Essien v. Barr
| Citation | 457 F.Supp.3d 1008 |
| Decision Date | 24 April 2020 |
| Docket Number | Civil Action No. 20-cv-1034-WJM |
| Parties | Uto Thomas ESSIEN, Petitioner, v. William BARR, Attorney General, U.S. Department of Justice, Matthew T. Albence, Acting Director for Immigration and Customs Enforcement; Chad Wolf, Secretary, U.S. Department of Homeland Security; and John Fabbricatore, Field Office Director, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; Johnny Choate, Warden of the Aurora Contract Detention Facility, in their official capacities, Respondents. |
| Court | U.S. District Court — District of Colorado |
Jeffrey Dean Joseph, Aaron C. Hall, Joseph & Hall P.C., Aurora, CO, for Petitioner.
Jane Elizabeth Bobet, U.S. Attorney's Office, Denver, CO, for Respondents.
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
Uto Thomas Essien ("Essien") is an immigration detainee in the custody of Defendant U.S. Immigration and Customs Enforcement ("ICE"), being held at the Aurora Contract Detention Facility ("Facility") in Aurora, Colorado. He asserts that his medical conditions make him especially susceptible to a severe case of COVID-19 and so it is unconstitutional to keep him at the Facility, where he cannot reasonably protect himself from infection. He has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. He has also brought the motion currently before the Court, namely, his Motion for a Temporary Restraining Order, seeking immediate release so he may live at the home of his sister in Aurora. (ECF No. 4.)
"Considering the nature of relief requested and the fact that counsel for Defendants ha[d] already appeared," the Court concluded that a temporary restraining order was inappropriate, but "sua sponte construe[d] [Essien's] motion as one for a preliminary injunction." (ECF No. 7.) The motion—like the current COVID-19 crisis—raises a number of difficult questions. Having carefully examined the parties' submissions, the Court finds, for the reasons explained below, that a preliminary injunction should issue, releasing Essien from the Facility and subjecting him to home detention at his sister's home.
Essien is a Nigerian citizen who has not had lawful status in the United States since November 1996. (ECF No. 10 at 2.) He was convicted in July 2009 in Colorado state court of racketeering, forgery, and theft, and sentenced to twenty-four years' imprisonment. (Id. at 3.) He was released from prison, however, in 2019, after which ICE officers detained him. (Id. ) He has been in removal proceedings since then, and is being held at the Facility without bond. (Id. at 3–4.)
As is well known, the novel coronavirus officially known as SARS-CoV-2, and the disease it causes, COVID-19, have led to a worldwide pandemic. The problem became especially acute in Colorado in mid-March 2020.
As will be described in greater detail below, Essien claims he has several medical conditions that make him particularly susceptible to a severe case of COVID-19, should he contract the disease. He fears that if the virus begins spreading within the Facility, he will be unable to avoid it, and will become severely ill. He applied to ICE for humanitarian parole, and ICE rejected that application on April 7, 2020. (ECF No. 1-15.)
So far, there have been no confirmed cases of COVID-19 at the Facility. (ECF No. 10 at 9.) However, five Facility employees have tested positive. (Id. at 10.)
The Court will provide further factual findings as they become relevant to the analysis below.
A preliminary injunction is an extraordinary remedy; accordingly, the right to relief must be clear and unequivocal. See, e.g. , Flood v. ClearOne Commc'ns, Inc. , 618 F.3d 1110, 1117 (10th Cir. 2010). "A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter v. NRDC , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
The Tenth Circuit previously endorsed an alternate standard that relaxed the likelihood of success requirement when the other three factors tipped strongly in the movant's favor. See, e.g. , Oklahoma ex rel. Okla. Tax Comm'n v. Int'l Registration Plan, Inc. , 455 F.3d 1107, 1113 (10th Cir. 2006). The Tenth Circuit abrogated this standard in 2016, announcing that "any modified test which relaxes one of the prongs for preliminary relief and thus deviates from the standard test is impermissible." Diné Citizens Against Ruining Our Environment v. Jewell , 839 F.3d 1276, 1282 (10th Cir. 2016).
Free the Nipple-Fort Collins v. City of Fort Collins , 916 F.3d 792, 797 (10th Cir. 2019) (citations and internal quotation marks omitted).
ICE says that Essien is seeking an injunction that hits all three of the foregoing possibilities. (ECF No. 10 at 12.) The Court will ignore the first possibility because mandatory versus prohibitory is often a matter of semantics. The Court agrees as to the second possibility—a change in the status quo. "[T]he status quo [is] the last peaceable uncontested status existing between the parties before the dispute developed." Free the Nipple , 916 F.3d at 798 n.3 (internal quotation marks omitted). The last peaceable uncontested status here is Essien's detention before COVID-19 became of significant concern, and Essien is seeking to change that status. Thus, for at least this reason, Essien must make a "strong showing" on "the likelihood-of-success-on-the-merits and the balance-of-harms factors." Id. at 797.3
A petition for writ of habeas corpus seeks "release from unlawful physical confinement." Preiser v. Rodriguez , 411 U.S. 475, 485, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Congress has authorized this Court to grant the writ to a petitioner who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(a), (c)(3).
Many courts, including the Tenth Circuit, make a distinction between, on the one hand, an attack on confinement itself, which is the appropriate object of a habeas petition, and, on the other hand, an attack on the conditions of confinement, which normally must be brought as a civil rights action under 42 U.S.C. § 1983 if against a state, or under Bivens v. Six Unknown Named Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), if against the federal government. See McIntosh v. U.S. Parole Comm'n , 115 F.3d 809, 811–12 (10th Cir. 1997). In theory, these causes of action are oil and water: a habeas claim may lead to an order releasing the prisoner or detainee or nothing at all; whereas a conditions-of-confinement claimant may only lead to an order requiring the government to improve the conditions of confinement, but not an order releasing the prisoner or detainee. See id.
ICE insists that Essien attacks the conditions of his confinement because he argues that the Facility, by its layout and operation, puts him at serious risk of contracting COVID-19. Therefore, Essien must bring a Bivens action. (ECF No. 10 at 12–13.) Essien responds that release from custody is the only effective remedy available under the circumstances because, for all practical purposes, there is no way he can avoid infection in the close-quarters, communal living arrangement that the Facility was designed to provide. Therefore, release from custody—a uniquely habeas remedy—is the appropriate request. (ECF No. 12 at 4–5.)
The parties both have good authority on their side, exposing a question that has received little or no discussion in the case law: What if confinement itself is the unconstitutional "condition of confinement"? Although the question raises many interesting theoretical and philosophical questions, the Court has little time for them under the circumstances. It must adhere to the most on-point, controlling precedent available, while acknowledging that none of the potentially applicable precedents was decided with this precise question in mind. Recognizing that limitation, the Court finds that the Supreme Court's Preiser decision controls here: when a prisoner or detainee "is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." 411 U.S. at 500, 93 S.Ct. 1827. In that light, the Court finds that Essien has properly brought a habeas petition.4
Federal immigration detention is a form of civil (not criminal) detention that must comply with the Fifth Amendment's Due Process Clause. Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). More specifically, the Fifth Amendment requires that the detention be "nonpunitive in purpose and effect." Id. ; cf. Blackmon v. Sutton , 734 F.3d 1237, 1241 (10th Cir. 2013) (...
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