Ndudzi v. Perez
| Decision Date | 29 September 2020 |
| Docket Number | CIVIL ACTION NO. 5:20-CV-108 |
| Citation | 490 F.Supp.3d 1176 |
| Parties | Mariana NDUDZI, Petitioner, v. Orlando PEREZ, et al., Respondents. |
| Court | U.S. District Court — Southern District of Texas |
Brian E. Casey, Pro Hac Vice, Barnes & Thornburg LLP, South Bend, IN, Charles Roth, National Immigrant Justice Center, Chicago, IL, Curtis Francis Doebbler, Refugee and Immigrant Center for Education and Legal Service, San Antonio, TX, for petitioner.
Hector Carlos Ramirez, United States Attorney's Office Southern District of Texas, Laredo, TX, for Respondents.
Before the Court is Petitioner Mariana Ndudzi's ("Petitioner") Emergency Petition for a Writ of Habeas Corpus and Declaratory Relief (Dkt. 1), Respondents' Motion to Dismiss (Dkt. No. 12), and Petitioner's Motion for an Expedited Hearing or Ruling (Dkt. 16). Petitioner is an immigration detainee at the Laredo Detention Center in Laredo, Texas and claims that she risks contracting Covid–19 due to the Detention Center's failure to implement adequate preventative measures for medically vulnerable detainees such as herself. (Dkt. 1 at 4.)1 To safeguard her Fifth Amendment Due Process rights, Petitioner moves the Court to order her release. Id. Considering the petition, the motion to dismiss, the record, and the applicable law, the Court DENIES Petitioner's request and dismisses the petition without prejudice.
On July 7, 2020, Petitioner filed the petition for a writ of habeas corpus against Respondents, claiming that she risks contracting COVID-19 due to the Detention Center's alleged actions and inactions. (Dkt. 1.) On August 12, 2020, Respondents filed their motion to dismiss (Dkt. 12), and Petitioner issued her response in opposition to Respondent's motion to dismiss on August 24, 2020. (Dkt. 13.) On September 8, 2020, Petitioner entered a Notice of Positive COVID-19 cases in the Laredo Processing Center. (Dkt. 14.) Ten days later, on September 18, 2020, Petitioner filed a Motion to Set Hearing or for Expedited Rulings due to her impending deportation. (Dkt. 16.)
Petitioner, an Angolan asylum-seeker fleeing state-sponsored gender violence, has been in Immigration and Customs Enforcement ("ICE") detention for seventeen months. She asserts three claims: (1) a violation of substantive due process under the Fifth Amendment due to the fact and conditions of her confinement; (2) a violation of procedural due process under the Fifth Amendment due to the Government's failure to provide adequate medical care; and (3) a violation of her Fifth Amendment Procedural Due Process rights due to her unconstitutionally prolonged detention. (Dkt. 1 at 59–62.) She seeks the issuance of a writ of habeas corpus and an order for her immediate release from the Detention Center. (Id. at 64.) In addition, she seeks a declaration that Respondents' continued immigration detention of individuals at increased risk for severe illness, including persons of any age with underlying medical conditions that may increase the risk of infection from COVID-19, violates due process. (Id. ) She asks the Court to require ICE to release the individual facility plans mandated under its detention standards that address the management of infectious and communicable diseases
. (Id. ) If the Court decides that immediate release is not appropriate, she seeks release under an alternative to detention, such as an ankle monitor or a declaration that Respondents' conduct is unconstitutional. (Id. at 64–65.)
Principally, Petitioner asserts that she is at a substantial risk of suffering serious harm on account of the Detention Center's failure to adequately mitigate transmission of the novel coronavirus that causes COVID-19. (Dkt. 1 at 6–7.) In particular, Petitioner alleges that the Detention Center has not informed her or other detainees of the pandemic or best practices to prevent transmission; declined to adopt social distancing measures or mandated that all employees wear personal protective equipment, like gloves and masks; failed to provide detainees with adequate amounts of such equipment and cleaning supplies; and failed to adequately sanitize common areas and objects. (Id. at 6.) According to Petitioner, these lackluster attempts to prevent the spread of the novel coronavirus complement the Detention Center's conservative efforts to screen detainees for symptoms, and its inconsistent application of quarantining protocols for symptomatic detainees. (See id. ) Indeed, Petitioner claims that Detention Center staff did not test detainees for the novel coronavirus until one week before she filed her petition. (Id. )
As a result, Petitioner argues that testing rates lag behind the likely rate of transmission and the number of confirmed positive cases likely under-represent the total number of actual cases. (Id. at 7.) And, according to Petitioner, these failings significantly exacerbate her own medical vulnerability: Petitioner suffers from chronic hepatitis
B—a condition that increases her risk of liver disease and, she claims, elevates the likelihood that she will become severely ill if she contracts the virus. (Id. at 8.) Rather than play the odds in the Detention Center, Petitioner seeks release to a church-run hospitality house in San Antonio where, she claims, she will be able to observe standard public health precautions. (Id. )
For their part, Respondents argue that the Court lacks subject matter jurisdiction over Petitioner's claims involving the conditions of her confinement and that, in any event, she failed to state a claim upon which the Court may award relief. (Dkt. 12 at 6.)
In support of their jurisdictional objections, Respondents assert that civil rights actions under 42 U.S.C. § 1983 serve as the appropriate vehicle to challenge the conditions of confinement. By contrast, habeas petitions enable prisoners or detainees to challenge the fact of confinement. (Id. at 7.) Respondents contend that Petitioner is not challenging the cause, legality, duration, or fact of her detention. Instead, Respondents note that Petitioner generally challenges the conditions of her confinement. (Id. )
Respondents further argue that, as is standard for civil rights cases, a favorable determination for Petitioner on her conditions-of-confinement claim would not result in her release but an improvement in the complained-of conditions. (Id. at 16.) Moreover, they assert that converting Petitioner's civil rights claim to a habeas request on account that she seeks release from confinement would collapse the Fifth Circuit's clear distinction between civil rights and habeas remedies. (See id. at 15–16.) Accordingly, Respondents argue that the instant habeas petition should be dismissed for lack of jurisdiction.
Respondents also argue that Petitioner's third claim — that her detention is unconstitutionally prolonged — is premature. (See id. at 19.) Under Respondents' reading of the relevant statutes, case law, and the procedural history of Petitioner's immigration case, the Government enjoys a presumptively valid six-month period to detain Petitioner after her removal order became final. (Id. ) In that vein, Respondents argue that the six-month clock began ticking on July 31, 2020, when the Board of Immigration Appeals ordered Petitioner removed. (Id. at 20.)
In response, Petitioner appears to advance two principal points. Rejecting Respondents' characterization that her health concerns amount to objections to her "conditions of confinement," Petitioner first argues that COVID-19 issues affecting immigration detainees present cognizable habeas claims because they render her confinement itself illegal, especially since immigrants, unlike criminal prisoners, are detained pursuant to civil authority. (See Dkt. No. 13 at 9–11). Second, she claims to challenge the fact of her detention: Because she had been detained for over a year — and beyond a presumptively valid six-month detainment period — her detention was unconstitutionally prolonged before the BIA entered its removal order. (Id. at 15.)
The issues being fully briefed, Petitioner's claim is ripe for ruling. For the reasons stated below, the Court DENIES Petitioner's Emergency Petition for a Writ of Habeas Corpus and Declaratory Relief (Dkt. 1) and GRANTS the Government's Motion to Dismiss (Dkt. 12.)
28 U.S.C. § 2241 provides a district court with jurisdiction over petitions for habeas corpus where a petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). See INS v. St. Cyr , 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (). Pursuant to this statute, the Supreme Court has recognized that a non-citizen may raise "statutory and constitutional challenges to post-removal-period detention" in a habeas corpus proceeding under § 2241. Zadvydas v. Davis , 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Both the Supreme Court and the Fifth Circuit have left as an open question "the reach of the writ with respect to claims of unlawful conditions of confinement or treatment." Boumediene v. Bush , 553 U.S. 723, 797, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) ; Poree v. Collins , 866 F.3d 235, 243–44 (5th Cir. 2017) (). See also Robinson v. Sherrod , 631 F.3d 839, 840 (7th Cir. 2011) (). In this vein, other courts have issued the writ in response to claims related to COVID-19. See, e.g., Dada v. Witte , No. 1:20-CV-00458, 2020 WL 2614616, at *1 (W.D. La. May 22, 2020) (...
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PROTECTING THE SUBSTANTIVE DUE PROCESS RIGHTS OF IMMIGRANT DETAINEES: USING COVID-19 TO CREATE A NEW ANALOGY.
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