Villiers v. Decker
| Citation | 31 F.4th 825 |
| Decision Date | 25 April 2022 |
| Docket Number | Docket No. 20-3437,August Term, 2021 |
| Parties | Rolando Oshane VILLIERS, Petitioner-Appellee, Henry Ferreyra, Jefferson Denizard, Angel Perdomo Perdomo, Remigio Tapia Vilchis, Petitioners, v. Thomas DECKER, in his official capacity as Director of the New York Field Office of U.S. Immigrations & Customs Enforcement, Respondent-Appellant, Alejandro Mayorkas, in his official capacity as Secretary, U.S. Department of Homeland Security, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
BROOKE MENSCHEL, Brooklyn, New York (S. Lucas Marquez, Brooklyn Defender Services, Brooklyn, New York; Eamon P. Joyce, Michael McGuinnes, Sidley Austin, New York, New York, on the brief), for Petitioner-Appellee.
BENJAMIN H. TORRANCE, Assistant United States Attorney, New York, New York (Audrey Strauss, United States Attorney for the Southern District of New York, Talia Kraemer, Assistant United States Attorney, New York, New York, on the brief), for Respondent-Appellant.
Before: KEARSE, LOHIER, and BIANCO, Circuit Judges.
In this habeas corpus proceeding under 28 U.S.C. § 2241 in which the United States District Court for the Southern District of New York, Analisa Torres, Judge , in May 2020 during the height of the COVID-19 public health crisis, issued a preliminary injunction principally requiring Respondent Thomas Decker, Director of the New York Office of the United States Immigration & Customs Enforcement (collectively "ICE") to release petitioner Rolando Oshane Villiers and three other petitioners from immigration detention, the government appeals from an August 2020 order denying its motion to modify or vacate so much of the May 2020 injunction as prohibits ICE from resuming detention of Villiers without court permission. The government sought permission for ICE to re-detain Villiers on the ground that during his release pursuant to the preliminary injunction he has been arrested and charged with several crimes, thereby violating the court-imposed condition that he not commit a crime while on release. The court denied the motion, ruling, inter alia , that that release condition was not violated unless and until, on the new charges, Villiers was actually convicted. The government principally challenges that ruling on appeal. For the reasons that follow, we conclude that the district court erred in ruling that a release condition prohibiting commission of a crime is not violated unless there has been a criminal conviction. We thus vacate the August 2020 order and remand for further proceedings.
Villiers, a native and citizen of Jamaica, was admitted to the United States in November 2017 on a six-month nonimmigrant visa that authorized him to be in the United States until May 27, 2018. He did not depart after that date and has remained in the United States without authorization. In the two years after his arrival, Villiers was arrested by New York City Police Department ("NYPD") officers three times. In November 2019, pursuant to 8 U.S.C. § 1227(a)(1)(B), ICE initiated removal proceedings against him for remaining in the United State longer than permitted by United States law, and detained him pending the outcome of the proceedings. Villiers conceded removability and applied for relief from removal.
Villiers was initially detained by ICE at the Essex County Correctional Facility in Newark, New Jersey ("Essex facility"), and was subsequently transferred to the Bergen County Jail in Hackensack, New Jersey ("Bergen facility"). In April 2020, as COVID-19 developed into a global pandemic and spread rapidly in prisons and jails, Villiers, along with four others who were being detained by ICE at the Essex or Bergen facilities, or at the Orange County Jail in Goshen, New York ("Orange facility"), filed a petition for release pursuant to 28 U.S.C. § 2241. They asserted that conditions at those facilities posed such unreasonable risks to their health as to violate their rights to substantive due process.
The petition alleged, inter alia , that staff and inmates at the Essex, Bergen, and Orange facilities had tested positive for the COVID-19 virus ("COVID"); that the five petitioners, including Villiers, had medical conditions that placed them at high risk of contracting COVID and at high risk of severe complications or death if they did contract COVID; and that ICE was unprepared and unable to protect the health of detainees in its custody. Two days after the petition was filed, ICE agreed to release one petitioner, Remigio Tapia Vilchis. The remaining four (hereinafter the "Petitioners") moved for a temporary restraining order ("TRO") and a preliminary injunction, seeking principally (1) their release from detention during their respective immigration proceedings, and (2) an order prohibiting ICE from resuming their detention during the pendency of those immigration proceedings.
In response to Petitioners' request for a TRO, the government submitted, inter alia , the declaration of an ICE Deportation Officer recounting the circumstances of ICE's arrest and detention of Villiers, and the pending removal proceeding against him (see Declaration of Dare Aniyikaiye submitted April 24, 2020 ("Deportation Officer Decl." or "Declaration"), ¶¶ 2-5, 10-16), and describing a total of 19 charges against Villiers from his three arrests by NYPD in August and October 2018 (id. ¶¶ 6-9). All but one of the final dispositions of those charges were unknown to the Deportation Officer. (See id. ¶¶ 7-9.) The one known disposition was that in November 2019, "Villiers pled guilty in the Kings County Supreme Court to one count of Assault in the Second Degree with Intent to Cause Physical Injury with Weapon/Instrument in violation of NYPL section 120.05(2)," for which he was "sentenced to 364 days of imprisonment and an Order of Protection was entered against him." (Id. ¶ 7.)
The Declaration stated that in his removal proceeding, Villiers conceded the charge of removability and applied for relief from removal, and that his immigration case remains pending. (See id. ¶¶ 12-16.) The Declaration said that, with regard to the present habeas corpus petition, ICE declined to exercise its discretion to release Villiers from detention, having considered all of the circumstances, including "whether [he] could pose a danger to society if released." (Id . ¶ 19.)
Based on the parties' submissions and a telephonic hearing, the district court entered a TRO that (1) ordered ICE and the Essex, Bergen, and Orange facilities to release Petitioners, on conditions to be imposed by the court, and (2) restrained ICE from rearresting them for immigration detention without court permission. See District Court Order dated April 27, 2020 ("2020 TRO"), at 28. The court found that Petitioners had made a sufficient showing that the conditions of confinement at their respective detention facilities posed an unreasonable risk of serious damage to their future health; that they were likely to succeed on the merits of their substantive due process claims that ICE knew or should have known that their medical issues placed them at a higher risk of severe illness or death from COVID-19; and that public health and safety would be best served by rapidly decreasing the number of persons confined in unsafe conditions. See 2020 TRO at 25-27. The court also stated that even if Petitioners had not shown a likelihood of success on the merits of their habeas due process claims, those claims were sufficiently substantial--and the circumstances sufficiently extraordinary--that the court would have exercised its " ‘inherent authority’ " to "release them on bail pending final resolution of their habeas claims." Id. at 27 (quoting Mapp v. Reno , 241 F.3d 221, 226 (2d Cir. 2001) ).
The court ordered ICE to show cause why the TRO should not become a preliminary injunction. See 2020 TRO at 29. Following additional proceedings, the court converted the TRO to a preliminary injunction. See District Court Order dated May 22, 2020 ("Preliminary Injunction"). The court reiterated that "even if Petitioners had not met the requirements for a TRO, the Court would release them on bail ...." Id . at 27.
To the extent material to this appeal, the district court's post-TRO order granting Villiers release from the Bergen facility imposed on him several conditions. Among them, it required him to wear a GPS ankle bracelet allowing electronic monitoring by ICE, and it ordered that while on release he "shall not commit a federal, state, or local crime." District Court Order dated April 27, 2020 ("Villiers Release Order"), at 1. In subsequently granting the Preliminary Injunction, the court ordered that the Petitioners "remain released on the conditions set by the Court" in their respective release orders. Preliminary Injunction at 2; id . at 28 (). The court rejected the government's request that ICE not be restrained from a re-detaining petitioner in the event that he commits another crime, stating that "[p]erhaps those occurrences would warrant an application to the Court for a modification of [the] order," but that the court would not otherwise "pass on the hypothetical circumstances that might allow redetention." Id. at 28 n.13.
The May 2020 Preliminary Injunction, like the TRO, provided that ICE "is RESTRAINED from arresting Petitioners for civil immigration detention purposes unless [it] first obtains the Court's permission." Preliminary Injunction at 2, 28. On July 28, 2020, the government informed the district court that Villiers had been arrested by NYPD on July 27, 2020, in connection with what appeared to be a July 19 domestic violence incident. (See Letter from Assistant United States Attorney ("AUSA") Michael J. Byars to Judge Torres dated ...
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