Ferreyra v. Decker

Decision Date27 April 2020
Docket Number20 Civ. 3170 (AT)
Parties Henry FERREYRA, Jefferson Denizard, Angel Perdomo Perdomo, Rolando Oshane Villiers, Remigio Tapia Vilchis, Petitioners, v. Thomas DECKER, in his official capacity as Director of the New York Field Office of U.S. Immigration and Customs Enforcement; and Chad Wolf, in his official capacity as Acting Secretary, U.S. Department of Homeland Security, Respondents.
CourtU.S. District Court — Southern District of New York

Mary Sameera Van Houten Harper, Brooke Menschel, Sonia Marquez, Brooklyn Defender Services, Brooklyn, NY, for Petitioners.

Talia Kraemer, U.S. Attorney's Office, New York, NY, for Respondents.

ORDER

ANALISA TORRES, District Judge:

Petitioners Henry Ferreyra, Jefferson Denizard, Angel Perdomo Perdomo, and Rolando Oshane Villiers are currently detained by Immigration and Customs Enforcement ("ICE") in county jails where cases of COVID-19 have been identified.1 Petition ¶¶ 6–9, ECF No. 1. Petitioners filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, requesting release from ICE custody because of the public health crisis posed by COVID-19. See id.

On April 23, 2020, Petitioners moved for a temporary restraining order ("TRO")2 requiring RespondentsThomas Decker, as Director of the New York Field Office of ICE and Chad Wolf, as Acting Secretary of the U.S. Department of Homeland Security—to (1) immediately release Petitioners from detention, subject to reasonable conditions, and (2) refrain from arresting Petitioners during the pendency of their immigration proceedings, in light of the public health crisis posed by COVID-19. See TRO Mot. at 1–2, ECF No. 4.

For the reasons stated below, the TRO is GRANTED as follows: (1) Respondents and the Bergen, Essex, and Orange County Correctional Facilities are ORDERED to release Petitioners upon satisfaction of conditions to be imposed by the Court, and (2) Respondents are RESTRAINED from arresting Petitioners for civil immigration detention purposes until further order of the Court.

BACKGROUND

Petitioners were detained by ICE in connection with removal proceedings. See Petition ¶ 18. They are housed in two New Jersey and one New York county jails where either detainees or staff have tested positive for COVID-19. Petition ¶ 2; TRO Mem. at 1. Specifically, Ferreyra and Villiers are detained at the Bergen County Correctional Facility ("Bergen County Jail"). Petition ¶¶ 6, 9. Perdomo Perdomo is detained at the Essex County Correctional Facility ("Essex County Jail"). Id. ¶ 8. And Denizard is detained at the Orange County Correctional Facility ("Orange County Jail"). Id. ¶ 7. Ferreyra, Perdomo Perdomo, and Villiers were detained in connection with removal proceedings pending at the Varick Street Immigration Court. Id. ¶¶ 6, 8, 9.

Each Petitioner suffers from chronic medical conditions, and faces an imminent risk of serious injury or death if exposed to COVID-19. Ferreyra, who has smoked for almost four decades, is 53 years old, and suffers from asthma

, emphysema, and diabetes. Id. ¶ 6. Additionally, he has been diagnosed with severe psychiatric conditions, including schizophrenia, chronic post-traumatic stress disorder ("PTSD"), major depressive disorder, episodic paroxysmal anxiety, and anxiety disorder. Id. Denizard, age 27 and a daily smoker, has diminished lung capacity, shortness of breath during any type of physical activity, and a compromised immune system; he also suffers from severe chronic pain. Id. ¶ 7. At 50, Perdomo Perdomo is a long-time smoker and suffers from deformities of the nose, inflammation of the lungs, problems with his prostate gland, and possible cirrhosis of the liver. Id. ¶ 8. In 2017, he was hit by a vehicle and had to undergo brain surgery to alleviate swelling. As a result, Perdomo Perdomo has "extremely low cognitive functioning," which makes conforming with social distancing and other preventive measures challenging. Id. Villiers is 24 and suffers from asthma. Id. ¶ 9. He was initially detained at the Essex County Jail and then transferred to the Bergen County Jail, where he is currently housed. Id. Though he was previously prescribed an inhaler, it was taken from him at the Bergen County Jail, and he is now experiencing shortness of breath. Id.

At 2:00 p.m. on April 24, 2020, the Court held a telephonic hearing on Petitioners’ request for a TRO. The Court now addresses, in turn, the issues of severance, venue, and Petitioners’ request for a TRO.

DISCUSSION
I. Severance

Respondents argue that the petition should be severed into separate habeas actions. Resp. Opp. at 16–19, ECF No. 7. The Court disagrees.

First, severance is inappropriate given the equities and the time the Court has already devoted to considering the parties’ submissions. See Valenzuela Arias v. Decker , No. 20 Civ. 2802, ––– F.Supp.3d ––––, –––– – ––––, 2020 WL 1847986, at *2–3 (S.D.N.Y. Apr. 10, 2020) (denying respondentsmotion to sever at the TRO stage to conserve judicial economy, among other considerations); Coronel v. Decker , 20 Civ. 2472, 449 F.Supp.3d 274, 280 (S.D.N.Y. Mar. 27, 2020) ("Considerations of judicial economy—the [c]ourt has already read and digested the record and heard lengthy oral argument on this motion—and the urgent need to timely decide [p]etitioners’ motion for a temporary restraining order in light of the immediate risk to the health of the [p]etitioners counsel against severance at this juncture."); see also Basank v. Decker , No. 20 Civ. 2518, ––– F.Supp.3d ––––, ––––, 2020 WL 1953847, at *3 (S.D.N.Y. Apr. 23, 2020) (denying respondentsrequest to sever a similar action brought by petitioner-detainees); Coronel , 20 Civ. 2472, ECF No. 35 at 3 (S.D.N.Y. Apr. 1 2020) (denying without prejudice respondentsmotion to sever the joint petition after receiving further briefing).

Second, a single habeas action is merited because this matter is "uncluttered by subsidiary issues." United States ex rel. Sero v. Preiser , 506 F.2d 1115, 1125–26 (2d Cir. 1974). In Sero , the Second Circuit considered a proposed habeas corpus class action brought by young adult misdemeanants (ages 16 to 21), on behalf of themselves and all others similarly situated, who were serving a reformatory sentence in excess of the adult penalty for the same misdemeanor. Id. at 1119. The court of appeals held that a "multi-party proceeding similar to the class action authorized by [ Rule 23 of the Federal Rules] of Civil Procedure" was permissible, because the judiciary has the inherent authority under the All Writs Act, 28 U.S.C. § 1651, to fashion "expeditious methods of procedure in a specific case." Id. at 1125 (citing Harris v. Nelson , 394 U.S. 286, 294, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969) ); see also Bertrand v. Sava , 684 F.2d 204, 219 (2d Cir. 1982) (finding no error in the district court's decision to "certify a [habeas] class of ‘all Haitian aliens transferred from [an Immigration and Naturalization Service facility] ..., who have requested political asylum and parole, but have remained in respondent's custody’ " (citation omitted)).

Here, the health risks posed by COVID-19 and the constitutional claims presented do not turn on facts unique to each Petitioner beyond their having preexisting conditions that make them vulnerable to the virus. Cf. Bob v. Decker , No. 19 Civ. 8226, ECF No. 4 at 3 (S.D.N.Y. Oct. 15, 2019) (requiring three pro se petitioners to proceed in three separate habeas actions, because the petitioners each alleged that they were denied a different type of medical care). Rather, Petitioners raise almost identical questions of law and fact, including whether Respondents are adequately protecting Petitioners from contracting COVID-19, whether Respondents are deliberately indifferent to Petitioners’ medical needs, and whether release from detention is justified under these circumstances. See Petition.

Third, Petitioners allege shared harms, including the alleged systemic failure of Respondents to identify and protect individuals in immigration detention at the Bergen, Essex, and Orange County Jails who are at high risk of complications from COVID-19. The extraordinary circumstance of the COVID-19 crisis warrants a multi-party habeas petition permitting expeditious resolution of the claims before the Court.

The Court concludes, therefore, that considerations of "judicial economy and fairness argue persuasively for the construction of a procedure" such as this multi-party habeas action, where Petitioners "shar[e] certain complaints about the legality" of their confinement. Bertrand v. Sava , 535 F. Supp. 1020, 1024 (S.D.N.Y. 1982) (citations omitted), rev'd on other grounds , 684 F.2d 204 (2d Cir. 1982) ; see also id. at 1024–25 ("Such initiative and flexibility are essential to modern use of the writ [of habeas corpus] in order to cut through barriers of form and insure that miscarriages of justice are corrected.").

Accordingly, Respondentsrequest to sever the action into five individual habeas petitions is DENIED.

II. Venue

Respondents argue that they are not properly named in the petition, because although Petitioners are detained at the command and under the authority of Respondents, Respondents have contracted with state facilities to hold them. Resp. Opp. at 19–20. 28 U.S.C. § 2242 provides that an application for a writ of habeas corpus should be directed to "the person who has custody over [the applicant]." See also 28 U.S.C. § 2243 ("The writ, or order to show cause shall be directed to the person having custody of the person detained."). The Supreme Court has held that in challenges to detention, therefore, the proper respondent is the "person who has the immediate custody of the party detained, with the power to produce the body of [petitioner] before the court or judge." Rumsfeld v. Padilla , 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (internal quotation marks and citation omitted). Respondents contend that Petitioners’ immediate custodians are the respective wardens of...

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