Dzhabrailov v. Decker
| Decision Date | 26 May 2020 |
| Docket Number | 20-cv-3118 (PMH) |
| Parties | ADAM SHAMADOVICH DZHABRAILOV, Petitioner, v. THOMAS DECKER, in his official capacity as Director of the New York Field Office of U.S. Immigrations & Customs Enforcement, CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, and CARL E. DUBOIS in his official capacity as Sheriff of Orange County, New York, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Petitioner, Adam Shamadovich Dzhabrailov, filed a petition in this Court on April 18, 2020 for a writ of habeas corpus under 28 U.S.C. § 2241 naming as Respondents Thomas Decker, in his official capacity as Director of the New York Field Office of U.S. Immigrations & Customs Enforcement, Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security, and Carl E. DuBois in his official capacity as Sheriff of Orange County, New York (collectively "Respondents"). (Doc. 1, "Pet. Habeas Appl."). Petitioner brings two claims for relief asserting that his constitutional rights under the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution have been violated by his confinement under conditions that pose an excessive risk to his health.1 Petitioner alleges that, in light of the COVID-19 pandemic, Respondents have failed to (1) protect Petitioner, id. ¶¶ 110-13, and (2)provide adequate medical care, id. ¶¶ 114-16. Alternatively, Petitioner asks this Court to grant him bail and then release under the legal framework established in Mapp v. Reno, arguing that bail and release is appropriate because (1) Petitioner's habeas petition raises substantial claims and (2) extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective. See Pet. Habeas Appl. ¶¶ 103-05 (citing Mapp v. Reno, 241 F.3d 221 (2d Cir. 2001)).
On April 19, 2020, Petitioner filed an application by order to show cause for a temporary restraining order and preliminary injunction. ). Petitioner seeks a court order requiring Respondents to release Petitioner "upon his own recognizance, subject to reasonable and appropriate conditions" or, in the alternative, Petitioner requests "that the Court conduct a telephonic bail hearing where Respondents must prove, by clear and convincing evidence, that [Petitioner's] ongoing detention is necessary and does not violate his due process [rights]." Id. at 1.
On April 21, 2020, Judge Katherine Polk Failla ordered that Respondents show cause and file a return and opposition as to why Petitioner's habeas application and motion for a temporary restraining order and preliminary injunction should be denied. (Doc. 5). Respondents filed their return and opposition to the motion on April 27, 2020. (Doc. 18, "Resp't Return"). On May 1, 2020, Petitioner filed his reply to Respondents' return and opposition. (Doc. 21, "Pet. Reply").
On May 20, 2020, the Court held a telephonic hearing on the preliminary injunction motion and the merits of the habeas petition.
For the reasons set forth below, Petitioner's motion for a preliminary injunction, including the request for a bail hearing, is DENIED. Additionally, Petitioner's habeas petition is DISMISSED.
Petitioner, a 33-year-old native of the former Soviet Union and a Russian citizen, entered the United States without inspection in or around April 2009. Pet. Habeas Appl. ¶ 14. On April 23, 2010, Petitioner filed an asylum application, which was granted on June 8, 2010. Id. On March 6, 2013, an INTERPOL Red Notice was issued for Petitioner related to a Russian arrest warrant which alleged that Petitioner was part of an organized criminal group in Russia. (Doc. 19, "Mem. of Law in Supp. Resp't Return," at 2). On November 2, 2017, the United States Citizenship and Immigration Services ("USCIS") issued a Notice of Intent to Terminate Petitioner's asylum status. Pet. Habeas Appl. ¶ 15. The Notice included one charge of removability indicating that USCIS had obtained evidence that Petitioner's asylum application was fraudulent. Mem. of Law in Supp. Resp't Return at 3. On December 20, 2017, ICE added additional charges of removability asserting that Petitioner engaged in a terrorist activity. Id. at 4. On February 1, 2018, an immigration judge determined that the charges of removability levied against Petitioner had been established. Pet. Habeas Appl. ¶ 15. On April 17, 2018, Petitioner sought deferral of removal from the United States asserting that his removal would be in violation of the Convention Against Torture ("CAT"). Id. ¶ 16. On August 30, 2019, the Immigration Court granted Petitioner deferral of removal under the CAT. Id. The Department of Homeland Security ("DHS") appealed the Immigration Judge's decision to the Board of Immigration Appeals ("BIA"). Id. On February 21, 2020, the BIA affirmed the Immigration Court's decision deferring removal pursuant to the CAT and remanded the case to the Immigration Court to close Petitioner's case. Id. ¶ 17. On April 24, 2020, the Immigration Judge issued a final decision ordering that the Petitioner be removed to Russia butdeferring removal under the CAT. Mem. of Law in Supp. Resp't Return at 8. On April 29, 2020, the Immigration Court issued its final order. (Doc. 20).
Pursuant to 8 U.S.C. § 1231, Petitioner is currently being detained pending his removal. Section 1231 provides that, "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days." 8 U.S.C. § 1231(a)(1)(A). Due to the Immigration Court's decision that Petitioner's removal to Russia would be in violation of the CAT, ICE is presently in the process of attempting to find a country, other than Russia, that will accept Petitioner for the purposes of removal. Mem. of Law in Supp. Resp't Return at 8. If ICE determines that there is no willing third country, ICE will release Petitioner. Id.
Petitioner, who is currently housed at the Orange County Jail ("OCJ"), asks the Court to order that he be discharged from OJC in light of the COVID-19 pandemic. Specifically, Petitioner argues that he is confined in "close quarters without protection" and that "the Court should immediately issue a temporary restraining order [and] preliminary injunction requiring ICE to release Petitioner from custody pending resolution of his writ application so he has a chance to avoid infection and potential death from COVID-19." Pet. Habeas Appl. ¶ 29.
Petitioner asserts that the OCJ is "woefully unprepared and incapable of taking necessary precautions to protect people in their custody" from COVID-19. Id. ¶ 51. At the time Petitioner submitted his habeas application, COVID-19 had not yet reached OCJ, id. ¶ 52, but Petitioner nonetheless argues that "[i]t will be nearly impossible to prevent widespread infections inside [OCJ] once one person contracts the virus because detainees live, sleep, and use the bathroom in close proximity with others," id. ¶ 63.
Respondents aver that Petitioner "has not alleged any facts to suggest that he is at an elevated or heightened risk of illness because of any underlying health conditions or concerns." Mem. of Law in Supp. Resp't Return at 8. With respect to Petitioner's allegation that he has a "chronic heart ailment," see Pet. Habeas Appl. at 2, Respondents argue that Petitioner's medical records make no mention of such a heart condition, and, in any event, Petitioner does not allege that his condition makes him a high risk individual according to Centers for Disease Control ("CDC") guidance. Mem. of Law in Supp. Resp't Return at 9 n.2. Petitioner concedes that his condition is "not . . . the kind of chronic medical problems that have been the trigger in most of the COVID-19 related cases that have resulted in the release of numerous civil and criminal detainees." Pet. Reply at 13 n.26. On May 19, 2020, Petitioner supplemented the record and filed two documents which purport to show that Petitioner was diagnosed with Cardiac Vegetative Dysfunction after two visits to a doctor in Russia in March and May 2008. (Doc. 32).
Respondents further argue that OCJ has put into place adequate measures to protect detainees from COVID-19. Mem. of Law in Supp. Resp't Return at 11-12. Respondents assert that as of April 24, 2020, there were no confirmed cases of COVID-19 at OCJ, and, as of April 27, 2020, there were no symptomatic detainees in Petitioner's housing unit. Id. at 12. Respondents also assert that ICE has been following guidance issued by the CDC regarding how to screen and test ICE detainees to prevent exposure to COVID-19. Id. at 13-14. By letter dated May 5, 2020, Respondents informed the Court, with competent evidence, that as of May 5, 2020 there were no confirmed positive COVID-19 ICE detainees or inmates at OCJ and provided the Court an updateon additional precautionary measures taken by OCJ in response to the COVID-19 pandemic. (Doc. 22).2
"A preliminary injunction 'is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" C.D.S., Inc. v. Zetler, 217 F. Supp. 3d 713, 716 (S.D.N.Y. 2016) (quoting Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007)). To obtain a preliminary injunction, a petitioner must demonstrate: "1) irreparable harm absent injunctive relief; 2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the [petitioner's] favor; and 3) that the public's interest weighs in favor of granting an injunction." Westchester Fire Ins. Co. v. DeNovo Constructors, Inc., 177 F. Supp. 3d 810, 811-12 (S.D.N.Y. 2016) (quoting ...
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