Date: 14 December 2020
• Docket Number: Case No. 20-cv-1112-SMY
• Parties: Ana Gabriela GARCIA DIAZ, a.k.a. Anton Garcia Diaz, Petitioner, v. Damon ACUFF, in his capacity as Warden, Pulaski County Detention Center, Robert Guadian, in his official capacity as Acting Field Office Director, Chicago Field Office, U.S. Immigration and Customs Enforcement, Tony H. Pham, in his official capacity as Senior Official Performing the Duties of Director of U.S. Immigration and Customs Enforcement, and Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, Respondents.
• Court: U.S. District Court — Southern District of Illinois

507 F.Supp.3d 991

Ana Gabriela GARCIA DIAZ, a.k.a. Anton Garcia Diaz, Petitioner,

v.Damon ACUFF, in his capacity as Warden, Pulaski County Detention Center, Robert Guadian, in his official capacity as Acting Field Office Director, Chicago Field Office, U.S. Immigration and Customs Enforcement, Tony H. Pham, in his official capacity as Senior Official Performing the Duties of Director of U.S. Immigration and Customs Enforcement, and Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, Respondents.

Case No. 20-cv-1112-SMY

United States District Court, S.D. Illinois.

Signed December 14, 2020

Keren Hart Zwick, National Immigrant Justice Center, Eric S. Mattson, Sidley Austin LLP, Chicago, IL, Radhika Kannan, Sidley Austin LLP, Washington, DC, for Petitioner.

Nicholas J. Biersbach, Assistant U.S. Attorney, Fairview Heights, IL, for Respondents.

MEMORANDUM AND ORDER

YANDLE, District Judge:

Petitioner Ana Gabriela Garcia Diaz, a transgender man also known as Anton Garcia Diaz,¹ is currently in immigration detention at the Pulaski County Detention Center in Ullin, Illinois ("Pulaski"). He filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint for Injunctive Relief, seeking immediate release on the grounds that his prolonged detention violates his right to procedural due process and that the conditions of his confinement violate his substantive due process rights. (Doc. 1).²

The Court has reviewed and considered the parties’ briefs and supplementary documentation. For the following reasons, Garcia Diaz's request for habeas corpus relief and immediate release is GRANTED .

Background

Garcia Diaz, a 31-year-old native of Honduras, entered the United States without inspection in 2008 and was removed in April 2008 pursuant to 8 U.S.C. § 1225(b)(1). (Doc. 11, p. 4). When he again returned to the U.S. without inspection, immigration authorities took steps to deport him by reinstating the April 7, 2008 expedited-removal order. Id. Garcia Diaz claimed he feared returning to Honduras, but an asylum officer concluded he did not have a reasonable fear of persecution or torture. That determination was affirmed by an immigration judge and Garcia Diaz was removed from the U.S. for a second time on August 5, 2009.

Garcia Diaz re-entered the U.S. again in 2014 and has resided in Wisconsin since then. (Doc. 1, p. 5). Following an arrest on September 26, 2019, he was taken into custody by Immigration and Customs Enforcement ("ICE") and remains detained.³ (Doc. 1, p. 5; Doc. 11, p. 4). His case was processed as a "reinstatement of removal" (Doc. 11, p. 5) and he applied for withholding of removal and protection under the Convention Against Torture ("CAT") on account of his LGBTQ identification and his fear of serious harm or death if he were to return to Honduras. An immigration judge found Garcia Diaz’ account of his fears to be credible and corroborated but denied his request for relief on February 10, 2020. (Doc. 1, pp. 5-6; Doc. 11, p. 5; Doc. 26-3, pp. 3, 8 in No. 20-352-SMY). Garcia Diaz appealed the ruling in March 2020; briefing before the Board of Immigration Appeals ("BIA") was completed as of May 29, 2020. On July 6, 2020, Garcia Diaz filed a motion for remand with the BIA which included new corroborating evidence regarding his gender identity, medical evaluation, and his attempts to secure hormone replacement therapy ("HRT").⁴ (Doc. 1, pp. 6, 22-23; Doc. 11, p. 5; Doc. 11-1, pp. 1-2). Both matters remain pending before the BIA. ICE cannot proceed with Garcia Diaz’ removal while his appeal remains pending. The agency has conducted 3 detention reviews (on May 26, July 22, and October 14, 2020) which resulted in decisions to continue Garcia Diaz’ detention. (Doc. 11, p. 6; Doc. 11-1, p. 2).

Garcia Diaz arrived at Pulaski on March 13, 2020 and was placed in the female housing unit which contained 12 two-person cells. As of May 2020, he was housed alone in a cell and only 4 other detainees were housed in the unit. No female detainees had shown symptoms or tested positive for COVID-19 up to that point. (Doc. 26-1, pp. 2, 4, in Case No. 20-352).

Garcia Diaz was subsequently moved to a single two-person cell with two female detainees in Pulaski's intake/booking area where he was exposed to new detainees being held in neighboring intake cells while awaiting COVID test results. (Doc. 1, p. 10-11; Doc. 1-1, pp. 4-5). He and his cellmates were unable to maintain social distancing in this small space. They were usually required to eat meals in the cell and had limited access to out-of-cell recreation and showers.⁵ (Doc. 1, pp. 10-13; Doc. 1-1, pp. 5, 7). After approximately a month, Garcia Diaz was moved to isolation for about a week.

On October 6, 2020, Garcia Diaz was moved back to a cell in the intake area with no cellmates. (Doc. 1-1, p. 5). Two other detainees were placed in the intake cell with him on November 12, 2020 and on November 16, 2020, he was moved from intake to D-pod along with the female detainees and now shares a cell with one other person. D-pod contains 12 two-person cells and detainees have access to a day room. (Doc. 16).

Since April 2020, confirmed COVID-19 cases at Pulaski have continued to rise, with a cumulative total of 81 positive cases recorded as of October 18, 2020 and 11 active infections on that date. (Doc. 1, pp. 3, 9).⁶ The facility continues to receive new ICE detainees as well as county arrestees and prisoners in federal custody. (Doc. 11-2, p. 1).⁷

Discussion

Garcia Diaz argues that his ongoing detention violates his Fifth Amendment right to be free from restraints on his liberty without procedural due process as he has not been afforded a bond hearing and the government has not demonstrated a "legitimate nonpunitive governmental purpose" for continuing his detention based on either a risk of flight or danger to the community. (Doc. 1, pp. 18-23). Respondents assert that his detention is governed by 8 U.S.C. § 1231 because his prior "administratively final removal order" was reinstated, and under § 1231(a)(1)(A) and (a)(2), his detention is mandatory. (Doc. 11, pp. 1-2, 10-11). They further argue that his continuing detention is authorized because he has appealed the immigration judge's order to the BIA and sought remand, and his previous illegal entries to the U.S. support a conclusion that he is a flight risk. (Doc. 11, pp. 11-12).⁸

Under 28 U.S.C. § 2241, a court may grant release to a person who "is in custody in violation of the Constitution or laws or treaties of the United States." Noncitizens may challenge the fact of their civil immigration detention through a § 2241 petition, Zadvydas v. Davis , 533 U.S. 678, 687-88, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), and courts may consider individualized challenges to the constitutionality of immigration detention. See Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 851-52, 200 L.Ed.2d 122 ; Nielsen v. Preap , ––– U.S. ––––, 139 S. Ct. 954, 972, 203 L.Ed.2d 333 (2019) ("Our decision today on the meaning of that statutory provision [ § 1226(c) ] does not foreclose as-applied challenges—that is, constitutional challenges to applications of the statute as we have now read it."); Preiser v. Rodriguez , 411 U.S. 475, 484, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ; Zadvydas , 533 U.S. 678, 687, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ; Vargas v. Beth , 378 F. Supp. 3d 716, 722-23 (E.D. Wisc. 2019) (federal courts have jurisdiction over due process challenges to detention) (collecting cases).

It has long been established that detainees are entitled to procedural due process in relation to restraints on their liberty. Demore v. Kim , 538 U.S. 510, 523, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) ; Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491. At the same time, the government has a legitimate interest in protecting the community from any danger posed by a detainee and in ensuring his or her appearance at immigration proceedings. Thus, when considering a habeas petition challenging detention, the Court must determine whether the particular detention at issue is reasonably related to one of these governmental interests – the government must justify continued civil confinement with "clear and convincing evidence" that the detainee is a flight risk or poses a danger to the community.

Foucha v. Louisiana , 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). See also Mathews v. Eldridge , 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

While the ordinarily "brief" detention associated with pending removal proceedings is constitutionally permissible (see Demore , 538 U.S. at 528-31, 123 S.Ct. 1708, observing that detention under § 1226(c) lasts for less than 90 days "in the majority of cases"), detention that becomes indefinite raises "serious constitutional concerns." Zadvydas , 533 U.S. at 682, 121 S.Ct. 2491 (detention longer than 6 months during attempts to execute final order of removal was presumptively unreasonable). As the Seventh Circuit Court of Appeals has observed, "[i]t would be a considerable paradox to confer a constitutional or quasi-constitutional right to release on an alien ordered removed ( Zadvydas ) but not on one who might have a good defense to removal." Hussain v. Mukasey , 510 F.3d 739, 743 (7th Cir. 2007). Garcia Diaz, who is actively pursuing a cognizable defense to his removal, falls into the latter category.

In assessing the constitutionality of continued immigration detention, courts consider a number of relevant factors, including: the length of detention to date; whether it exceeds the time the detainee was in prison for the crime that prompted removal proceedings; the likely duration of future detention; the conditions of detention; whether civil detention is meaningfully different from punitive detention; whether delays in the removal proceedings were caused by the detainee or the government; and the likelihood that removal proceedings will be...