Hernandez v. Mora

• Decision Date: 15 June 2020
• Docket Number: No. 1:20-CV-00104-H,1:20-CV-00104-H
• Citation: 467 F.Supp.3d 454
• Parties: Jose Roberto CURENO HERNANDEZ, Petitioner, v. Steve MORA, et al., Respondents.
• Court: U.S. District Court — Northern District of Texas

467 F.Supp.3d 454

Jose Roberto CURENO HERNANDEZ, Petitioner,

v.Steve MORA, et al., Respondents.

No. 1:20-CV-00104-H

United States District Court, N.D. Texas, Abilene Division.

Signed June 15, 2020

Katrina Gallagher Eash, Winston & Strawn LLP, Dallas, TX, Ruben Loyo, Pro Hac Vice, National Immigrant Justice Center, Chicago, IL, Walter M. Berger, Pro Hac Vice, Winston & Strawn LLP, Houston, TX, for Petitioner.

Ann Cruce-Haag, US Attorney's Office, Lubbock, TX, for Respondents.

ORDER

JAMES WESLEY HENDRIX, United States District Judge

Petitioner Jose Roberto Cureno Hernandez, an immigration detainee proceeding with the assistance of counsel, filed an emergency petition for a writ of habeas corpus under 28 U.S.C. § 2241. He raises two independent grounds for relief, asserting that each entitles him to immediate release. First, and more urgently, Petitioner argues that the ongoing COVID-19 pandemic—and Respondents' alleged inadequate response to the pandemic—have created unconstitutional conditions of confinement at the Bluebonnet Detention Center (BBDC). Second, Petitioner argues that the mandatory-detention provision of 8 U.S.C. § 1226(c) is unconstitutional as applied to him because his two-year detention is so long that it constitutes a violation of his Fifth Amendment right to due process.

The Court ordered expedited briefing, which is now complete. To expedite a decision on the COVID-19 issue, the Court will address Petitioner's two grounds for relief separately. The Court addresses only the conditions-of-confinement claim in this order. As explained below, the Court finds that Petitioner's first ground for relief is not cognizable under Section 2241 and must be dismissed for lack of subject-matter jurisdiction. His second ground for relief remains pending, and the Court will address it by separate order in due course.

1. Background

Petitioner is a 41-year-old native and citizen of Mexico who is detained in the custody of Immigration and Customs Enforcement (ICE) while his removal proceedings are pending. He is currently confined in the BBDC in Anson, Texas.

A. COVID-19 and Petitioner's Health Conditions

The World Health Organization declared that the new coronavirus outbreak (COVID-19) qualified as a global pandemic nearly three months ago.¹ Courts have recognized that the pandemic "presents an extraordinary and unique public-health risk to society," which has required "unprecedented protective measures" by local, state, and national governmental authorities to limit the spread of the virus. Sacal-Micha v. Longoria , 449 F. Supp. 3d 656, 665–66 (S.D. Tex. Mar. 27, 2020). New information about the virus is published daily as research quickly develops.

Based on the information available now, the Centers for Disease Control (CDC) recommends that individuals practice social distancing and wear masks. Recent guidance from the CDC says that "[b]ased on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19."²

Here, it is undisputed that Petitioner has no chronic medical issues. And his age does not place him in the category of "older adults" considered by the CDC to be at heightened risk for the disease.³ Nevertheless, Petitioner states that he "has smoked a few cigarettes a day since he was young, and he is worried that the side effects of smoking will make him more susceptible to complications" if he contracts COVID-19. (Dkt. No. 1 at ¶ 44.)

B. Petitioner's Allegations Regarding the BBDC

The virus has significantly impacted the BBDC. When Petitioner filed his emergency petition, there were 42 confirmed cases at the BBDC. (Dkt. No. 1 at 12.) Ten days later, there were 111 confirmed cases, including about 80 detainees who had recovered from the illness. (Dkt. No. 5 at 4.) The number of total confirmed cases rose to 132 within another ten days. (Dkt. No. 10 at 8.) Thankfully, more than a week later, only three new cases have been reported.⁴ And fortunately, no detainees at the BBDC have died after testing positive for COVID-19.⁵

Most of Petitioner's specific factual allegations about the conditions at the BBDC are described in his unsworn declaration under 28 U.S.C. § 1746, which he signed on May 7, 2020. Petitioner claims that the conditions at the BBDC do not allow for proper social distancing. (Dkt. No. 1 at 11.) He alleges that his dorm is at full capacity—that all 52 bunkbeds are occupied. He states that the beds are only 1-1.5 meters apart. (Dkt. No. 1-1 at 2, ¶ 4.) So, he claims that when he is in his bunk, he is unable to remain a safe distance away from the other men in his dorm. He also claims that the detainees all eat together and that there is not enough space to properly distance themselves in line or while they sit to eat. (Id. )

Petitioner alleges that the BBDC has not provided adequate cleaning supplies or personal protective equipment (PPE). (Dkt. No. 1 at 10–12.) He says that the detainees all have access to hand soap and body soap in the bathrooms, but that the soap sometimes runs out. (Dkt. No. 1-1 at 3, ¶ 12.) He also states that, although he has access to gloves and hand sanitizer because of his work assignment, those items are not permitted for the general population. (Dkt. No. 1-1 at 3, ¶ 11.) He acknowledges that his dormitory is regularly cleaned, and that both the bathrooms and the dining area are cleaned three times a day. (Dkt. No. 1-1 at 3, ¶ 8.) Petitioner alleges that each detainee is provided with one face mask, which can only be laundered on certain days. (Dkt. No. 1-1 at 3, ¶ 10.) He does not have a back-up mask to wear while his mask is being washed. (Id. )

Finally, Petitioner alleges that the BBDC is not providing adequate medical screening or care. (Dkt. No. 1-1 at 4, ¶ 15.) He admits that nurses come to his dorm three times a day to respond to medical requests, but he asserts that "there do not seem to be many people" available if a detainee "get[s] really sick." (Id. ; see also Dkt. No. 1 at 13, ¶ 45.) He alleges that he felt ill with a sore throat and a cough

about a week before he filed his petition. (Dkt. No. 1-1 at 3–4, ¶ 14.) He put in a request for medical attention and received Tylenol and cough syrup. (Id. ) He was no longer feeling ill when he filed the petition. (Id. ) Petitioner had not been tested for COVID-19 when he filed his petition. (Id. )

C. Respondents' Answer

Respondents dispute several of Petitioner's assertions. In support of their contentions, Respondents submitted the declaration of Miguel Vergara, the Assistant Field Office Director for ICE at the BBDC. (Dkt. No. 5 at 3-6.) Vergara's declaration, signed May 21, 2020, describes the steps taken by ICE and the BBDC generally to protect the safety of the detainees and staff at the BBDC, and specifically to protect Petitioner. (Id. at ¶ 7.)

Respondents state that the BBDC currently houses 423 detainees—a little over half of their total capacity of 750. (Id. at ¶ 10.) They allege that Petitioner's dorm has 56 beds, but it is far from full. (Id. at ¶ 22.) In fact, only nine other detainees live in Petitioner's dorm, which allows them to maintain safe distancing. (Id. ) Vergara's declaration says that each detainee at the BBDC was given two cloth and two surgical masks. (Dkt. No. 5 at 5, ¶ 18.) Additionally, all officers were given surgical masks, N-95 masks, or both. (Id. )

Respondents assert that due to the pandemic, meals are brought to detainees in their dormitory. (Dkt. No. 5 at 5, ¶ 14.) Additionally, they allege that proper PPE is worn by staff while the food is prepared and served. (Id. ) Detainees who have tested positive for COVID-19 are served food in Styrofoam plates with disposable utensils. (Id. )

According to Respondents, all detainees now have access to cleaning solutions to clean their personal space in addition to regular cleaning by the dorm porters. (Dkt. No. 5 at 5, ¶ 15.) The BBDC uses a bleach-based solution to clean dorms and other spaces. (Id. ) In non-dormitory areas like the teleconferencing room used for court hearings, BBDC employees apply the bleach-based solution to all hard surfaces after each group leaves and before a new group enters. (Id. ) A detainee may ask the officers to apply the bleach-based cleaner to surfaces or items as desired. (Id. )

Vergara describes diligent efforts by staff and detainees to maintain a distance of at least six feet apart with all parties wearing masks unless a medical procedure requires closer contact. (Dkt. No. 5 at 5–6, ¶ 19.) He explains that there are informational posters about proper hygiene and COVID-19 related procedures in each the dormitories and attaches a copy of the materials posted in Petitioner's dormitory. (Dkt. No. 5 at 6, ¶ 21.)

Detainees who have tested positive for COVID-19 are isolated in dorms and separated from all other detainees. (Dkt. No. 5 at 4–5, ¶ 12.) He explains the safeguards in place to prevent cross-contamination between dormitories. (Dkt. No. 5 at 5, ¶ 13.) Vergara states that Petitioner was tested for COVID-19 on May 14, 2020 and received a negative result on May 17, 2020. (Dkt. No. 5 at 4–5, ¶ 12.) He is housed with other detainees who have tested negative for the virus and will have no contact with detainees who have tested positive. (Id. )

On the merits, Respondents argue that Petitioner's conditions-of-confinement claim is not cognizable in a petition for writ of habeas corpus. Additionally, they argue that even if the Court had jurisdiction over Petitioner's conditions-of-confinement claim, he does not describe conditions that violate the Constitution.

In his reply, Petitioner does not specifically rebut any of the facts alleged in Vergara's declaration, but he asserts generally that "Respondents' characterization of these conditions is simply wrong." (Dkt. No. 10 at 7). He argues that the number of cases at the BBDC is proof that the conditions are unconstitutional and that the...