Hango v. Adducci
| Decision Date | 21 May 2020 |
| Docket Number | CASE NO. 1:19cv00606 |
| Parties | ANDREW HANGO, Petitioner, v. REBECCA ADDUCCI, Field Director, Detroit Field Office, Immigration and Customs Enforcement, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
This matter has been referred to the undersigned United States Magistrate Judge for preparation of a Report and Recommendation pursuant to Local Rule 72.2(b)(2). Before the Court are the Petition of Andrew Hango ("Hango" or "Petitioner"), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 (Doc. No. 1), and Petitioner's Motion, as supplemented, seeking either a Preliminary Injunction directing his release from custody or, in the alternative, an expedited determination of his Habeas Corpus Petition. (Doc. Nos. 32, 33, 35.) Hango is in the custody of the Detroit Field Office of U.S. Immigration and Customs Enforcement ("ICE") at the Seneca County Jail pursuant to 8 U.S.C. § 1231(a)(6). (Doc. No. 1 at 9; Doc. No. 36-1 , Ex. 1, ¶9.) For the reasons set forth below, it is recommended that Petitioner's Motion for Preliminary Injunction, as supplemented, be GRANTED, and the Petition for Habeas Corpus be DISMISSED.
Hango, a citizen of Tanzania, arrived in the United States on a student visa in 1997. (Doc. No. 1 at 3.) He failed to maintain his student status because he did not attend school. (Id.) On September 1, 2001, ICE issued a Notice to Appear, charging Hango as removable from the United States under I.N.A. § 237(a)(1)(C)(i) for failure to maintain his non-immigrant status. (Doc. No. 16-2.) Hango was placed in removal proceedings and, on October 2, 2002, was granted voluntary departure with an alternate order of removal. (Doc. No. 16-3.) When Hango failed to deport voluntarily, the order of removal became effective and enforceable.2 (Id.)
On March 6, 2019,3 Hango appeared at the ICE office in Cleveland, Ohio for a scheduled check in, and ICE took him into custody in order to deport him. (Doc. No. 13 at 3.) He is currently detained by ICE at the Seneca County Jail. (Doc. No. 1 at 9; Doc. No. 36-1 , Ex. 1, ¶9.) On March 19, 2019, Hango filed the Petition for Writ of Habeas Corpus in this case. (Id.) On May 17, 2019,the government of Tanzania issued a travel document for Hango. (Doc. No. 16 at 3.) ICE twice scheduled Hango's deportation, in June 2019 and August 2019, but both times removal was cancelled because Hango had requests for stays of removal in connection with his Writ pending at the Supreme Court. (Id.) On October 7, 2019, the Supreme Court denied Hango's petition for writ of certiorari. (Doc. No. 36-1, ¶ 4.2.) On November 19, 2019, the Supreme Court denied his Petition for Rehearing. (Id.)
ICE again scheduled Hango's removal on November 13, 2019. (Doc. No. 36-1, ¶5.) This third attempt at removal failed because Hango refused to board the plane on which ICE had booked his passage. (Id., Ex. A.) He was issued a Notice of Failure to Comply, pursuant to 8 CFR 241.4(g), which informed him that he would remain in ICE custody "until you demonstrate that you are making reasonable efforts to comply with the order of removal, and that you are cooperating with ICE's efforts to remove you." (Id.)
Hango's removal was rescheduled for February 11, 2020. (Id., ¶6.) This removal was also cancelled because Hango filed his seventh motion to reopen and motion for stay with the Immigration Court, and requested that the Tanzanian government not release his travel document to ICE due to his pending litigation. (Id.)
On February 12, 2020, the Immigration Judge ("IJ") denied Hango's motion to reopen. (Id., ¶7.) The IJ found that Hango repeatedly filed non-meritorious pleadings in the immigration court and other forums, and that Hango's motion was another in the "long line of actions taken to prolong enforcement of his 2002 removal order." (Id.; Ex. B, p. 4.) Hango's travel document has now expired. (Id., Ex. 1, ¶8.) Hango has failed to complete the necessary applications to renew his travel document, and his detention has therefore been extended. (Id., Ex. C.)
ICE is currently detaining Hango at the Seneca County Jail in Tiffin, Ohio. (Id., Ex. 1, ¶9.) He has been receiving medical care there, "including physician visits and continued administration of his prescribed cholesterol and blood pressure medication regimen." (Id.)
COVID-19, or the novel coronavirus disease 2019, "is an infectious disease caused by a newly discovered coronavirus." Coronavirus Overview, World Health Organization, https://www.who.int/health-topics/coronavirus#tab tab_1. (last visited May 19, 2020) ("WHO Coronavirus Overview"). The Centers for Disease Control and Prevention ("CDC") reports that COVID-19 "is spreading very easily and sustainably between people," although it does not spread easily in other ways. How COVID-19 Spreads, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited May 19, 2020). The CDC advises person-to-person spread of COVID-19 can occur (i) between individuals who are in close contact, meaning within about six feet, and (ii) by an infected individual's respiratory droplets produced from sneezing, coughing, or talking. Id. The CDC also warns the virus can be spread by people who are not showing symptoms. Id. However, "[m]ost people infected with the COVID-19 virus will experience mild to moderate respiratory illness and recover without requiring special treatment." WHO Coronavirus Overview.
The CDC has identified certain groups who might be at higher risk for developing severe illness from COVID-19, including"older adults"4 and "people of any age who have seriousunderlying medical conditions."5 People Who Are at Higher Risk for Severe Illness, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last visited May 19, 2020).
On March 9, 2020, Ohio Governor Mike DeWine declared a state of emergency for the entire State of Ohio, "to protect the well-being of the citizens of Ohio from the dangerous effects of COVID-19." Executive Order 2020-01D (March 9, 2020). This action was taken based on three positive COVID-19 tests in Ohio, demonstrating the State's belief that the disease was dangerous even when few cases had been reported. Id.
As of May 19, 2020, the State of Ohio reports 28,952 confirmed or suspected COVID-19 infections, causing 1,720 deaths.6 Prison populations have been particularly vulnerable to the spread of the virus. As of May 19, 2020, the Ohio Department of Corrections ("ODC") had tested 8,014 inmates and 4,527 of those tests were positive for COVID-19.7 However, because Seneca County Jail is not an ODC facility, it has not benefitted from Ohio's broad testing of inmatepopulations. Currently, ICE is detaining 27,908 individuals, and has tested only 2,172 detainees.8 No cases of COVID-19 have been confirmed at the Seneca County Jail.9
In 2014 or 2016, while released on an order of supervision, Hango had a heart attack.10 (Doc. No. 39-2 at PageID#359, 487, 493; Doc. No. 35 at 1; Doc. No. 40 at 3.)
In 2017, while released on an order of supervision, Hango had a stroke.11 (Doc. No. 39-1 at PageID#359, 381, 487, 494; Doc. No. 35 at 1; Doc. No. 40 at 3.)
Since his detention, Hango has received medical care and medication from ICE. His medical care at Seneca County Jail, where he is currently detained, "includ[es] physician visits and continued administration of his prescribed cholesterol and blood pressure medication regimen." (Doc. No. 39, Ex. 2.) Currently, Hango is taking medications to control his blood pressure and high cholesterol, and blood thinners to treat and prevent blood clots. (Id. at 2.)
As of April 17, 2020, there are zero suspected or confirmed cases of COVID-19 at the Seneca County Jail.12 (Id., Ex. 2, ¶16.)
In this case, Hango seeks through Preliminary Injunction the same remedy that he seeks in his underlying habeas petition: release from detention pending his deportation. In both his Habeas Petition and Motions for Preliminary Injunction or Expedited Determination of his Petition, Hango asserts that he should be released from immigration detention because he has been subjected to punitive conditions of confinement and has received insufficient medical care in light of his medical history and the general threat posed by the COVID-19 epidemic.
As a threshold issue, the Respondent asserts Hango lacks standing to assert his claim. One "essential aspect" of the limitations that Article III of the Constitution imposes on federal courts is the requirement "that any person invoking the power of a federal court must demonstrate standing to do so." Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). "To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likel[ihood] that the injury will be redressed by a favorable decision." Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Here, Respondent argues that Hango has failed to establish the first and third of these requirements.
Hango asserts that he "faces imminent health and death challenges," because has a high risk of COVID-19 due to his history of heart disease and a compromised immune system due to hisstroke. (Doc. No. 35 at 2-3, 5.) The record shows that throughout his pre-deportation detention, blood work revealed his cholesterol levels and coagulation assays13 were consistently abnormal, beyond the normal range. (Doc. No. 39-2 at 58-60, 61, 62, 64-66, 99-102, 106, 108-110, 112.)
Respondent contends that Hango lacks standing to seek this Preliminary...
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