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 GRANTING PRELIMINARY

10 v. INJUNCTION

11 WILLIAM P. BARR, et al.,

12 Defendants.

13

14 In early April of 2020, Petitioner, an asylum seeker, filed a habeas corpus petition as well

15 as a motion for a temporary restraining order (“TRO”) seeking his immediate release from the

16 custody of Immigration and Customs Enforcement (“ICE”) at the Yuba County Jail. See Pet. (dkt.

17 1); and, Pet.’s Mot. (dkt. 13). Following a round of briefing by the parties, the court granted

18 Petitioner’s motion for a temporary restraining order (dkt. 31) and ordered Respondents to release

19 Petitioner (dkt. 33) from custodial confinement at the Yuba County Jail pursuant to a series of

20 conditions of release. Thereafter, at a hearing on May 5, 2020, the court ordered Respondents to

21 show cause as to why a preliminary injunction should not issue, for which the parties stipulated to

22 a briefing schedule (dkts. 40, 43). In addition to Petitioner’s brief (dkt. 48) and exhibits (dkt. 53)

23 in support of the issuance of a preliminary injunction, now pending before the court are the

24 Respondents’ supplemental brief in opposition (dkt. 44), along with various declarations and

25 exhibits (dkts. 45, 46), as well as Respondents’ reply brief (dkt. 51). Having read and considered

26 the parties’ written submissions, the court rules as follows.1

27

1 At the outset, the court will note that the parties have expended considerable energy in

2 needlessly objecting to various portions of the evidence provided by the other party – declarations

3 and exhibits – on grounds such as hearsay, relevance, the danger of unfair prejudice,

4 authentication, and reliability under F.R.E. 702. See Resp’t Br. (dkt. 44) at 10-11; Pet.’s Br. (dkt.

5 48) at 11; and, Resp’t Reply Br. (dkt. 51) at 4-8. These objections are needless because the court

6 finds that it is not easily mislead or confused, and also because it is quite well established that “the

7 Federal Rules of Evidence do not strictly apply to preliminary injunction proceedings.” Disney

8 Enterprises, Inc. v. VidAngel, Inc., 224 F. Supp. 3d 957, 966 (C.D. Cal. 2016) (evidentiary issues

9 in this context go to the weight of the evidence rather than its admissibility), aff’d, 869 F.3d 848

10 (9th Cir. 2017); see also Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (a preliminary

11 injunction is customarily granted on the basis of procedures that are less formal and evidence that

12 is less complete than in a trial on the merits”); Herb Reed Enterprises, LLC v. Fla. Entm’t Mgmt.,

13 Inc., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013); Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir.

14 2009) (“A district court may [] consider hearsay in deciding whether to issue a preliminary

15 injunction.”); Sega Enterprise Ltd. v. Accolade, Inc., 977 F.2d 1510, 1530 n.10 (9th Cir. 1992)

16 (“In the absence of any evidence that Nagashima was lying, it was not an abuse of discretion for

17 the district judge to admit his declaration and the altered Accolade cartridges as evidence. The fact

18 that neither Accolade nor the district court was able to verify Nagashima’s statements affects the

19 weight to be given the statements and the proffered cartridges, not their admissibility.”); Republic

20 of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988) (observing that the rules of

21 evidence do not strictly apply to preliminary injunction proceedings); Flynt Distrib. Co., Inc. v.

22 Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) (“The urgency of obtaining a preliminary injunction

23 necessitates a prompt determination and makes it difficult to obtain affidavits from persons who

24 would be competent to testify at trial. The trial court may give even inadmissible evidence some

25 weight, when to do so serves the purpose of preventing irreparable harm before trial.”); K-2 Ski

26 Co. v. Head Ski Co., 467 F.2d 1087, 1088 (9th Cir. 1972) (trial court may consider allegations in

27 verified complaint in issuing preliminary injunction). Accordingly, the parties’ requests to strike

1 objections to the evidence presented by the other party are OVERRULED. The court notes that it

2 has considered the entirety of each party’s submissions and has given each submission the

3 appropriate weight based on the circumstances.

4 BACKGROUND

5 Petitioner’s background was narrated in greater detail in the court’s previous order granting

6 the TRO, see (dkt. 31) at 1-4, however, for present purposes, the court will recapitulate a brief

7 summary. Born in El Salvador in 1992, Petitioner entered the United States in 2014 seeking

8 asylum after members of a criminal syndicate known as the 18th Street gang, or Mara 18,

9 attempted to kill him after labeling him as an informer for having testified against them after they

10 shot his stepfather in his presence. See Pet. (dkt. 1) at 7-8. Prior to those events, Petitioner’s

11 childhood was no less turbulent as it was marked with severe beatings and other forms of abuse

12 from his mother, as well as sexual abuse by his mother’s friends. Id. at 8. Due to the ubiquitous

13 presence of this particular criminal syndicate in his home country, and his fear of continued

14 persecution, Petitioner escaped the violence of his homeland and came to the United States in

15 search of asylum in early 2014. Id. Once here, and having developed an alcohol dependency as a

16 means of attempting to dull the pain of his trauma, Petitioner was convicted twice for public

17 intoxication, once for an episode of domestic violence, and once for going to his wife’s home in

18 violation of a protective order. Id. at 9. In January of 2016, Petitioner was given a cumulative

19 time-served sentence of 65 days in jail for all of these offenses. Id. Thereafter, he was transferred

20 to immigration custody, under which he was kept in an incarcerated state for more than four years

21 until this court’s granting of his TRO application resulted in his release. See id. at 2, 9.

22 During his four years of incarceration by immigration authorities, his asylum case was

23 mired in the government’s administrative tribunals, repeatedly bouncing back and forth between

24 the dockets of several immigration judges and the Board of Immigration Appeals (“BIA”). Id. at

25 10-14. On three occasions between 2017 and 2020, the BIA remanded Petitioner’s case due to

26 legal errors committed by various immigration judges (see id. at 12-13); and, during that four-year

27 period, his repeated requests for release from jail custody were denied because the government’s

1 due to his 2016 convictions for public intoxication, domestic violence, and the violation of an

2 order prohibiting him from visiting his wife’s home. Id. at 10-14.

3 The history of abuse and violence that Petitioner suffered in his childhood years, as well as

4 the attempts on his life and that of his stepfather, resulted in his diagnosis with a severe and

5 chronic case of posttraumatic stress disorder (“PTSD”); additionally, four years of protracted

6 incarceration resulted in the further deterioration of his mental health such that he came to also

7 suffer from major depressive disorder with psychotic features and severe anxiety. Id. at 8. His

8 symptoms include flashbacks, nightmares, acute hopelessness, auditory hallucinations, panic

9 attacks, insomnia, restlessness, dramatic mood swings, pervasively negative thought content,

10 uncontrollable crying, and chronic suicidality that resulted in at least three suicide attempts while

11 in jail custody. Id. at 8, 15, 17. As a result of this state of affairs, several medical experts have

12 opined that Petitioner requires intensive psychiatric treatment – of the variety that is unavailable

13 for persons confined to the Yuba County Jail – such as to restore his mental health. Id. at 19-20.

14 Furthermore, one medical doctor opined that Petitioner’s degraded state of mental and emotional

15 health – exasperated by his years spent in various jails while his immigration case has been

16 pending – has rendered him immunocompromised such that he “is particularly vulnerable to

17 COVID-19 infection and at increased risk of developing COVID-19 complications including

18 death.” See Keller Decl. (dkt. 1-3) at 130-31 (Petitioner “suffers from prolonged and extremely

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

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

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

22 are well documented in the medical literature.”). Accordingly, the undersigned found that granting

23 his TRO application, ordering his immediate release, and granting him the long-awaited relief

24 from the confinement which was exasperating his state of mental and emotional health was

25 warranted because Petitioner had clearly demonstrated a strong likelihood that his claim would

26 succeed on the merits, that irreparable harm was likely if a TRO would not issue, and that the

27 balance of hardships and the public interest favored his immediate release. See Order Granting

1 [now] receive a bar of soap that may be replaced for free upon request,” Respondents ask that this

2 court dissolve the TRO, dismiss or deny the Petition, and order the Petitioner to be jailed for

3 another indeterminate period because of the notion that his continued incarceration “would serve

4 the public interest by protecting the public from a person established to be a danger to the

5 community and by ensuring [the] Petitioner’s presence at removal proceedings.” See Resp’t Br.

6 (dkt. 44) at 8. For the reasons discussed below, the court finds Respondents’ arguments

7 unpersuasive.

8 DISCUSSION

9 As mentioned previously, the standard for issuing a TRO and a preliminary injunction are

10 the same. See Order Granting TRO (dkt. 31) at 4-5; see also Winter v. NRDC, Inc., 555 U.S. 7, 20

11 (2008) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

12 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

13 balance of equities tips in his favor, and that an injunction is in the public interest.”). Further,

14 because Petitioner seeks an extraordinary remedy, this court will balance the competing claims of

15 injury, considering the effect on each party of the granting or withholding of the requested relief,

16 as well as giving attention to the public consequences of employing the extraordinary remedy of

17 injunction. Winter, 555 U.S. at 24. Lastly, this court is required to deny injunctive relief unless the

18 facts and law clearly favor Petitioner’s position. See e.g., Garcia v. Google, Inc., 786 F.3d 733,

19 740 (9th Cir. 2015).

20 Given that the court has already rendered this analysis based on a set of facts as they

21 existed a little over two months ago, the court will begin its analysis by relating the parties’

22 conceptions of the various changes in circumstances that have since taken place. Respondents

23 present a few “supplemental facts,” which they perceive as having changed the calculus in order to

24 justify re-incarcerating Petitioner at the Yuba County Jail. See Resp’t Br. (dkt. 44) at 3-4. First,

25 (while conceding that the numbers fluctuate daily) Respondents note that the immigration detainee

26 population at Yuba has been reduced from 168 to 78 prisoners, less than 38% of total capacity (see

27 Resp’t Br. (dkt. 44) at 3) – although, this was most likely accomplished by the granting of TROs

1 members released on bail by virtue of the relief being granted in Zepeda-Rivas v. Jennings et al.,

2 Case No. 20-cv-2731-VC (N.D. Cal. 2020) (as of July 1, 2020, through 32 bail orders, 119

3 immigration prisoners have been admitted to bail and freed from the Yuba County Jail and the

4 Mesa Verde Detention Center). Second, Respondents add that each Yuba County immigration

5 detainee is now given a bar of soap, “free of charge.” Id. As to soap dispensers in common areas,

6 Respondents note that staff now check them to see if a refill is needed as often as twice in every

7 12-hour shift. Id. Also, Respondents note that hand sanitizer is now available for use by jail staff.

8 Id. Further, the jail has now issued “two washable cloth masks” to each detainee, and posted

9 “fliers remind[ing] detainees how to properly wear their masks.” Id. at 4. Jail staff and ICE

10 personnel are now required to wear masks while at the facility. Id. Lastly, Respondents note that

11 some measures have been effected to achieve some degree of social distancing, such as increasing

12 the spacing between bunk-beds to 6 feet in the housing units fashioned as dormitories with dozens

13 of beds in one large room, and in other units with two-person cells, prisoners are no longer housed

14 with cellmates; however, no real change has been effected as to the prisoners’ use of common

15 areas, communal bathrooms, communal showers, and communal recreational areas and facilities.

16 See id. at 4. Regarding these common areas such as bathrooms and showers, Respondents tacitly

17 concede that the best they can do is to implement measures that “encourage,” rather than actually

18 enforce, social distancing. Id. Further, while Respondents mention “taking the temperatures of all

19 detainees every day in every housing unit,” and while they also trumpet the notion that “there are

20 still zero suspected cases . . . and still zero confirmed cases of COVID-19 at the YCJ,” this is of

21 little comfort due to the fact that there is no mention whatsoever of any testing being done to

22 determine if any jail staff, ICE personnel, or any of the prisoners are testing positive for the SARS

23 COVI-2 viral infection – Respondents’ submissions are silent in this regard, meaning that there is

24 no such testing being performed. See generally Resp’t Br. (dkt. 44); Lind Decl. (dkt. 45); Tseng

25 Decl., Exh. M (dkts. 46, 46-1); and Resp’t Reply Br. (dkt. 51).

26 As to the changes of facts and circumstances on Petitioner’s side of the equation, the court

27 will begin by discussing the most significant of the changed circumstances – the fact that

1 what was more than four years of incarceration, there has been no suggestion that he has either

2 endangered anyone in the community, or that ICE has lost track of him, or that there is any

3 indication that he might not appear at future immigration proceedings. Indeed, each day that

4 passes uneventfully, while Petitioner enjoys his freedom, serves to further undercut the

5 government’s contention that a series of petty offenses from 2016 will forever compel the

6 conclusion that Petitioner’s liberty will be attended with a perpetual risk of flight and a permanent

7 danger to the community. Additionally, it appears that Petitioner’s learned counsel in this matter

8 will continue to represent him in his asylum case going forward. See Pet.’s Exh. (dkt. 53) at 2, 69.

9 Another development that severely undermines the government’s contention that Petitioner

10 belongs in the Yuba County Jail, is the fact that ICE’s sister agency, the United States Citizenship

11 and Immigration Services, has issued Petitioner an Employment Authorization Document

12 (generally known as an “EAD card”). Id. at 7, 67. The document provides that “[y]our EAD card

13 is proof that you are allowed to work in the United States,” and is renewable upon the expiration

14 of its two-year validity period ending in May of 2022. Id. Thus, while one department of the

15 United States seeks to convince this court to restore Petitioner to a state of imprisonment that bore

16 all the hallmarks of indefinite civil incarceration while he awaits the day that an immigration

17 judge’s ruling as to his case will not be the subject of yet another remand order by the BIA,

18 another department of the government is willing to trust Petitioner with an EAD card that grants

19 him unfettered permission to participate in our economy. This is the sort of disconnect which

20 seriously undermines the credibility behind the government’s adamant representations that

21 Petitioner continues to be a flight risk and a danger to the community after spending more than

22 four years in jail following two incidents of public drunkenness, one episode of domestic violence

23 with no suggestion of any resulting injuries, and the violation of an order not to visit his wife’s

24 home – for which he received a combined 65-day time-served sentence.

25 Since his release from the Yuba County Jail, ICE has fitted Petitioner with a GPS-tracking

26 device on his ankle, as well enrolled him in ICE’s Intensive Supervision Appearance Program

27 (“ISAP”). Id. at 3. Additionally, the diligence of his legal team (whose pro-bono representation is

1 Petitioner’s compliance with the ever-shifting landscape (due to the pandemic) of ICE’s regime of

2 check-ins and reporting appointments instills additional confidence that Petitioner will comply

3 with all conditions attending his release, and will appear at all future proceedings as directed. See

4 id. at 3-4. As to his ongoing care and treatment for his mental health issues, Petitioner was at first

5 admitted to San Francisco General Hospital for intensive inpatient treatment, and then discharged

6 and referred for continuing treatment on an outpatient basis. Id. at 4. Once again, due to the

7 diligence and skill of his counsel, “more than a half-a-dozen mental health [care] providers” were

8 arranged such that Petitioner can “obtain the ongoing medical and mental health care he needs.”

9 Id. at 4-5. Accordingly, Petitioner’s attorneys have arranged for him to receive treatment from the

10 following providers: Hillary Foster, Ph.D., a clinical psychologist; Donna Pedroza, a licensed

11 clinical social worker with a specialization in working with parolees from the California

12 Department of Corrections and Rehabilitation; Kissanet Taffere and other clinicians at the

13 Partnerships for Trauma Recovery, an organization that provides culturally-aware and trauma-

14 informed mental health care to asylum seekers and other survivors of trauma; counselors at La

15 Familia Counseling, an organization specializing in the provision of mental health and substance

16 abuse recovery services to the Spanish-speaking community; various medical psychiatric

17 evaluations and appointments at San Francisco General Hospital, Lifelong Urgent Care, and La

18 Clinica de la Raza; and, Luis Retta, a case manager at Migrant Clinicians Network, providing case

19 management and referral services to immigrants. Id. at 5-7. Additionally, Petitioner himself has

20 sought out peer-support through a recovery group (focused on a group therapeutic approach to

21 help those with a history of alcohol abuse) called Grupos Sicoterapia del Doctor Ayala, as well as

22 seeking out ongoing moral and spiritual support by attending several meetings with Pastor Allison

23 Tanner of the Lakeshore Avenue Baptist Church in Oakland, California. Id. at 7.

24 Petitioner’s clinicians at Partnerships for Trauma Recovery have noted that he “is

25 experiencing lasting psychological and emotional consequences arising out of the extensive

26 trauma he has endured; the ongoing uncertainty he faces; and the grief he experiences over the

27 death of his brother and being separated from his family . . . [and] [t]he consequences of these

1 detention.” Id. at 11. Specifically, his clinicians note that “a return to detention could result in

2 another, more lethal suicide attempt that might well result in [his] death.” Id. In short, his

3 treatment providers at Partnerships for Trauma Recovery – Kissanet Taffere, MSW, and Annika

4 Sridharan, Psy.D. – have opined that due to Petitioner’s history of severe trauma, his repeated

5 attempts to take his own life while in detention, and his fragile psychological state, “a return to

6 detention would be tantamount to a death sentence.” Id. at 12-13. In this same vein, Petitioner’s

7 clinical social worker, Donna Reimann Pedroza, LCSW, meets with him twice a week to provide

8 supportive therapy in relation to his anxiety and panic attacks which are rooted in his history of

9 trauma, “including being shot and having family members murdered.” Id. at 15. LCSW Pedroza

10 notes that she “will continue to work with him as he remains in the community . . . [and] that [he]

11 requires continued and ongoing mental health treatment for the foreseeable future,” without which

12 there is cause to be concerned for his health and safety. Id. at 16.

13 The record also contains a follow-up report from Hillary Foster, Ph.D., the psychotherapist

14 who previously performed Petitioner’s comprehensive psychological evaluation while he was still

15 in custody – since his release, Dr. Foster has effected a number of follow-up evaluations and

16 therapy sessions by phone. See id. at 28-35. Incidentally, the government contends that Dr.

17 Foster’s opinions “are not reliable and should be stricken,” because, inter alia, the follow-up

18 evaluations took place by telephone and Dr. Foster was unable to observe Petitioner’s body

19 language and eye-contact. See Resp’t Reply Br. (dkt. 51) at 4-5. Respondents contentions in this

20 regard are unpersuasive and merit no discussion. In any event, following a detailed recitation of

21 her conversations with Petitioner’s counsel regarding the bevy of treatment providers attending to

22 Petitioner’s course of mental health treatment, as well as the descriptions of a series of her own

23 clinical observations and the administration of a number of diagnostic instruments, Dr. Foster

24 noted that major depressive disorder and PTSD “are still the appropriate diagnoses . . . [and] that

25 his improved state of mind is due to his increased physical and psychological safety . . . [but that]

26 his emotional state remains extremely fragile [and] [a]ny gains he has made would be reversed

27 should he be returned to detention [and that] it is very likely he would make another suicide

1 that while imprisoned, Petitioner “was at the edge of his capacity to emotionally survive while in

2 detention,” Dr. Foster reiterated her belief that “it is unlikely that he would survive detention

3 again.” Id. at 33-34. Her treatment recommendation was simple: “[He] needs to continue to remain

4 in the community for his mental and medical wellbeing. In addition to accepted clinical practice

5 and common sense, there is robust research showing that trauma treatment is ineffective when the

6 person is currently living in a traumatic situation . . . One cannot heal from trauma while

7 continually being traumatized.” Id. at 34.

8 Petitioner has also included a letter from Rohini J. Haar, M.D., M.P.H., an attending

9 physician for the Department of Emergency Medicine at Kaiser Hospital in Oakland, and a

10 lecturer and research fellow at the University of California, Berkeley School of Public Health. Id.

11 at 37. Dr. Haar’s letter states that she has both met personally with Petitioner and has also

12 reviewed his medical records and psychological reports, all of which caused her to form the

13 opinion that Petitioner’s “significant ongoing mental health issues” render him

14 immunocompromised such that if he is exposed to SARS COVI-2, “there is a high chance that he

15 will end up in the ICU and may not survive the infection . . . [and that] the risk of infection and

16 psychiatric deterioration is too high to justify detaining him again.” Id. Once again, Respondents

17 suggest that Dr. Haar’s opinion should be stricken as hearsay because “[t]his letter is unsworn,”

18 and, alternatively, that the letter should be stricken under F.R.E. 702 as unreliable because Dr.

19 Haar “has not shown he (sic) is qualified to opine on Petitioner’s psychiatric and mental health

20 condition.” See Resp’t Reply Br. (dkt. 51) at 6. As discussed above, the rules of evidence are

21 relaxed in the preliminary injunction context; further, there is no merit to Respondents’ contention

22 that a licensed physician is unqualified to render an opinion as to a person’s mental health

23 condition.

24 Petitioner has also included a second declaration by Allen S. Keller, M.D., an attending

25 physician in internal medicine at Bellevue Hospital in New York, as well as an Associate

26 Professor at the New York University School of Medicine. See Pet.’s Exh. (dkt. 53) at 71-83. Dr.

27 Keller’s opinion that Petitioner “remains particularly vulnerable to COVID-19” if he is returned to

1 docket of this case, as well as ICE’s National Detention Standards, ICE’s COVID-19 Guidance,

2 ICE’s National Detainee Handbook, the CDC Coronavirus Guidelines, as well as a bevy of current

3 scholarly literature on the COVID-19 pandemic. Id. at 71-72. Dr. Keller’s declaration begins by

4 relating that the virus is transmitted in a number of ways through respiratory droplets that can

5 enter the body through the mouth, nose, and eyes, and which can survive on surfaces for hours or

6 days. Id. at 73.2 Dr. Keller also notes that infected individuals may not develop any symptoms at

7 all, remaining unaware that they are infected, but remaining nonetheless highly contagious. Id.3

8 While certain health conditions render a person more susceptible to contracting COVID-19, Dr.

9 Keller clarifies that “previously healthy individuals can and are dying from COVID.” Id. at 74.

10 Prisoners – being congregate populations – are believed to occupy a particularly high risk of

11 developing and transmitting COVID-19. Id. In fact, “[d]etention facilities, jails, and prisons have

12 become the site of the largest outbreaks of COVID-19 outside hospitals.” Id. Dr. Keller submits

13 that this is so because imprisoned and detained populations live in close quarters and poorly

14 ventilated spaces where practicing social distancing is often impossible due to the sharing of

15 facilities such as sinks, toilets, showers, and exercise equipment without disinfection between use.

16 Id.

17 Lastly, Dr. Keller adds that Petitioner’s vulnerability to developing COVID-19 is

18 heightened due to the fact that his underlying psychiatric conditions – depression, PTSD, and

19 alcohol dependency – mean that he is likely immunocompromised and that “he is particularly

20 vulnerable not only to contracting COVID-19 infection, but to developing severe COVID-related

21

22

23

2 The court will note at this juncture that the fact that SARS COVI-2 can enter the body through the eyes, as

well as the nose and mouth, in combination with the fact that the virus can survive on surfaces for days,

24 leads to the inescapable conclusion that the Yuba County Jail’s distribution of washable cloth masks meant

to cover the mouth and nose – without distributing gloves and eye-protection – constitutes an incomplete

25 approach to defending jail prisoners from infection in light of the fact that Yuba County prisoners are made

to share exercise equipment, as well as sharing bathroom and shower facilities.

26

3 It should not go without mention here, since it is undisputed that one may be highly contagious while

27 showing no symptoms at all, that Respondents’ failure to implement a testing regimen for prisoners and

staff for viral infection while trumpeting the fact that they are “taking the temperatures of all detainees

1 complications including death.” Id. at 75.4 Quite apart from COVID-19, Dr. Keller also notes that

2 due to Petitioner’s underlying psychiatric illnesses and fragile emotional state, returning him to

3 immigration detention would be independently “dangerous to his mental health and well-being.”

4 Id. Having reviewed Respondents’ briefing in this case, Dr. Keller opined that the safety

5 precautions implemented in the Yuba County Jail are “woefully and dangerously inadequate.” Id.

6 at 77. Given the fact that the Yuba County Jail is not testing prisoners and staff for SARS COVI-2

7 infection, Dr. Keller suggests that “[t]he likelihood that infected detainees at YCJ are not being

8 identified is further increased by the fact that a substantial portion of COVID infected individuals

9 are asymptomatic . . . [t]hat this lack of testing continues even as public testing ramps up is a

10 matter of concern . . . [i]t is unclear why the facility is doing this[,] [a]s such, it is highly likely

11 that the number of detainees currently infected, at risk of becoming sick and still contagious for

12 COVID is much higher than we may think.” Id. at 78. Dr. Keller then adds that in jails and prisons

13 where authorities have chosen to implement “widespread PCR testing (of both symptomatic and

14 asymptomatic individuals), the results have been that a significant percentage – at times a majority

15 – of the population has COVID-19.” Id. at 78-79. At bottom, Dr. Keller notes that in congregate

16 settings such as jails and cruise ships, “no realistic amount of social distancing, disinfection, and

17 other preventive measures can render the level of risk equal to that of being in an individual’s

18 home . . . [because] it only takes one immigrant detainee or guard with a high viral load, who is

19 asymptomatic[,] to unknowingly spread the virus.” Id. at 79-80.

20 Additionally, Petitioner has secured a sworn declaration from another immigration

21 detainee who was released from the Yuba County Jail on May 26, 2020. See id. at 261-68.

22 Therein, it was noted that each of the jail’s units (or “pods”) contained common areas that were

23 shared and in which social distancing was unrealistic due to the placement of the phones,

24 television, tables, and benches. Id. at 262-63. During “program time,” all inmates were expected to

25 line up to use the showers, to receive their meal trays, to use the fixed bars for pull-ups and dips in

26

27

4 See also id. at 76 (“There is increasing scientific understanding of the ways in which psychiatric disorders

are also closely tied to the somatic, or physical, systems of the body.”) (citing Gretchen N. Neigh & Fariya

1 close proximity to one another and without any disinfecting between uses. Id. Specifically, the

2 exercise area containing the fixed bars for body-weight exercises – an area measuring 3 feet by 5

3 feet – was often crowded with 8 or more people who were exercising at the same time without any

4 cleaning or disinfecting of the equipment between use. Id. at 263, 267. Also, when meal time and

5 program time would overlap, it was impossible to exercise social distancing in the common areas

6 of the jail because prisoners would eat at shared tables and would be forced to sit close to one

7 another in order to watch television. Id. Given that the exercise yard was on the roof of the jail,

8 prisoners were often crammed tightly into an elevator such that there would be 12 or more

9 prisoners in the elevator at a time while a number of the detainees would either not wear their

10 masks or would wear them improperly covering their mouth but not their nose. Id. at 263-64. As

11 to the masks themselves, they were “homemade masks . . . [that were] all different sizes and

12 designs and made of different material . . . [and] [s]ometimes people had masks that were too

13 small and did not cover down to their chin, or masks that were too big and slipped off their nose.”

14 Id. Consequently, most of the detainees did not wear their masks most of the time, and

15 enforcement was lax. Id. at 264. Finally, Petitioner has included a letter, authored by 18 members

16 of the United States Senate, and addressed to the acting secretary of DHS, in which the senators

17 requested that DHS cease its practice of shuffling individuals across its network of 200 detention

18 facilities because, as of the end of May, ICE had only tested 10 percent of the 25,911 detainees in

19 its custody, and “[o]f the tests conducted, approximately, 50% have been positive.” Id. at 329-30.

20 Despite all this, Respondents persist in their argument that Petitioner is unlikely to succeed

21 on the merits of Claim-25 due to the newly implemented remedial measures, namely, the free bar

22 of soap, the newly created 6-foot space between bunk-beds, and the washable cloth masks

23

24

5 By way of summary, the Petition at bar contains three claims for relief: Claim-1 argues that Petitioner’s

25 release from immigration detention is required by Section 504 of the Rehabilitation Act of 1973 because

his serious mental health conditions have caused him to suffer unequal access to the program of

26 immigration adjudications and because ICE’s continued confinement has been documented as aggravating

his mental disabilities; Claim-2 argues that in light of the COVID-19 pandemic and his

27 immunocompromised status, his continued civil detention constitutes unlawful punishment in violation of

due process; and, Claim-3 argues that Petitioner’s prolonged detention (in excess of four years before his

1 described above. Resp’t Br. (dkt. 44) at 5. Hence, Respondents contend that “even if Petitioner is

2 immunocompromised . . . the precautions taken at YCJ mitigate Petitioner’s risk and achieve a

3 reasonable balance between his health and safety and Respondent’s interest in detention . . . based

4 on an immigration judge’s finding, affirmed by the Board of Immigration Appeals [], that

5 Petitioner was established to be a danger to the community and a flight risk.” Id. at 6.

6 Consequently, Respondents suggest that Petitioner’s “detention would not be excessive in relation

7 to its purpose of protecting the community and ensuring Petitioner is present for removal

8 proceedings . . . [and that] detention is appropriate in light of the new evidence and updated

9 circumstances at YCJ.” Id. Further, Respondents appear to argue that the fact that they have been

10 compelled by the courts of this district to release dozens of prisoners from immigration custody at

11 the Yuba County Jail itself justifies repopulating that same jail with those same persons –

12 including the Petitioner at bar. Id. at 7. Therefore, Respondents submit that “[t]he [subsequent

13 remedial] measures have been effective, resulting in zero confirmed or suspected cases of COVID-

14 19 at YCJ.” Id. However, this is a hollow assurance. Given that Respondents are not performing

15 any testing of persons inside the Yuba County Jail, it is easy to proclaim that there have been zero

16 “confirmed” cases – because testing is the only means of confirmation. Next, and relying on the

17 same evidence of subsequent remedial measures, Respondents contend that Petitioner can no

18 longer make a showing as to a likelihood of irreparable harm if he were returned to custodial

19 confinement at the Yuba County Jail because persons imprisoned there can now “engage in social

20 distancing, have been issued washable cloth masks, and can frequently wash their hands” with

21 their free bars of soap. Id. at 8. As to the balancing of the respective interests, Respondents simply

22 repeat that “Petitioner’s detention would serve the public interest by protecting the public from a

23 person established to be a danger to the community and by ensuring Petitioner’s presence at

24 removal proceedings.” Id.

25 The court rejects all of Respondents’ arguments. With regards to the balancing of the

26 parties’ respective interests, as well as the interests of the public, based on the above-described

27 evidence, it appears highly likely that Petitioner’s mental health conditions would be so

1 suicide or COVID-related complications. Respondents overlook the crucial fact that ensuring

2 Petitioner’s presence at his future immigration proceedings includes taking reasonable measures to

3 ensure his survival. Furthermore, Respondents grossly mischaracterize Petitioner’s four-year-old

4 history of a handful of minor offenses when referring to him as, “a person established to be a

5 danger to the community,” in that two episodes of public drunkenness, one episode of a domestic

6 disturbance, and one instance of going to his wife’s home in violation of a court order (for which

7 he received a cumulative time-served sentence of 65-days) could not conceivably justify keeping

8 him in jail for years on end while the administrative tribunals of the Department of Justice

9 repeatedly bounce his asylum case back and forth between their various levels of review with no

10 end in sight. Thus, as was the case before, the court now finds again that the balancing of the

11 parties’ respective interests, as well as the interests of the public, overwhelmingly weigh in favor

12 of Petitioner’s continued release. As to irreparable harm, based on the above-discussed evidence, it

13 appears highly likely that the combination of the Petitioner’s immunocompromised state and the

14 inadequacy of the protective measures taken by Respondents at the Yuba County Jail would cause

15 him to develop serious, and perhaps fatal, complications if he were to become infected with SARS

16 COVI-2 and develop COVID-19. Furthermore, the record is also teeming with credible and

17 reliable evidence that Petitioner’s mental health conditions were so aggravated by the four years

18 he spent in Respondents’ custody, that if he were readmitted to jail his next suicide attempt would

19 likely succeed. In short, Petitioner has clearly shown a high degree of likelihood that he would

20 suffer irreparable harm if the court did not enjoin Respondents from continuing to jail him during

21 the pendency of his asylum case. Lastly, on the basis of the above-discussed evidence, the court

22 finds that Petitioner has clearly demonstrated a high degree of likelihood of success on the merits

23 of Claim-2. Accordingly, an injunction will issue on the same terms and conditions attending the

24 court’s previously imposed TRO.

25 The only matter that still needs to be addressed is the parties’ respective positions

26 regarding the final disposition of the habeas corpus petition at the heart of this case. Respondents

27 contend, based on their now-rejected arguments, that the court should dismiss or deny each of the

1 Petitioner contends that his petition should be granted for the same reasons articulated in his

2 arguments as to why he is likely to succeed on the merits of his claims. See Pet.’s Br. (dkt. 48) at

3 10-11. At this point in time, the court will adopt neither of the proposed courses of action. For the

4 || reasons discussed above, as well as those expounded in the court’s previous order granting the

5 || motion fora TRO, Respondent’s request to dismiss or deny the Petition is DENIED. Given that

6 || each of the three claims articulated in the Petition seek his release from custody — 1.e., relief that

7 has already been (for the time being) secured — Claim-1 and Claim-3 were rendered unripe for

8 || adjudication by the issuance of the TRO and its conversion into a preliminary injunction.

9 || Accordingly, Claim-1 and Claim-3 are herewith STAYED until such time that the factual

10 || landscape changes such as to render those claims once again ripe for adjudication (e.g., the

11 development of a vaccine or an effective and widely available treatment for COVID-19, or the

12 || final resolution of Petitioner’s asylum case, or the implementation of such meaningful changes in

5 13 || Respondents’ custodial arrangements as would address all of the concerns for Petitioner’s safety

14 and wellbeing described herein). In the event that there is such a change to the factual landscape

3 15 underlying Claim-2 — that is, developments that would change the calculus on which this decision

16 || rests — the parties ace ORDERED to promptly inform the court through a jointly-filed status

5 17 report. In the meantime, for the reasons stated above, as well as those stated in the court’s previous

S 18 || order issuing a TRO, Petitioner’s request for a preliminary injunction is GRANTED. Respondents

19 and all of their officers, agents, employees, servants, and attorneys are ORDERED during the

20 || pendency of this case to maintain the status quo.

21 IT IS SO ORDERED.

22 Dated: July 6, 2020

23 Mt Z 7

24

25 ROBERT M. ILLMAN

United States Magistrate Judge

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