Doe v. Barr

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6 EUREKA DIVISION

7

8 JOHN DOE, Case No. 20-cv-02263-RMI

9 Plaintiff,

ORDER RE: PETITIONER’S MOTION

10 v. FOR TEMPORARY RESTRAINING

ORDER; DIRECTIONS TO THE

11 WILLIAM P. BARR, et al., PARTIES

12 Defendants. Re: Dkt. No. 13

13

14 Now pending before the court is Petitioner’s Motion (dkt. 13), filed April 6, 2020, for a

15 temporary restraining order, by which he seeks an order releasing him from immigration detention

16 at the Yuba County Jail. Respondents have filed a Response (dkt. 18) expressing their opposition,

17 and Petitioner has filed a Reply (dkt. 19). Further, in addition to a jointly-filed Statement of

18 Recent Decision (dkt. 28), both Petitioner and Respondents have filed supplemental declarations

19 (see dkts. 19-1, 23-1, 26-1, 29-1) as well as filing objections to the opposing party’s supplemental

20 filings (see dkts. 22, 24, 29-2). Having read and considered all of the Parties’ filings, the court

21 rules as follows.

22 BACKGROUND

23 Petitioner was born in El Salvador in 1992, and entered the United States in 2014 seeking

24 asylum after members of the transnational criminal syndicate known as the 18th Street gang, or

25 Mara 18, attempted to shoot him to death. See Pet. (dkt. 1) at 7-8. As a young child, Petitioner

26 suffered severe beatings and other forms of abuse from his mother, as well as suffering sexual

27 abuse by his mother’s friends. Id. at 8. When he was 10 years old, Petitioner was a witness to the

1 subsequently, Petitioner testified against them in court. Id. After becoming the victim of

2 harassment, and being labeled a “snitch,” Petitioner was shot by members of the Mara 18

3 organization. Id. During his recovery from that episode, Petitioner began to consume alcohol to

4 excess in an effort to abate his physical and emotional pain. Id. Due to his fear of continued

5 persecution, Petitioner left El Salvador and came to the United States in search of asylum in early

6 2014. Id. Once in the United States, and having met his wife here, Petitioner nevertheless

7 continued to suffer from alcohol dependency which resulted in two criminal convictions for public

8 intoxication, a domestic violence conviction, as well as a conviction for going to his wife’s house

9 on one occasion in violation of a protective order. Id. at 9. In early January of 2016, having

10 already been taken into pretrial custody for these offenses, Petitioner was convicted of all four

11 offenses, and was given a cumulative time-served sentence of 65 days. Id. Thereafter, Petitioner

12 was transferred to immigration custody, under which he has been kept in an incarcerated state. Id.

13 at 2, 9.

14 Over the last four years, immigration authorities have kept Petitioner in confinement at

15 three different detention facilities, between which they have transferred him six times. Id. at 14.

16 During this time, Plaintiff has been jailed at the Rio Consumnes Correctional Center (a primary

17 custody facility for inmates sentenced to county jail by the Sacramento County courts), at the

18 Mesa Verde Detention Facility (a detention and processing facility operated by federal

19 immigration authorities), and most recently, at the Yuba County Jail. See id. at 14. During this

20 four-year period while Respondents have kept Petitioner incarcerated, his immigration case has

21 repeatedly bounced back and forth between the dockets of several immigration judges and the

22 Board of Immigration Appeals (“BIA”). Id. at 10-14. The BIA has remanded Petitioner’s case, due

23 to legal errors committed by these various immigration judges, on three separate occasions,

24 namely, in September of 2017, in October of 2018, and in February of 2020. Id. at 12-13. During

25 the four-year period while his asylum case has been pending before the various tribunals operated

26 by immigration authorities, Petitioner’s repeated requests for release from jail custody have been

27 denied on the basis that his 2016 convictions for public intoxication, domestic violence, and the

1 community. Id. at 10-14. In his current setting of confinement, the Yuba County Jail keeps

2 Petitioner locked in his cell for nearly 19 hours per day, a state of incarceration which is

3 exasperated by shortages of basic necessities such as soap and toilet paper. Id. at 3, 16. Due to

4 currently ongoing shortages and scarcity, Plaintiff “sometimes has to go a week without toilet

5 paper . . . [and] cannot afford to buy basic hygiene necessities such as soap and shampoo.” Id. at

6 16.

7 As a result of the abuse and violence that Petitioner suffered in his childhood years, in

8 addition to the attempts on his life and that of his stepfather, Petitioner has been diagnosed as

9 suffering from a severe and chronic case of posttraumatic stress disorder (“PTSD”). Id. at 8.

10 During the four years that immigration authorities have kept Plaintiff incarcerated at various jails,

11 his mental health has steadily deteriorated and he has been further diagnosed as suffering from

12 major depressive disorder with psychotic features and severe anxiety. Id. Petitioner’s symptoms

13 manifest themselves in the form of flashbacks, nightmares, acute hopelessness, auditory

14 hallucinations, panic attacks, insomnia, restlessness, dramatic mood swings, pervasively negative

15 thought content, uncontrollable crying, and chronic suicidality that resulted in at least three suicide

16 attempts, between 2017 and 2020, while in jail custody. Id. at 8, 15, 17. In this regard, a recent

17 psychological evaluation resulted in the conclusion that Petitioner “is at extremely high risk of

18 future [suicide] attempts if he continues to be in custody,” because of the fact that he has reached

19 the very “edge of his capacity to emotionally cope with his current situation.” Id. at 15. Another

20 mental health professional has opined that the degree and severity of Petitioner’s psychiatric

21 disorders “are associated with levels of disability and impaired functioning [that are] as severe as

22 congestive heart failure and liver failure.” Id. at 17. The severity of Petitioner’s psychiatric

23 symptoms – such as his uncontrollable crying, inability to speak, and other intrusive symptoms –

24 have not only inhibited his ability to communicate with his attorneys such that he can

25 meaningfully participate in his immigration case, but have also seriously interfered with his ability

26 to communicate with doctors. Id. at 18.

27 Consequently, several medical experts have opined that Petitioner requires intensive

1 two mental health professionals have opined that Petitioner’s condition is indeed amenable to

2 treatment, and that his mental health prognosis would be strong if he were to undergo an evidence-

3 based and trauma-informed psychosocial and pharmacological treatment regimen. Id. at 19.

4 Specifically, one mental health expert has opined that in order to stabilize Petitioner’s condition

5 and restore him to good mental health, Petitioner requires “clearly defined treatment protocols that

6 are completely different from the generic and infrequent supportive therapy” that is documented in

7 Petitioner’s medical records from the last four years in the above-mentioned jails. Id. As a result of

8 his deteriorated state of mental health, combined with his history of alcohol dependency and

9 abuse, a medical doctor has opined has Petitioner “is particularly vulnerable to COVID-19

10 infection and at increased risk of developing COVID-19 complications including death.” See

11 Keller Decl. (dkt. 1-3) at 130-31. Dr. Keller based this opinion not only on Petitioner’s history of

12 alcohol dependency and abuse, but also because Petitioner “suffers from prolonged and extremely

13 high levels of psychological distress . . . [placing him] at further risk of having a suppressed

14 immune system, putting him at higher risk than the general population of contracting and

15 potentially having more serious infections . . . [because] [s]tress and its link to immunosuppression

16 are well documented in the medical literature.” Id. at 131. Accordingly, in the event of his release

17 from jail custody, Petitioner’s counsel has arranged for Petitioner to be admitted for inpatient

18 treatment at the Psychiatric Emergency Department of San Francisco General Hospital (see Pet.

19 (dkt. 1) at 19), where space continues to be available for him and where significant and substantial

20 social distancing and other protocols pertaining to COVID-19 are in place. See Portnoy Decl. (dkt.

21 29-1) at 3-5.

22 LEGAL STANDARD

23 The standard for issuing a temporary restraining order is the same as for issuing a

24 preliminary injunction. See Dumas v. Gommerman, 865 F.2d 1093, 1095 (9th Cir. 1989). Under

25 the traditional test, a movant must show: (1) a strong likelihood of success on the merits; (2) the

26 possibility of irreparable injury if preliminary relief is not granted; (3) a balance of hardships

27 favoring the movant; and (4) the advancement of the public interest (at least in certain cases). See

1 recently held that a movant seeking an injunction must demonstrate that irreparable harm is in fact

2 “likely,” not merely possible. See Winter v. NRDC, 555 U.S. 7, 24 (2008). Because a preliminary

3 injunction is an extraordinary remedy and never awarded as a matter of right, in each case, courts

4 must balance the competing claims of injury and must consider the effect on each party of the

5 granting or withholding of the requested relief; thus, in the exercise of such discretion, courts of

6 equity should pay particular attention to the public consequences of employing the extraordinary

7 remedy of injunction. Winter, 555 U.S. at 24.

8 Furthermore, because Petitioner seeks a mandatory injunction, he must establish that the

9 law and facts clearly favor his position, not simply that he is likely to succeed – this is so because

10 the release order sought by Petitioner here would operate to order Respondents to take the

11 affirmative action of releasing him from his current state of incarceration in their custody. See e.g.,

12 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). Accordingly, because such an

13 injunctive order would go well beyond simply maintaining the status quo pendente lite, it is

14 particularly disfavored, and district courts have been instructed to deny such relief unless the facts

15 and law clearly favor the moving party. Id. (citing Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320

16 (9th Cir. 1994); Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879

17 (9th Cir. 2009); Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.1979); and, Park Vill.

18 Apartment Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 2011)).1

19 DISCUSSION

20 Because of the spread of COVID-19, there is a global pandemic afoot that has thus far

21

22

1 It should also be noted, perhaps as an aside or a curiosity, that while some authorities have concluded that

23 district courts possess an inherent power to admit habeas petitioners to bail pending the resolution of their

cases, other courts have found this disagreeable. See Mapp v. Reno, 241 F.3d 221, 226 (2nd Cir. 2001)

24 (“Today we reaffirm these cases and hold, once again, that the federal courts have inherent authority to

admit to bail individuals properly within their jurisdiction. Even as we have acknowledged the authority of

25 the federal courts to grant bail to habeas petitioners, however, we have also, and consistently, emphasized

that this power is a limited one, to be exercised in special cases only. [A] habeas petitioner should be

26 granted bail only in unusual cases, or when extraordinary or exceptional circumstances exist which make

the grant of bail necessary to make the habeas remedy effective.”) (internal quotations and citation

27 omitted); see also Roe v. United States Dist. Court (In re Roe), 257 F.3d 1077, 1080 (9th Cir. 2001)

(Stating that “the question of whether the federal courts have inherent power to grant bail in any case where

1 been known to cause more than one million infections and more than 56,300 deaths in the United

2 States alone, with there being no indication that the spread of infection has reached its peak.2 In

3 California, as in other states, a state of emergency has been declared and all persons have been

4 ordered to stay at home and to practice social distancing at all times.3 Likewise, the CDC has

5 issued nationwide guidance to the following effect: there is no vaccine to protect against COVID-

6 19; people can be infected by mere proximity with infected persons (who may be asymptomatic);

7 people should stay at home as much as possible and avoid coming into proximity with others

8 whenever possible; people should wear cloth face coverings or masks in public settings and should

9 wash their hands with soap and water as often as possible; people should practice social distancing

10 to the greatest extent possible; and, while everyone is at risk of contracting COVID-19, older

11 adults and persons of any age who have serious underlying medical conditions may be at higher

12 risk for more severe illness.4 Furthermore, as mentioned above, there is undisputed evidence in the

13 record that Petitioner’s PTSD and MDD have likely caused him to become immunocompromised

14 and that people with a weakened immune system have a reduced ability to fight infectious diseases

15 in general, including viruses like COVID-19. See Keller Decl. (dkt. 1-3) at 130-31.5 While

16 Respondents appear to tacitly concede that social distancing is not possible at the Yuba County

17 Jail (see Respondents’ Opp. (dkt. 18) at 23, “Even assuming there were (sic) a lack of social

18 distancing at YCJ . . .”), Respondents submit that they have implemented a number of COVID-19

19 related remedial measures at Yuba County, including releasing a number of inmates, instituting a

20 14-day quarantine for new prisoners, temperature checks, cancellation of all social visits,

21 discouraging attorney contact visits, and providing instructions on handwashing as well as “other

22

23

2 See Website of the Centers for Disease Control and Prevention (“CDC”):

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last checked April 26, 2020,

24 at 4:00 pm).

25

3 See Cal. Executive Order N-33-20: https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf (last

checked April 26, 2020 at 4:00 pm).

26

4 https://www.cdc.gov/coronavirus/2019-ncov/downloads/2019-ncov-factsheet.pdf (last checked April 26,

27 2020, at 4:00 pm).

1 health and wellness information by video for detainees . . .” Id. at 12-13. However,

2 notwithstanding the measures taken by Respondents, the fact remains that social distancing and

3 facial coverings are not a reality inside the Yuba County Jail; indeed, as recently as two weeks

4 ago, the Sheriff was reported to have issued a plea to the general public for the donation of 1,000

5 face coverings for his jail such as to protect people against COVID-19.6

6 In opposing the motion, Respondents advance a series of threshold arguments. First,

7 Respondents contend that this court lacks jurisdiction over the Petition because of the notion that

8 the proper respondent would be Petitioner’s immediate custodian, the Sheriff of the Yuba County

9 Jail (situated in the Eastern District of California), as opposed to Respondents David Jennings

10 (San Francisco Field Office Director for Immigration and Customs Enforcement, “ICE”), Matthew

11 Albence (Acting ICE Director), Chad Wolf (Acting DHS Secretary), and William Barr (United

12 States Attorney General). See Respondents’ Opp. (dkt. 18) at 15-16. The flaw in Respondents’

13 argument is evident in the fact that the Sheriff of Yuba County, Petitioner’s actual custodian,

14 neither has the authority to release Petitioner from the Attorney General’s legal custody, nor any

15 interest whatsoever in being held to answer the claims raised in the Petition.

16 Because the federal habeas statute provides that the proper respondent to a habeas petition

17 is “the person who has custody over” the petitioner (see 28 U.S.C. § 2242), the generally

18 applicable “default rule is that the proper respondent is the warden of the facility where the

19 prisoner is being held, not the Attorney General or some other remote supervisory official,”

20 (Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)); however, this is not always the case in the

21 immigration context. In the immigration context, it may be said that the “immediate custodian”

22 rule does not always control, and that its applicability would sometimes depend on whether the

23 petitioner is challenging the present physical detention (sometimes referred to as a “core” habeas

24 challenge) or other statutory or constitutional violations (a “non-core” habeas challenge). See

25 generally Villavicencio Calderon v. Sessions, 330 F. Supp. 3d 944, 951-53 (S.D.N.Y. 2018). In the

26 case of non-core habeas challenges, some courts have held that the proper respondent is a person

27

1 or entity that has legal custody of the petitioner, also known as a “legal custodian.” See e.g., Somir

2 v. United States, 354 F. Supp. 2d 215, 217-19 (E.D.N.Y. 2005). In the immigration context,

3 similar rulings have issued for core habeas challenges. See e.g., Farez-Espinoza v. Chertoff, 600 F.

4 Supp. 2d 488, 495 (S.D.N.Y. 2009) (“Because Farez-Espinoza is being held by the Government –

5 i.e., the Attorney General and DHS – and not the warden of the prison in which Farez-Espinoza

6 currently is detained, I find that Respondents Secretary Chertoff and Attorney General Mukasey

7 are properly named in the instant petition.”); see also Castillo-Hernandez v. Longshore, 6 F. Supp.

8 3d 1198, 1208 (D. Colo. 2013) (Stating that in both iterations of Armentero v. INS, 340 F.3d 1058,

9 1059-60 (9th Cir. 2003) (Armentero I), reh’g granted, opinion withdrawn, 382 F.3d 1153 (9th Cir.

10 2004), opinion after grant of reh’g, 412 F.3d 1088 (9th Cir. 2005) (Armentero II), “the

11 government argued that the immediate custodian rule did not apply and a local ICE [Field Office

12 Director] was a proper respondent, now the government suggests that the rule does apply and the

13 ICE FOD is an improper party . . . the government’s novel position on this question appears in

14 tension with the relevant regulations . . . [that] authorize the ICE District Director, not the

15 immediate custodian, to exercise his or her discretionary judgment to release noncitizens whose

16 prolonged detention might violate the Constitution.”) (citing 8 C.F.R. § 1236.1(c)(6)(i) & (ii)); see

17 also Saravia v. Sessions, 280 F. Supp. 3d 1168, 1187 (N.D. Cal. 2017) (“Padilla instructs courts

18 not to [only] look to the official who exercises [ultimate] legal control over the petitioner where

19 present physical confinement is at issue . . . At least where a readily identifiable federal official

20 exercises more immediate control over a contract facility than the Attorney General or another

21 department head, as is the case here, Padilla requires a petitioner challenging present physical

22 custody to name that more immediate official . . . [thus] [b]ecause [Field Office Specialist Elicia]

23 Smith is the proper respondent, this Court has habeas jurisdiction over A.H.’s habeas petition. So

24 long as the proper respondent falls within this Court’s territorial jurisdiction, habeas jurisdiction

25 exists. [] No party disputes that Elicia Smith is based in San Francisco, within this Court’s

26 territorial jurisdiction.”) (internal citations omitted).

27 Here, the court agrees with Petitioner (see Petitioner’s Reply (dkt. 19) at 9-10) that it is

1 as respondents rather than the Sheriff of Yuba County. First, the Yuba County Jail’s involvement

2 here is merely to provide a service to ICE, and it is undisputed that Petitioner cannot be released

3 without the express authorization of ICE; thus, ICE is in complete control of Petitioner’s

4 admission into and release from the Yuba County Jail. With all due respect to the warden of the

5 Yuba County Jail, the fact that this jail has agreed to house federal immigration detainees for the

6 federal authorities renders the warden of this facility as a mere functionary, no different than an

7 individual jailor posted outside Petitioner’s cell block. Second, it goes without saying that the

8 Sheriff of Yuba County is ill-placed to respond to the merits of the claims underlying the habeas

9 petition at bar because the Sheriff would not be in possession of the information necessary to

10 answer on behalf of federal immigration authorities, nor does the Sheriff have any legitimate

11 interest in litigating these claims. Thus, while in the great majority of habeas cases, or at least

12 those which involve prisoners held in penal institutions, the immediate custodian rule makes

13 sense, it cannot be argued with any seriousness that when the warden of a detention facility has no

14 literal power to produce the petitioner, and cannot provide any meaningful answers to important

15 factual and legal questions, that nevertheless courts should apply the immediate custodian rule and

16 drive the litigation into a dead-end for no legitimate reason and to the benefit of no party. Lastly, it

17 should not go without mention that by detaining immigration prisoners in remote jail facilities

18 belonging to various counties and then urging the application of the immediate custodian rule, it at

19 least appears that Respondents may be attempting to take advantage of the immediate custodian

20 rule to frustrate Petitioner’s effective access to habeas corpus litigation. In short, Respondents’

21 argument regarding this inappropriate application of the immediate custodian rule seeks to place

22 Petitioner in a catch-22, where he can neither find habeas corpus jurisdiction in the district in

23 which he is confined, nor elsewhere. Accordingly, based on the above-referenced authorities,

24 because Respondent David Jennings, the San Francisco Field Office Director for ICE, is both

25 within this district and vested with discretionary authority to release Petitioner, he is a proper

26 respondent, and the court concludes that the immediate custodian rule does not apply in this case

27 and that at least one of the named respondents can provide Petitioner with the requested

1 Petition is without merit. See e.g., Carmona v. Aitken, No. 14-cv-05321-JSC, 2015 U.S. Dist.

2 LEXIS 47772 at *17, 2015 WL 1737839, *2-*5 (N.D. Cal. Apr. 10, 2015) (reasoning that the

3 immediate custodian rule did not apply to habeas petitions filed by an immigrant detainee; rather,

4 the proper respondent should be one with actual authority to effectuate the prisoner’s release, such

5 as the Attorney General, or the Department of Homeland Security Secretary).

6 Respondents have also advanced the argument that Petitioner’s due process claim relating

7 to his present confinement in the Yuba County Jail during the circumstances presented by the

8 currently pending pandemic fails to establish Article III standing because Petitioner has not

9 established an injury in fact or redressability. See Respondents’ Opp. (dkt. 18) at 22-25. The court

10 disagrees. Regarding standing, Respondents essentially argue that Petitioner does not presently

11 suffer from COVID-19 infection, and that his likelihood of becoming infected is speculative. See

12 id. at 22-23. However, COVID-19 infections are still rapidly increasing throughout the United

13 States, including in California; and, when introduced into a confined area, such as a jail, a cruise

14 ship, or a naval vessel, the infection can spread rapidly. Indeed, one model produced by a data

15 scientist maintains that if a single person, either staff or inmate, were to be infected with COVID-

16 19 at the Yuba County Jail, nearly every other person who is either employed or imprisoned there

17 would be affected within a matter of weeks. See Moussavian Decl. (dkt. 19-1) at 7.7 In fact, it

18 appears that Petitioner is currently detained in a pod with a fellow prisoner who may be showing

19 signs of COVID-19 infection in the form of fever and headaches. See Petitioner’s Reply (dkt. 19)

20 at 7 (citing Moussavian Decl. (dkt. 19-1) at 5). Under the circumstances described herein,

21 including the fact that Petitioner is immunocompromised and requires intensive inpatient

22 psychiatric care, the court finds that Petitioner has standing to assert his claims. See also

23 Petitioner’s Reply (dkt. 19) at 8 (“Respondents claim that Mr. Doe does not meet any of the

24 CDC’s “high-risk criteria” [] [y]et, Mr. Doe’s Yuba medical records confirm he has taken an anti-

25

26

7 The court will note that in making the findings enumerated herein, the court has considered hearsay

27 evidence offered by Petitioner and by Respondents. See Flynt Distrib. Co. v. Harvey, 734 F. 2d 1389, 1394

(9th Cir. 1984) (a district court does not err by considering hearsay evidence offered in connection with a

1 depression medication with a side-effect of a weakened immune system, at the direction of a Yuba

2 doctor, since January 6, 2020.”). Thus, it is not necessary for Petitioner to either become infected

3 with COVID-19, or to propose release conditions that would guarantee the impossibility of a

4 future infection in order to establish an injury in fact or redressability. Once again, Respondents’

5 argument appears to place Petitioner in a catch-22, such that Petitioner’s claim is urged to be

6 viewed as failing to establish standing until such time as it is too late and Petitioner becomes

7 infected and the claim becomes moot. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

8 (TOC), Inc., 528 U.S. 167, 190-91 (2000) (“if mootness were simply “standing set in a time

9 frame,” the exception to mootness that arises when the defendant’s allegedly unlawful activity is

10 “capable of repetition, yet evading review” could not exist . . . [the] [s]tanding doctrine functions

11 to ensure, among other things, that the scarce resources of the federal courts are devoted to those

12 disputes in which the parties have a concrete stake.”).

13 Turning to Respondent’s argument to the effect that Petitioner has failed to establish a

14 likelihood of success on the claim that his civil detention in the Yuba County Jail, given his

15 immunocompromised condition during the time of a viral pandemic, violates due process –

16 Respondents submit that “Petitioner’s continued immigration detention cannot be described as

17 punitive or excessive in relation to the legitimate government purposes of protecting the public

18 and assuring his presence at removal.” See Respondents’ Opp. (dkt. 18) at 25-26. In this regard,

19 the court begins by noting that it is well established that “federal habeas corpus actions are []

20 available to deal with questions concerning both the duration and the conditions of confinement.”

21 See Workman v. Mitchell, 502 F.2d 1201, 1208 n.9 (9th Cir. 1974). As to Petitioner’s likelihood of

22 success on the merits, one of Petitioner’s claims, as noted above, is that his conditions of

23 confinement in the Yuba County Jail, in light of the ongoing COVID-19 pandemic, are

24 unconstitutional. See generally Pet. (dkt. 1). In evaluating a claim that a detainee’s conditions of

25 confinement are unconstitutional, “the proper inquiry is whether those conditions amount to

26 punishment.” See Bell v. Wolfish, 441 U.S. 520, 535 (1979). Conditions that rise to the level of

27 punishment, occur “(1) where the challenged restrictions are expressly intended to punish, or (2)

1 excessive in relation to the alternative purpose, or are employed to achieve objectives that could be

2 accomplished in . . . alternative and less harsh methods.” See Jones v. Blanas, 393 F.3d 918, 932

3 (9th Cir. 2004) (internal quotations and citations omitted). Here, Petitioner does not assert that

4 Respondents intend to punish him by detaining him under the conditions described above; nor

5 does he dispute Respondents’ asserted purpose and basis in detaining him at the Yuba County Jail

6 – that is, specifically, to ensure his presence at immigration proceedings and to effectuate the

7 government’s ability to execute any final orders of removal. Thus, the actual issue here is whether

8 Petitioner is likely to prevail in demonstrating that, given his alleged health concerns, his detention

9 is excessive when compared to the government’s asserted needs and basis for so detaining him.

10 Here, the court finds that Petitioner has indeed shown a clear likelihood of success on the merits,

11 and that in light of Petitioner’s health issues, and the ongoing pandemic, his incarceration in the

12 Yuba County jail is excessive, and that (as discussed below) the government’s needs can be

13 addressed with less excessive means than outright incarceration in a county jail.

14 Because the court finds that Petitioner has clearly shown that he is immunocompromised

15 and stands at high risk of severe illness or death if infected with COVID-19, and because

16 Petitioner has clearly demonstrated that he cannot practice meaningful social distancing in the

17 Yuba County Jail, although it is likewise undisputed that Respondents have a non-punitive

18 purpose in detaining him as such (namely, to ensure his appearance at immigration proceedings

19 and to effectuate any final orders of removal), the court finds that Petitioner has made a strong

20 showing that Respondents’ detaining him in the above-described conditions, in spite of their

21 knowledge of his high-risk status, is indeed “excessive in relation to [the stated] purpose.” See id.

22 The court, therefore, finds that a clear showing has been made that Petitioner is likely to succeed

23 on the merits of his Fifth Amendment claim. As to the question of whether Petitioner has

24 demonstrated a likelihood of irreparable harm, the court will note that this virus is thought to

25 spread mainly from person-to-person through respiratory droplets produced when an infected

26 person coughs, sneezes, or even speaks or breathes, and that these droplets can land in the mouths

27 or noses of people who are nearby or be launched into the air and inhaled into someone’s lungs, or

1 land on a surface that may then be touched by someone who in turn touches their eyes or mouth.8

2 Moreover, the court finds that Petitioner has made a clear showing that by virtue of his

3 incarceration in the Yuba County Jail, he is prevented from meaningfully, if at all, adhering to the

4 advice of our Nation’s health officials, including those at the CDC, as to how to avoid becoming

5 infected with COVID-19, specifically, by engaging in a strict regimen of social distancing at all

6 times, by using protective equipment such as masks and gloves when in close proximity to others,

7 and to frequently wash one’s hands after touching surfaces or objects with which others have

8 come into proximity. Under these circumstances, the court finds that Petitioner has made a

9 sufficiently clear and compelling showing that he occupies a high degree of risk that he would

10 suffer severe illness or death if infected with COVID-19; and, thus, the court finds that Petitioner

11 is likely to incur irreparable injury in the absence of any relief from the present conditions of his

12 confinement at the Yuba County Jail.

13 Further, the court finds that the balance of hardships tips in Petitioner’s favor because of

14 his inability to meaningfully limit his exposure to COVID-19 while he is confined at the Yuba

15 County Jail. Although Respondents may have concerns about a risk of flight, or other matters, the

16 court intends to address those concerns by imposing reasonable conditions upon release (described

17 below). Finally, the court finds that under the highly unusual circumstances presented by the

18 presence of a global pandemic – the likes of which has not been seen in over a century – the public

19 interest is indeed better served by granting the requested injunction than otherwise would be the

20 case. In particular, the court finds that granting the requested TRO better serves the public’s

21 interest in promoting and preserving the overall public health by an effort to contain the further

22 spread of COVID-19, particularly in detention centers, which are typically staffed by numerous

23 individuals who reside in nearby communities. Accordingly, the court will conditionally grant

24 Petitioner’s motion, as described below, pending the formulation of a forthcoming release order

25 that would contain reasonable conditions of release.

26 //

27

1 CONCLUSION

2 As mentioned above, the court will not order Petitioner to be released without reasonable

3 conditions to include:

4 (1) Petitioner is to reside and shelter in place at an address to be specified in said order.

5 Petitioner’s counsel is to provide each proposed address (including any address for the

6 proposed inpatient treatment facility and any proposed address of residence after

7 discharge from such inpatient treatment facility) where Petitioner shall shelter in place.

8 (2) Petitioner shall be transported from the Yuba County Jail to said address by a person to

9 be specified in said order (the name of such person shall be provided by Petitioner’s

10 counsel).

11 (3) Pending further order of the court, Petitioner shall not leave said address or addresses

12 where he will shelter in place, except to obtain medical care, to appear at court

13 proceedings, or to obey any orders issued by the Department of Homeland Security.

14 (4) Petitioner shall not violate any federal, state, or local laws or ordinances.

3 15 Additionally, counsel for the Parties are ORDERED to meet and confer by whatever

A 16 || means of their choosing forthwith, and counsel shall propose, in a joint statement to be filed no

2 17 later than Wednesday, April 29, 2020 at 12:00 p.m., any additional reasonable condition that they

S 18 || believe should attend Petitioner’s release.

19 IT IS SO ORDERED.

20 || Dated: April 27, 2020

21 Mt Z

22

R@BERT M. ILLMAN

23 United States Magistrate Judge

24

25

26

27

28