Yearwood v. Barr

• Decision Date: 30 July 2019
• Docket Number: 19-cv-4709 (JGK)
• Citation: 391 F.Supp.3d 255
• Parties: Andrew YEARWOOD, Petitioner, v. William BARR, in his official capacity as the Attorney General of the United States, et al., Respondents.
• Court: U.S. District Court — Southern District of New York

391 F.Supp.3d 255

Andrew YEARWOOD, Petitioner,

v.William BARR, in his official capacity as the Attorney General of the United States, et al., Respondents.

19-cv-4709 (JGK)

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

Signed July 30, 2019

I Gregory Paul Copeland, Sarah Telo Gillman, Rapid Defense Network, New York, NY, for Petitioner.

Jeffrey Stuart Oestericher, Michael James Byars, New York, NY, for Respondents.

MEMORANDUM OPINION AND ORDER

John G. Koeltl, United States District Judge

This case concerns alleged legal and constitutional errors that the petitioner, Andrew Yearwood, claims occurred when Immigrations and Customs Enforcement ("ICE") agents removed him from the United States to St. Vincent and the Grenadines ("St. Vincent") on May 22, 2019. The petitioner brings this petition for a writ of habeas corpus under 28 U.S.C. §§ 1331, 2241 ; Article I, § 9, cl. 2 of the United States Constitution ; and the All Writs Act, 28 U.S.C. § 1651. The petitioner alleges violations of his Fifth Amendment procedural and substantive due process rights, his right to meaningful access to the courts, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701.

The petitioner asks the Court to order that the respondents send a team of physicians to St. Vincent to evaluate the petitioner and to return the petitioner to the United States in a manner that is approved by a team of cardiovascular specialists, including a doctor identified by the petitioner. If returned to the United States, the petitioner asks that the Court enjoin the respondents from placing the petitioner in immigration detention or from placing any other restrictions on the petitioner's liberty that would prevent him from accessing medical care, and further enjoin the respondents from removing the petitioner during the pendency of any appeals that follow from a decision on this habeas petition. The petitioner also seeks a declaration that the respondents' actions violated the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act.¹

I.

The following facts are taken from the amended petition and the sworn declarations of the parties.

The petitioner is a fifty-three-year-old father who was born in St. Vincent. Am. Pet. ¶ 53. The petitioner was admitted to the United States as a B2 non-immigrant visitor on February 13, 1991, with permission to remain in the United States until August 12, 1991. Hernandez Decl. ¶¶ 3, 4. The petitioner remained in the United States beyond that date without permission. Id. ¶ 4.

On March 4, 1997, the petitioner was convicted in the New York State Supreme Court, Kings County, of Attempted Criminal Possession of a Weapon in the Third Degree in violation of N.Y. Penal Law § 110- 265.02(1). Hernandez Decl. ¶ 5. On April 14, 2018, the petitioner was arrested at his home by ICE officers and placed in immigration detention at the Bergen County Jail in Hackensack, New Jersey. Am. Pet. ¶¶ 55-56. On August 30, 2018, an immigration judge issued an order of removal against the petitioner, which was affirmed by the Board of Immigration Appeals on January 17, 2019. Id. ¶ 57. On May 1, 2019, the petitioner received a notice from ICE that ICE had reviewed his custody status and that the petitioner would remain in immigration detention. Id. ¶ 58.

The petitioner suffers from chronic heart disease

and related medical conditions. Id. ¶ 59. In 2008, the petitioner suffered a myocardial infarction, which required heart surgery. Id. ¶ 60. Since that incident, the petitioner has received ongoing care from a licensed cardiologist, Dr. Bandari. Id. Before his detention, Dr. Bandari diagnosed the petitioner with several serious cardiovascular conditions including coronary artery disease, hypertension, hyperlipidemia, and venous reflux in bilateral great saphenous veins and right small saphenous vein. Id. ¶ 61.

At the time that the respondents detained the petitioner, the petitioner was prescribed five heart and blood pressure medications. Id. ¶ 65. Dr. Bandari provided a letter to ICE stating that the petitioner must be evaluated by Dr. Bandari before any adjustments were made to the petitioner's medications. Id. Over the course of the petitioner's detention, the number of medications prescribed to him increased from five to fourteen. Id. ¶ 66. However, the petitioner was not seen by a cardiologist until he had been in detention for four months. Id. ¶ 67. While in detention, the petitioner had to visit the infirmary multiple times and he was taken to the emergency room at Hackensack Medical Center twice for chest pain and palpitations. Id. ¶ 68.

Dr. Pendyal, a physician who examined the petitioner's medical records for legal purposes in July, 2018, opined that the petitioner's medical conditions require regular treatment by a team of cardiovascular specialists, a combination of prescription medications, and careful monitoring. Id. ¶¶ 63, 69. Dr. Pendyal wrote a further letter for legal purposes dated March 4, 2019, stating that, "Until the etiology of Mr. Yearwood's chest pain can be properly elucidated, I would be reluctant based on the information I have been provided to allow him to travel as a passenger in an aircraft." Id. ¶ 74; Docket No. 1-2. While Dr. Pendyal's letter was provided for legal purposes, there is no allegation that it was provided to immigration authorities prior to the current proceeding.

The petitioner asserts that he anticipated seeking relief regarding the conditions of his confinement and a stay of his removal. Am. Pet. ¶ 76. In anticipation of seeking such relief, the petitioner's attorney arranged for Dr. Ross, a specialist from Montefiore Medical Center, to visit and evaluate the petitioner in consultation with Dr. Pendyal. Id.

On May 19, 2019, the petitioner's attorney contacted staff at the Bergen County Jail to arrange for Dr. Ross to visit the petitioner on May 23, 2019. Id. ¶ 77. ICE approved this request on May 20, 2019. Id. On May 21, 2019, ICE requested medical clearance for the petitioner's removal by a certified health authority at the Bergen County Jail. See Calidonio Decl. ¶ 4. That same day, a registered nurse at the jail medically cleared the petitioner for travel, including by airplane. See Dkt. No. 11-2 at 1. In a sworn declaration, Thomas Flynn -- the ICE Supervisory Detention and Deportation Officer in New York who supervises the Jail Liaison Unit and who told the petitioner that ICE had no issue with the requested medical consultation -- stated that he was not aware that the petitioner's removal was scheduled to take place the day before the agreed-upon medical consultation. Flynn Decl. ¶ 3.

At approximately 1:00 a.m. on May 22, 2019 officers woke the petitioner and told him he was being removed from the United States. Am. Pet. ¶ 78. The immigration officers denied the petitioner's repeated requests to make a phone call until around 6:15 a.m., after the petitioner had arrived at John F. Kennedy airport ("JFK"). Id. ¶¶ 79-80. The respondents state that, as a general matter, the Bergen County Jail shuts down access to all telephones in the facility overnight. Flynn Decl. ¶ 5.

At 6:15 a.m., the petitioner left his attorney a voicemail in which he stated that he was at JFK and was being removed from the United States. Am. Pet. ¶ 81. The petitioner also called his daughter and left her a voicemail in which he indicated that he believed that his flight would leave around 10:30 a.m. Id.

At 6:47 a.m., the petitioner's attorney began emailing officials at the United States Attorney's Office for the Southern District of New York. Id. ¶ 82. In the email, the petitioner's attorney indicated that the petitioner had a complex heart condition and that he should not be placed on an airplane under any circumstance. Id. The petitioner's attorney attached to the email the March 4, 2019, letter from Dr. Pendyal explaining his medical conclusions and his position that he would be reluctant to have the petitioner travel by airplane. Id.

The petitioner was required to board the airplane to St. Vincent. Id. ¶ 84. The petitioner was accompanied by two immigration officers, who remained with him on the flight. Id. The petitioner told both officers that he had a heart condition. Id. The officers responded that they had not been informed of the petitioner's medical condition. Id. The petitioner's flight left JFK at 8:07 a.m. Id. ¶ 85.

Following further emails to the United States Attorney's Office, at 9:42 a.m., the petitioner's counsel submitted a petition for a writ of habeas corpus to this Court as the Part I judge. Id. ¶ 88.

This Court held a telephone hearing at approximately 10:22 a.m. Id. ¶ 89. During the proceeding, the Assistant United States Attorneys indicated that the petitioner's flight had already left for St. Vincent. Id. Accordingly, the Court dismissed the petitioner's request to enjoin the respondents from removing the petitioner as moot. Id. The Court ordered the Government to inquire as to whether the petitioner was provided his medication before his flight, and to ensure that the petitioner received his medications expeditiously if he did not already have them. Id. ¶ 90.

The petitioner's flight landed in St. Vincent around 12:28 p.m. Id. ¶ 91. The petitioner reportedly experienced severe chess pressure during the flight. Id. ¶ 94. When the airplane landed, the petitioner was taken immediately to a medical clinic and then transported by ambulance to a hospital. Id.

In a telephone conversation with Dr. Pendyal on May 24, 2019, the petitioner said that the pain he experienced during the flight was similar to what he experienced prior to his first heart attack

in 2008. Id. The petitioner reported that the doctors at the hospital in St. Vincent said that the petitioner experienced a small heart attack. Id.

The petitioner now brings this petition for a writ of habeas corpus, seeking, among other things, to have a team of medical specialists flown to St. Vincent to evaluate him and requiring that he be brought...