O.M.G. v. Wolf

• Decision Date: 22 July 2020
• Docket Number: Civil Action No. 20-786 (JEB)
• Citation: 474 F.Supp.3d 274
• Parties: O.M.G., et al., Petitioners, v. Chad WOLF, et al., Respondents.
• Court: U.S. District Court — District of Columbia

474 F.Supp.3d 274

O.M.G., et al., Petitioners,

v.Chad WOLF, et al., Respondents.

Civil Action No. 20-786 (JEB)

United States District Court, District of Columbia.

Signed July 22, 2020

Manoj Govindaiah, Curtis F.J. Doebbler, Raices, San Antonio, TX, Susan Baker Manning, Morgan, Lewis & Bockius LLP, Washington, DC, Amy Maldonado, Pro Hac Vice, Law Office of Amy Maldonado, East Lansing, MI, Karon Nicole Fowler, Maria Doukas, Sanjay Krishna Murthy, Michael Sikora, Morgan, Lewis & Bockius LLP, Chicago, IL, Sarah Telo Gillman, Gregory P. Copeland, Rapid Defense Network, New York, NY, for Petitioners C.L., A. Minor, A.H.R., N.V., R.S.J., G.A.Q., N.M.L., M.R.A., J.S.P., K.N.E., K.P.P., M.C.M., C.C.G., S.J.A., O.T.G., M.J.P., J.C., A.C.O., M., M.A, J.M.R., F., R.P, M.R.C., H., M.A, R.M., A.R., T.F., A.G.V., A.M.G., G.R.D., B.N.P., A.A.G., L.M.V.

Amy Maldonado, Pro Hac Vice, Law Office of Amy Maldonado, East Lansing, MI, Susan Baker Manning, Morgan, Lewis & Bockius LLP, Washington, DC, for Petitioner All Petitioners.

Daniel Franklin Van Horn, U.S. Attorney's Office for the District of Columbia, Vanessa Molina, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondents.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge While the COVID-19 pandemic has disrupted lives throughout our country, in few places has it proved more contagious than in congregate settings like prisons or detention centers. This case concerns three such settings known as family residential centers (FRCs), communal immigration-detention facilities reserved exclusively for migrant families. Petitioners are over 200 detainees currently held at the three FRCs, two of which are located in Texas and the third in Pennsylvania. They assert that the dangers posed by the ongoing pandemic render the conditions of their confinement at the FRCs a violation of their due-process rights under the Fifth Amendment. Specifically, Petitioners argue that Immigration and Customs Enforcement has failed to effectively implement basic protective measures such as masking and social distancing.

At the outset of this litigation, Petitioners’ central focus was on securing improvements in such conditions; now, they seek wholesale release from ICE confinement, and they urge this Court to grant a preliminary injunction to that effect. In parallel proceedings, another federal court — applying a longstanding consent decree, not the Due Process Clause — recently ordered the release of all minors who have been detained at an FRC for longer than twenty days. See Flores v. Barr, No. 85-4544, 2020 WL 3488040, at *1–2 (C.D. Cal. June 26, 2020). Many Petitioners are minors who qualify. As a practical matter, then, Petitioners’ request for release pertains principally to the adults among them.

The Preliminary Injunction Motion presents difficult legal questions and turns on disputed factual allegations about what is actually taking place inside the FRCs. At this point, however, the Court need not untangle those knots. Even assuming the conditions of Petitioners’ confinement violate their due-process rights, they have not yet clearly shown that they are entitled to the extraordinary remedy of blanket release from immigration detention. The Court will accordingly deny their Motion.

I. Background

A. Family Residential Centers

Petitioners number over 200 of the 300-plus noncitizen parents and children who are currently detained in the three ICE FRCs: the Berks County Residential Center in Leesport, Pennsylvania (Berks); the South Texas Family Residential Center in Dilley, Texas (Dilley); and the Karnes County Family Residential Center in Karnes City, Texas (Karnes). See ECF No. 1 (Mandamus Pet.), ¶ 2. Each facility exclusively holds migrant families, and each ordinarily operates as a congregate-care facility with communal sleeping quarters, bathrooms, dining rooms, and recreational areas. See ECF No. 1-2 (Declaration of Bridget Cambria), ¶¶ 14–15; ECF No. 1-4 (Declaration of Shalyn Fluharty), ¶¶ 6, 12–13; ECF No. 1-7 (Declaration of Andrea Meza), ¶¶ 7, 35. Dilley and Karnes can hold 2,400 and 830 individuals, respectively. See ECF No. 39-2 (Declaration of Michael Sheridan), ¶¶ 7, 31. Berks is a much smaller facility, able to house only 96. See ECF No. 39-3 (Declaration of Christopher George), ¶ 4.

Detainees at the Berks, Dilley, and Karnes FRCs fall into three basic categories regarding their immigration status. As of late April, more than half were subject to final orders of removal and were awaiting removal, see ECF No. 51-1 (April 22 Supplemental Declaration of Melissa B. Harper), ¶ 5, although some such orders are subject to judicial or administrative stays. See ECF No. 51-3 (April 22 Declaration of Christopher George), ¶ 50; ECF No. 78-9 (Supplemental Declaration of Shalyn Fluharty), ¶ 17. About a third of detainees had been processed for expedited removal and were undergoing credible- or reasonable-fear determinations to determine their eligibility for asylum. See Apr. 22 Harper Suppl. Decl., ¶ 5. The remaining few were pending formal removal proceedings under section 240 of the INA. Id. These numbers may well have shifted some in the past few months, as the detainee population is constantly in flux. See, e.g., ECF No. 94-1 (July 20 Supplemental Declaration of Melissa B. Harper), ¶¶ 4–6 (reporting intake of 262 new detainees and release of 145 detainees from July 1 to July 20, 2020).

B. This Litigation

In March of this year, communities across the United States began to experience outbreaks of an infectious disease known as COVID-19, caused by a novel coronavirus known as SARS-CoV-2. See ECF No. 1-12 (Declaration of Dr. Ronald Jay Waldman), ¶ 4. The Centers for Disease Control and Prevention reports that COVID-19 is spread mainly via close contact between persons and through respiratory droplets produced when an infected person talks, coughs

, or sneezes. See CDC, Coronavirus Disease 2019 (COVID-19), Protect Yourself, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited July 19, 2020). Infected persons are likely capable of spreading the disease despite showing no symptoms. Id. It does not take a medical degree to recognize that congregate detention facilities like FRCs "are difficult environments in which to prevent the spread of a dangerous contagion like COVID-19." C.G.B. v. Wolf, No. 20-1072, 464 F.Supp.3d 174, 186–87, (D.D.C. June 2, 2020).

On March 21, 2020, understandably fearful of the arrival of the virus at their facilities, Petitioners filed this action challenging the conditions of their confinement. That same day, they sought a Temporary Restraining Order compelling ICE to implement COVID-19 safety protocols at the FRCs and, if preventive measures were not possible, to release them from detention. See ECF No. 4 (TRO Mot.) at 1, 29. On March 30, after a telephonic hearing, the Court granted in part and denied in part the Motion, declining to order release but requiring ICE to implement protocols consistent with CDC guidance for congregate detention facilities. See Min. Order (Mar. 30, 2020). Believing these measures insufficient, Petitioners now seek a preliminary injunction ordering their release. See ECF No. 78 (PI Mot.).

C. Other Relevant Cases

The instant action, perhaps not surprisingly, is not the only one covering FRC detainees. Judge Dolly M. Gee of the U.S. District Court for the Central District of California oversees a class action that long ago resulted in a consent decree, known as the Flores Settlement Agreement (FSA), providing certain rights to all minors detained at FRCs. See Flores v. Barr, No. 85-4544, 2020 WL 2128663 (C.D. Cal. Mar. 28, 2020). Specifically, the FSA provides that minors shall be held "in facilities that are safe and sanitary," FSA, ¶ 12.A, and that "[w]here [the government] determines that the detention of the minor is not required either to secure his or her timely appearance [in immigration proceedings], or to ensure the minor's safety or that of others, the [government] shall release a minor from its custody without unnecessary delay." FSA, ¶ 14. In March of this year, the Flores plaintiffs argued to Judge Gee that ICE's pandemic response at the FRCs was in breach of its contractual obligations to release minors "without unnecessary delay" and to provide "safe and sanitary" conditions. See Flores, 2020 WL 2128663, at *3. The plaintiffs sought a TRO ordering the prompt release of most minors and requiring ICE to implement public-health strategies recommended by the CDC for congregate detention facilities. Id.

On March 28, Judge Gee granted the motion in part and denied it in part. She found that although ICE had been "laggardly in its early response" to the COVID-19 threat, it had begun implementing CDC guidance for detention facilities. Id. at *6. She ordered ICE to report to a court-appointed Monitor on its current capacity and the status of its compliance with CDC recommendations. Id. at * 9. She declined, however, to order any minor's release by a date certain, instead ordering ICE to "make every effort to promptly and safely release" minors. Id. at *10 ; see also Flores v. Barr, No 85-4544, 2020 WL 2758792, at *12–14 (C.D. Cal. Apr. 24, 2020) ; id., 2020 WL 2758795, at *2 (C.D. Cal. May 22, 2020).

On June 26, however, Judge Gee changed course. She stated that she "appreciate[d] ... ICE's ... efforts," which are described below, "to reduce the number of [minors] in [its] custody during the pandemic." Id., 2020 WL 3488040, at *1 (C.D. Cal. June 26, 2020). But Judge Gee noted that, according to the plaintiffs and the Independent Monitor, ICE had "fail[ed] to implement best public health practices." Id. at *2. She specifically cited the Monitor's "observations of non-compliance or spotty compliance with masking and social distancing rules." Id. Based on those observations, the court decided that ICE's adherence to its contractual obligations — namely, to...