Toma v. Adducci, Case Number 20-11071
| Decision Date | 31 May 2020 |
| Docket Number | Case Number 20-11071 |
| Parties | MARINA TOMA, Petitioner, v. REBECCA ADDUCCI, Detroit District Director, United States Immigration and Customs Enforcement, MATTHEW T. ALBENCE, Director, United States Immigration and Customs Enforcement, KEVIN MCALEENAN, Secretary of the United States Department of Homeland Security, and WILLIAM P. BARR, United States Attorney General, Respondents. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable David M. Lawson
Petitioner Marina Toma filed an emergency petition for a writ of habeas corpus on May 1, 2020, and four days later filed an emergency motion for a temporary restraining order (TRO). Toma is a 33-year-old Iraqi national who is currently detained by the United States Immigration Customs and Enforcement Agency ("ICE") at the Chippewa Correctional Facility in Sault Ste. Marie, Michigan. She has been in ICE custody since October 8, 2019, scheduled to be removed to Iraq because of her conviction of an "aggravated felony." The Immigration Court granted her petition for withholding of removal under the United Nations Convention Against Torture. The government appealed that decision, and Toma remains in custody while the appeal is pending. She alleges that (1) her continued detention during the coronavirus pandemic violates her Fifth Amendment right to substantive due process by subjecting her to unlawful punishment and unsafe conditions of confinement; and (2) her detention, now in excess of six months, is unconstitutional because she will not be removed in the foreseeable future due to the pandemic and political turmoil in Iraq. The government opposes the petition and the motion for a TRO. Because Toma has not demonstrated a likelihood of success on the merits of her petition, and other relevant factors do not favor her immediate release, the Court will deny her motion for a TRO.
Toma is an Iraqi national who was admitted to the United States as a lawful permanent resident in March 1996 when she was eight years old. She is 33 years old now and normally resides in Macomb County, Michigan. She has made America home, has a three-year-old son in this country (who is living with her mother), and maintains little to no connection with Iraq. Although she has a basic level of Arabic proficiency, she cannot read nor write the language. She does not have an Iraqi passport, travel document, or identity card, and she does not have family in Iraq; they all moved to the United States.
Toma has had several run-ins with local and federal authorities, which resulted in the initiation of removal proceedings at least twice. In April 2010, ICE charged her as removable under 8 U.S.C. § 1227(a)(2)(B)(i) based on a conviction for a state-law controlled substance offense (possession of methamphetamine/ecstasy). However, in August 2010, the Immigration Court granted Toma's application for cancellation of removal under 8 U.S.C. § 1229b(a), which provides a mechanism for cancelling removal proceedings against lawful permanent residents who have resided in the United States and who have not committed any aggravated felonies.
ICE again initiated removal proceedings against Toma in May 2018, while she was in the custody of the Michigan Department of Corrections (MDOC) for a 2018 state conviction for larceny in a building. Because that crime is considered an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(G), ICE charged Toma as removable under 8 U.S.C. § 1227(a)(2)(A)(iii), which subjected her to mandatory detention under 8 U.S.C. § 1226(c)(1)(B).
The MDOC released Toma to ICE custody on October 8, 2019. She was housed first at the Calhoun County Correctional Center in Battle Creek, Michigan, pending resolution of her removal proceedings. Later, she was transferred to Chippewa County Correctional Center in Sault Ste. Marie, Michigan, on December 17, 2019. On March 3, 2020, the Immigration Court granted Toma withholding of removal under the United Nations Convention Against Torture, finding that she faced "a particularized threat of torture to which the Iraqi government either acquiesces or is willfully blind."
The government appealed that decision to the Board of Immigration Appeals (BIA) on April 1, 2020. The appeal renders the Immigration Court's decision non-final, and therefore Toma is still subject to mandatory detention and remains detained at the Chippewa County Correctional Center.
Toma alleges that she is "particularly vulnerable to serious illness or death if infected by COVID-19," because she has "grave underlying medical conditions." She identifies those conditions as having surgical implants (plates and rods) to treat injuries received in a traffic accident several years ago; "blood pressure issues"; and skin rashes, bumps and itching. According to ICE deportation officer Christopher McClain, the detention center's medical records reveal that Toma has received treatment for some of those ailments. They also show that Toma has not reported any symptoms consistent with COVID-19. Upon entering the facility, Toma told medical staff that she suffered from a skin rash and constipation, had rods in her knee and shoulder from a 2013 car accident, and had a diagnosed history of anxiety and depression. She also indicated that she previously used Xanax and Vicodin.
McClain also testified in his declaration that the medical staff at Chippewa were attentive to Toma's needs. On January 28, 2020, Toma complained about hemorrhoid pain, for which staffgave her an ointment. On February 28, 2020, Chippewa staff completed a psychological referral and prescribed anti-depressants. Toma also complained about knee pain at times, for which staff gave her acetaminophen. On April 6, 2020, Toma requested, but then later refused, to see a nurse. She has active medication orders for Triamcinolone cream (for the rash), MiraLAX (for constipation), Claritin (for allergies), acetaminophen (for pain), and Prozac (for depression).
However, Toma insists that "she has been unable to get adequate treatment" for her medical conditions while in ICE custody. She alleges that her knee has recently swollen greatly, becoming a possible source of infection, and despite sending "numerous kites and requests for treatment," Toma "has not received regular treatment from a licensed physician."
On May 1, 2020, Toma filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, seeking release from ICE detention due to the coronavirus pandemic. She then filed a motion for a temporary restraining order on May 5, 2020, asking the Court to order her immediate release. The government filed a timely response to the petition and the motion.
Section 2254 authorizes federal courts to hear petitions for writs of habeas corpus filed by "a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254(a). Because Toma is detained by ICE under federal law, and not by order of a state court, the Court will construe her petition as one filed under 28 U.S.C. § 2241, which applies generally to federal prisoners and detainees. Although Toma's main complaint addresses the conditions of her confinement, normally the subject of a lawsuit under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), see Lutz v. Hemingway, 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007), Toma argues that "the only remedy that will vindicate their due process right under the Fifth Amendment is release from custody," Awshana v. Adducci, --- F. Supp. 3d ---, No. 20-10699, 2020 WL 1808906, at *2 (E.D. Mich. Apr. 9, 2020). The Court, therefore, has jurisdiction to entertain her claim under section 2241, see Perez-Perez v. Adducci, No. 20-10833, 2020 WL 2305276, at *2 (E.D. Mich. May 9, 2020), a proposition that the government does not contest.
Although the petitioner styled her motion as one for a temporary restraining order, she gave notice to the government and did not seek a ruling before the government could respond. Her request should be characterized more properly as a motion for a preliminary injunction. Federal Rule of Civil Procedure 65 governs both. A temporary restraining order (TRO) may be issued without notice to the opponent and is meant to preserve the status quo until a court can make a reasoned resolution of a dispute. Fed. R. Civ. P. 65(b)(1); Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996). TROs are of a short duration and usually terminate with a ruling on a preliminary injunction. Workman v. Bredesen, 486 F.3d 896, 922 (6th Cir. 2007); Fed. R. Civ. P. 65(b). Here, because the defendants are on notice, the Court will treat the petitioner's motion as one for a preliminary injunction rather than a motion for a temporary restraining order. This linguistic difference is largely academic as the same factors apply to both. See Ohio Republican Party v. Brunner, 543 F.3d 357, 362 (6th Cir. 2008).
The petitioner bears the burden of demonstrating entitlement to injunctive relief. Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Generally, courts consider four factors in determining whether to grant a preliminary injunction: "(1) whether the movant has demonstrated a substantial likelihood of success on the merits, (2) whether the movant will suffer irreparable injury absent injunction, (3) whether a preliminary injunction would cause substantial harm to others, and (4) whether the public interest will be served by an injunction." Flight Options, LLC v. Int'l Bhd. of Teamsters, Local 1108, 863 F.3d 529, 540 (6th Cir. 2017) (citing Overstreet v.Lexington-Fayette Urban County Gov't, 305 F.3d 566, 573 (6th Cir. 2002)). "These factors are not prerequisites, but are factors that are to be balanced against each other." Overstreet, 305 F.3d at 573.
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