Velesaca v. Decker

• Decision Date: 04 May 2020
• Docket Number: 20 Civ. 1803 (AKH)
• Citation: 458 F.Supp.3d 224
• Parties: Jose L. VELESACA and Abraham Carlo Uzategui Navarro, on his own behalf and behalf of others similarly situated, Petitioners-Plaintiffs, v. Thomas R. DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; Matthew Albence, in his official capacity as the Acting Director for U.S. Immigration and Customs Enforcement; United States Immigration and Customs Enforcement; Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; United States Department of Homeland Security; Carl E. Dubois, in his official capacity as the Sheriff of Orange County, Respondents-Defendants.
• Court: U.S. District Court — Southern District of New York

458 F.Supp.3d 224

Jose L. VELESACA and Abraham Carlo Uzategui Navarro, on his own behalf and behalf of others similarly situated, Petitioners-Plaintiffs,

v.Thomas R. DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; Matthew Albence, in his official capacity as the Acting Director for U.S. Immigration and Customs Enforcement; United States Immigration and Customs Enforcement; Chad Wolf, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; United States Department of Homeland Security; Carl E. Dubois, in his official capacity as the Sheriff of Orange County, Respondents-Defendants.

20 Civ. 1803 (AKH)

United States District Court, S.D. New York.

Signed May 4, 2020

Christopher T. Dunn, Megan Sallomi, Robert Andrew Hodgson, Amy Belsher, New York Civil Liberties Union, New York, NY, Jennifer Rolnick Borchetta, Niji Jain, The Bronx Defenders, Bronx, NY, for Plaintiff Jose L. Velesaca.

Robert Andrew Hodgson, New York Civil Liberties Union, New York, NY, for Plaintiff Abraham Carlo Uzategui Navarro.

Brandon Matthew Waterman, United States Attorney's Office, New York, NY, for Defendants.

OPINION & ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

ALVIN K. HELLERSTEIN, U.S.D.J.:

Plaintiffs allege that, since the middle of 2017, the New York Field Office of the United States Immigration and Customs Enforcement ("ICE"), has adopted and implemented an unannounced policy (the "No-Release Policy") of detaining without bond virtually every alien it arrests, even when an arrestee is neither a flight risk nor a danger to the community.¹ Plaintiffs bring this action on behalf of a putative class of persons "eligible to be considered for bond or release on recognizance under 8 U.S.C. § 1226(a)(1)-(2) by ICE's New York Field Office who have been or will be detained without bond."² Stated generally, Plaintiffs contend that the "No-Release Policy" precludes ICE officers from conducting individualized custody determinations, and therefore violates the Immigration and Nationality Act ("INA") and regulations implemented thereunder, the Due Process Clause of the Constitution, the Administrative Procedure Act, and the Rehabilitation Act. Defendants, for their part, principally deny that the No-Release Policy, such as it is described by Plaintiffs, exists.

Now before the Court is Plaintiffs’ motion for a preliminary injunction, seeking, inter alia , that the Court set aside the No-Release Policy and return ICE to its prior practice of conducting individualized custody determinations. Given the nature of the allegations, and the danger to detainees posed by the COVID-19 pandemic, this motion was briefed and heard on an expedited timeline. The operative Complaint was filed on March 16, 2020 and Plaintiffs’ motion for a preliminary injunction was filed that same day. Defendants filed their opposition brief on March 24, and Plaintiffs filed a reply on March 26. On March 31, oral argument was held on the motion telephonically, at which time I extemporaneously delivered my ruling granting Plaintiffs’ motion for injunctive relief. What follows is a formal opinion explaining more fully the Court's reasoning for its oral ruling granting Plaintiffs’ motion.

Background

In this section, I summarize the core allegations made in the Complaint, the evidentiary supplements added by Plaintiffs in their motion for a preliminary injunction papers, the key facts alleged in Defendants’ opposition papers, and the case's procedural history.

A. The Complaint

1. The No-Release Policy

The Complaint alleges that, since in or around the middle of 2017, federal immigration officials in New York City "adopt[ed] what is in effect a blanket policy of denying release and bond across the board" to individuals arrested by ICE authorities. Comp., ECF No. 31, at ¶ 1. Plaintiffs refer to this policy as the "No-Release Policy." See id.

According to Plaintiffs, Defendants’ adoption of the No-Release Policy roughly coincided with other significant changes to ICE's custody-determination protocol. In 2013, for example, ICE began to use a "risk-assessment tool" to assist its officers in making initial custody determinations. Id. at ¶ 18. As initially configured, the tool could recommend any one of four outcomes: (1) release on recognizance; (2) release on bond; (3) defer the custody decision to an ICE supervisor; or (4) detain without bond. See id. In 2015, the Complaint goes on, ICE started to "alter its custody determinations process ..., modifying [the tool] so that it could no longer recommend individuals be given the opportunity for release on bond." Id. at ¶ 20. In mid-2017, ICE "removed the tool's ability to recommend release on recognizance," leaving the tool able to make "only [ ] one substantive recommendation," namely, "detention without bond." Id.

Around the same time ICE made its alleged 2017 modifications to the risk-assessment tool, the Complaint claims that ICE's New York Field Office "doubled down on detention and implemented a blanket policy of denying bond or release without an individualized determination of whether detention was necessary based on flight or safety risks." Id. at ¶ 21. The Complaint urges that the fact of the adoption of the Policy is evident in a simple before-and-after comparison of detentions: In 2013 and 2014, nearly half of all aliens arrested by ICE officials in New York City and deemed by the risk-assessment tool to be of little risk of flight or of endangering the community were released on bond or recognizance; between mid-2017 and September 2019, around 2% of these low-risk individuals were so released. See id. at ¶ 23.

The effects of the No-Release Policy have, according to the Complaint, been exacerbated by two other contextual developments: First, President Trump's Administration's shift toward "arresting people with no criminal history and who have resided in the United States for years," id. at ¶ 24; and second, the fact that the Trump Administration has "vastly expanded its enforcement actions," id. at ¶ 25. Due to the "convergence of these three separate, but related, policy changes, the New York Field Office is now arresting record levels of people and ordering them detained without bond, even though an increasing number of them present no danger to the community or risk of flight." Id. at ¶ 26.

2. The Effects of the No-Release Policy

Those denied release, Plaintiffs continue, must "remain unnecessarily incarcerated in local jails for weeks or even months before they have a meaningful opportunity to seek release in a hearing before an Immigration Judge," or "IJ." Id. at ¶ 3. For many of these detainees, their initial IJ appearance "does not provide a meaningful opportunity to seek bond," as many cannot afford attorneys or meet with a City-sponsored attorney prior to their first hearings, limiting the ability to prepare a bond application until later on. See id. at ¶¶ 29-36. Plaintiffs further allege that once a substantive IJ hearing on bond is held, "approximately 40% of people detained by ICE are granted release on bond," presumably indicating that many who should be eligible for release on bond are denied initial release. Id. at ¶ 3.

The Complaint notes that during the time between detention and the first appearance before an IJ, detainees are separated from their families, friends, communities, and risk losing their children, jobs, and homes. See id. This imposes a variety of harms: (1) the intrinsic harm of separating families, id. at ¶ 38; (2) the threat to those who need medical care, whether physical or mental, but receive inadequate treatment in ICE facilities and/or have one or many preexisting symptoms worsened by detention, id. at ¶¶ 39-45; (3) the limits detention tends to place on the ability to prepare a bond application, e.g. , detention may worsen mental health symptoms that hamper recollection of the traumatic events necessary to presenting an application for bond or withholding of removal, id. at ¶¶ 46-47; and (4) the economic harm to families that are deprived of a primary earner, id. at ¶ 48.

3. The Named Plaintiffs

Named Plaintiffs Jose Velesaca and Abraham Uzategui were arrested by ICE, denied release pursuant to 8 U.S.C. § 1226(a) by ICE's New York Field Office, and are currently detained without bond. See id. at ¶¶ 6-7. As to them, the Complaint alleges the following.

Uzategui, a native of Peru, lives in New York with his wife and daughters. See id. at ¶ 49. He was arrested by ICE on February 18, 2020 and ordered detained without bond; he appeared before an IJ on March 3, 2020, and was given until April 9, 2020, to consult with an attorney to prepare a bond application. See id. at ¶ 50. Uzategui injured his neck, shoulder, and arm, while working as a delivery person in 2018, but, Plaintiffs allege, he has not received the physical therapy and pain medication he needs in ICE detention. See id. at ¶¶ 51-52.

Velesaca, a native of Ecuador, lives in New York with his family. See id. at ¶ 55. He was arrested by ICE on January 30, 2020 and ordered detained without bond; he appeared before an IJ on February 24, 2020, was given until March 2, 2020 (later adjourned to March 4) to consult with his attorney to prepare a bond application, and on March 4, 2020, the IJ denied his request for bond. See id. at ¶ 56. He has another hearing scheduled for March 23, 2020. See id. Velesaca suffers from Posttraumatic Stress Disorder

and Major Depressive Disorder—symptoms include: nervousness, trouble sleeping, and anxiety—from a physical assault he experienced in 2016, which harm has been worsened by his time in detention. See id. at ¶¶ 58-60.

4. The Proposed Class and Requested Injunctive Relief

As indicated supra , Plaintiffs bring this suit on behalf of a class and subclass of detainees. Specifically, the Complaint defines the proposed "Petitioner Class" as follows:

All individuals eligible to be considered for bond or release

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