# Rehman v. Moreno

> District Court, S.D. California · November 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10082350

## Case

- **Court:** District Court, S.D. California
- **Decided:** November 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10082350

## How later opinions describe it (automated extraction)

- holding that 20 conditions are punitive where they are “employed to achieve objectives that could be 21 accomplished in so many alternative and less harsh methods” (citation omitted)

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ABDUL REHMAN, Case No.: 20-cv-1741-WQH-BLM

12 Petitioner,
ORDER
13 v.
14 SIXTO MORENO, Facility
Administrator, Imperial Regional
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Detention Center, MTC; et al.,
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Respondents.
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HAYES, Judge:
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The matters before the Court are the Petition for Writ of Habeas Corpus pursuant to
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28 U.S.C. § 2241 filed by Petitioner Abdul Rehman (ECF No. 1) and the Motion to File
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Documents Under Seal filed by Respondents (ECF No. 4).
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I. PROCEDURAL BACKGROUND
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On September 4, 2020, Petitioner Abdul Rehman filed a Petition for Writ of Habeas
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Corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1). Petitioner alleges that he is a citizen of
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Pakistan and is an immigration detainee at the Imperial Regional Detention Facility
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(“IRDF”). Petitioner alleges that his detention has been unlawfully prolonged and places
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him at a severe risk of exposure to COVID-19 in violation of his substantive and procedural
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due process rights under the Fifth Amendment of the United States Constitution; the
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1 Administrative Procedure Act, 5 U.S.C. §§ 702(2)(A) and 706(1); and international law.
2 Petitioner requests that the Court order Petitioner’s immediate release from custody.
3 On September 8, 2020, the Court ordered Respondents to show cause why the
4 Petition should not be granted by filing a written return. (ECF No. 2). On September 22,
5 2020, Respondents filed a Return to the Petition (ECF No. 3) and a Motion to File
6 Documents Under Seal (ECF No. 4). On October 12, 2020, Petitioner filed a Traverse.
7 (ECF No. 8).
8 II. FACTS
9 a. Petitioner’s Immigration History
10 Petitioner is twenty years old and is a citizen of Pakistan. (Record of
11 Deportable/Inadmissible Alien, ECF No. 3-2 at 1). On July 22, 2019, Petitioner was
12 apprehended approximately 300 yards north of the United States/Mexico border, near the
13 Calexico Port of Entry. (Id. at 2). The Department of Homeland Security (“DHS”)
14 determined that Petitioner was inadmissible and ordered Petitioner removed from the
15 United States. (Notice and Order of Expedited Removal, ECF No. 3-2 at 6). Petitioner
16 requested asylum.
17 On August 14, 2019, Petitioner was taken into U.S. Immigration and Customs
18 Enforcement (“ICE”) custody at IRDF pending removal to Pakistan. On September 18,
19 2019, an asylum officer conducted a credible fear interview. On October 24, 2019, the
20 asylum officer determined that Petitioner did not have a credible fear of persecution or
21 torture. Petitioner requested review by an immigration judge. (See Decision to Continue
22 Detention, ECF No. 3-2 at 20). On October 31, 2019, the immigration judge determined
23 that there was a possibility that Petitioner could establish eligibility for asylum and that
24 Petitioner established a fear of persecution or torture. The immigration judge vacated
25 DHS’s expedited removal order and commenced regular removal proceedings. (Order of
26 the Immigration Judge, ECF No. 3-2 at 7). Petitioner’s master calendar hearing was
27 continued seven times—six times at the request of Petitioner and one time at the request of
28 the government. Petitioner has an upcoming individual hearing on December 9, 2020.
1 After continuances requested by Petitioner and the government, Petitioner was given
2 a bond hearing on March 9, 2020. (Bond Decision, ECF No. 3-2 at 12). On March 12,
3 2020, the immigration judge denied Petitioner’s request for bond, finding that Petitioner
4 failed to meet his burden to “assuage[e] the general concerns raised by evidence which
5 shows he was smuggled by a group which willingly transports individuals involved with
6 terrorism” and establish that he is not a threat to national security. (Id. at 15). The
7 immigration judge further determined that Petitioner is “an extreme flight risk such that no
8 amount of bond would mitigate.” (Id. at 15-16).
9 On July 29, 2020, ICE reviewed Petitioner’s custody and determined that Petitioner
10 failed to “demonstrate[ ] or provide[ ] enough information that will mitigate [his] flight
11 risk,” and Petitioner would remain in custody pending removal. (Decision to Continue
12 Detention, ECF No. 3-2 at 20). On July 30, 2020, Petitioner filed a motion for a custody
13 redetermination hearing. (ECF No. 8-3 at 28-32). On August 3, 2020, the immigration
14 judge denied the motion, finding that there was no change in circumstances since the March
15 9 bond hearing that would warrant a redetermination hearing. (Order of the Immigration
16 Judge, ECF No. 3-2 at 21). Petitioner did not appeal. On September 15, 2020, ICE again
17 reviewed Petitioner’s custody and determined that Petitioner failed to “demonstrate[ ] or
18 provide[ ] enough information that will mitigate [his] flight risk,” and Petitioner would
19 remain in custody pending removal. (Decision to Continue Detention, ECF No. 3-2 at 25).
20 b. Petitioner’s Medical History and Conditions at IRDF
21 Respondents submitted over 600 pages of Petitioner’s IRDF medical records.
22 Petitioner has been seen nearly a hundred times by medical staff at IRDF, mostly for
23 complaints of gastrointestinal pain, chest pain, and shortness of breath. At the intake
24 screening on August 14, 2019, Petitioner did not indicate any history of asthma or breathing
25 problems. (ECF No. 5-4 at 148). For the first time on April 16, 2020, Petitioner presented
26 with shortness of breath and told the registered nurse that he was using a fellow detainee’s
27 inhaler. The registered nurse noted that Petitioner has a history of asthma. (ECF No. 5-3 at
28 26). After April 16, 2020, Petitioner repeatedly presented with chest pain and shortness of
1 breath. (See, e.g., ECF No. 5-2 at 48, 138, 140, 147). On July 16, 2020, a medical doctor
2 diagnosed Petitioner with “mild, intermittent asthma, uncomplicated.” (Id. at 19). The
3 medical doctor noted that Petitioner’s asthma is “not considered to be a risk of covid-19.”
4 (Id. at 20). Petitioner has been provided medication for his gastrointestinal concerns and
5 asthma, has been prescribed a special diet, and has been given advice about foods to avoid.
6 Since the beginning of the COVID-19 pandemic, IRDF has implemented policies
7 and procedures to protect detainees from COVID-19 exposure and infection. (Marreno
8 Decl., ECF No. 3-5 ¶¶ 10-12). Measures include staff education and training, detainee
9 education, screening of staff and other visitors to IRDF, increased and enhanced cleaning
10 and sanitation, provision of hygiene supplies, social distancing when possible, staff and
11 detainee use of personal protective equipment, COVID-19 screening of all incoming
12 detainees and quarantining when possible, suspension of social visits, no-contact legal
13 visits, and isolation and quarantine of detainees with suspected or known cases of COVID-
14 19. (Id. ¶¶ 13-96).
15 IRDF has significantly reduced its detainee population. IRDF has the capacity to
16 house 782 detainees. As of September 16, 2020, there were only 272 detainees at IRDF,
17 approximately 34.78% of total capacity. (Id. ¶ 97). Of the thirteen units currently used for
18 housing at IRDF, capacity rates range from 14.06% to 57.81%, making social distancing
19 possible. (Id. ¶ 101). As of September 16, 2020, 195 detainees had been tested for COVID-
20 19. Only seven detainees have tested positive. Two tests were pending as of September 16,
21 2020. No IRDF detainees have died from COVID-19, and the last positive COVID-19 test
22 for an ICE detainee assigned to population housing was on May 29, 2020. (Id. ¶ 98).
23 III. DISCUSSION
24 a. Detention During the COVID-19 Pandemic
25 Petitioner asserts that his detention at IRDF during the COVID-19 pandemic
26 amounts to punishment and violates his substantive due process rights and rights to life and
27 health under international law. Petitioner contends that he has a heightened risk of severe
28 illness from COVID-19 due to asthma. Petitioner contends that Respondents have failed to
1 provide adequate medical care and have failed to take precautions to prevent the spread of
2 COVID-19.1
3 Respondents contend that Petitioner fails to show that the steps Respondents have
4 taken to prevent and treat COVID-19 at IRDF are objectively unreasonable. Respondents
5 contend that Petitioner’s medical records demonstrate that he has received adequate
6 medical treatment and directly refute his allegations that he is at a high risk of severe illness
7 from COVID-19.
8 To succeed on a habeas petition, a petitioner must show that he is “in custody in
9 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
10 2241(c)(3). Individuals detained pursuant to immigration violations are civil detainees.
11 Zadvydas v. Davis, 533 U.S. 678, 690 (2001). “[U]nder the Due Process Clause, a detainee
12 may not be punished prior to an adjudication of guilt in accordance with due process of
13 law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). The government violates the Due Process
14 Clause when a civil detainee is “subjected to conditions that ‘amount to punishment.’”
15 Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (quoting Bell, 441 U.S. at 536). A
16 petitioner can demonstrate punitive conditions by showing that the challenged condition
17 is: (1) expressly intended to punish; (2) not rationally related to a legitimate government
18 objective; or (3) excessive in relation to a legitimate government objective. See Kingsley
19 v. Hendrickson, 576 U.S. 389, 398 (2015); see also Jones, 393 F.3d at 933-34 (holding that
20 conditions are punitive where they are “employed to achieve objectives that could be
21 accomplished in so many alternative and less harsh methods” (citation omitted)).
22 In addition, “when the State takes a person into its custody and holds him there
23 against his will, the Constitution imposes upon it a corresponding duty to assume some
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26 1 In the Traverse, Petitioner asserts that “Respondents’ disparate treatment of Petitioner based on his
disabilities and Respondents’ failure to provide Petitioner with reasonable accommodations constitute
27 disability discrimination in violation of Section 504 [of the Rehabilitation Act].” (ECF No. 8 at 29).
Petitioner does not raise a disability discrimination claim in the Petition, and the Court does not address
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1 responsibility for his safety and general well-being.” DeShaney v. Winnebago Cty. Dep’t
2 of Soc. Servs., 489 U.S. 189, 199-200 (1989); see Henry A. v. Willden, 678 F.3d 991, 998
3 (9th Cir. 2012) (when the government takes custody of a person, it creates a “special
4 relationship” wherein the government assumes responsibility for that person’s safety and
5 well-being (citation omitted)). The government violates the Due Process Clause if it fails
6 to provide civil detainees with “basic human needs,” including “food, clothing, shelter,
7 medical care, and reasonable safety.” DeShaney, 489 U.S. at 200.
8 The Court of Appeals for the Ninth Circuit analyzes constitutional claims based on
9 a failure to provide for basic human needs under an objective deliberate indifference
10 standard. See Castro v. Cty. of L.A., 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc). Under
11 the objective deliberate indifference standard, the petitioner must show:
12 (1) [t]he defendant made an intentional decision with respect to the conditions
under which the plaintiff was confined; (2) [t]hose conditions put the plaintiff
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at substantial risk of suffering serious harm;(3) [t]he defendant did not take
14 reasonable available measures to abate that risk, even though a reasonable
officer in the circumstances would have appreciated the high degree of risk
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involved—making the consequences of the defendant’s conduct obvious; and
16 (4) [b]y not taking such measures, the defendant caused the plaintiff’s injuries.

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Id. “With respect to the third element, the defendant's conduct must be objectively
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unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each
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particular case.’” Id. (alteration in original) (quoting Kingsley, 135 S. Ct. at 2473).
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The Supreme Court has recognized that the detention of individuals pending their
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removal proceedings is rationally related to the legitimate governmental interest of
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ensuring their appearance for their deportation proceedings and preventing danger to the
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community. See Zadvydas, 533 U.S. at 690. “[D]etention during deportation proceedings
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[is] a constitutionally valid aspect of the deportation process.” Demore v. Kim, 538 U.S.
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510, 523 (2003); see Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018) (“Detention during
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[immigration] proceedings gives immigration officials time to determine an alien’s status
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without running the risk of the alien’s either absconding or engaging in criminal activity
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1 before a final decision can be made.”). In this case, the government has a strong interest in
2 Petitioner’s continued detention. The immigration judge determined that Petitioner is “an
3 extreme flight risk” and failed to “assuage[e] the general concerns raised by evidence
4 which shows he was smuggled by a group which willingly transports individuals involved
5 with terrorism” and establish that he is not a threat to national security. (Bond Decision,
6 ECF No. 3-2 at 15-16).
7 In addition, Respondents are aware of the risks posed by COVID-19 and have taken
8 substantial steps to respond to the COVID-19 pandemic. IRDF is operating at less than half
9 capacity. Practices have been implemented to provide detainees with personal protective
10 equipment and enhanced cleaning measures, and to promote the maintenance of six feet of
11 physical distance among detainees and staff at IRDF. Respondents’ data show that their
12 responsive measures have been effective at reducing the spread of COVID-19. No IRDF
13 detainees have died from COVID-19, and the last positive COVID-19 test for an ICE
14 detainee assigned to population housing was on May 29, 2020. (Marreno Decl., ECF No.
15 ECF No. 3-5 ¶ 98). Although Petitioner suffers from asthma and gastrointestinal concerns,
16 the record shows that Petitioner has adequate access to medical care and that IRDF has
17 taken adequate steps to respond to the COVID-19 outbreak. Petitioner has not
18 demonstrated that his continued detention under the current conditions at OMDC is
19 excessive in relation to the government’s legitimate objective. Petitioner fails to provide
20 evidence that the conditions at OMDC place him at a “substantial risk of suffering serious
21 harm” or that the measures Respondents have taken to address the COVID-19 outbreak are
22 “objectively unreasonable” in violation of Petitioner’s substantive due process rights or
23 rights to life and health under international law. Castro, 833 F.3d at 1071.
24 b. Prolonged Detention
25 Petitioner asserts that his detention violates his procedural due process rights
26 because he continues to be detained “for an indefinite amount of time without a hearing to
27 determine whether his prolonged detention is justified . . . .” (ECF No. 1 at 21). Petitioner
28 contends that the decisions of the immigration judge to deny a custody redetermination
1 hearing and of ICE to deny his requests for parole were “made in an arbitrary and capricious
2 fashion” in violation of his procedural due process rights and the Administrative Procedure
3 Act, 5 U.S.C. §§ 702(2)(A) and 706(1), without considering Petitioner’s evidence that he
4 is not a flight risk, Petitioner’s evidence that he has strong community ties, and the impact
5 of COVID-19. (Id. at 35). Petitioner contends that his prolonged detention violates his
6 substantive due process rights because his asylum case may take years because of the
7 backlog of immigration cases and delays due to COVID-19, and his continued detention
8 does not bear a reasonable relation to a legitimate government purpose.
9 Respondents contend that Petitioner failed to exhaust administrative remedies
10 because he did not appeal his adverse custody redetermination ruling to the Board of
11 Immigration Appeals (“BIA”). Respondents contend that there is no presumptively
12 unreasonable length of detention because Petitioner’s immigration proceedings are
13 pending. Respondents contend that Petitioner has repeatedly requested continuances of his
14 asylum proceedings, is a flight risk and a risk to national security and public safety, and
15 has been afforded full procedural due process.
16 “[T]he Fifth Amendment entitles aliens to due process of law in deportation
17 proceedings.” Demore, 538 U.S. at 523. Due process “is flexible and calls for such
18 procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S.
19 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Courts must
20 consider 1) “the private interest that will be affected by the official action;” 2) the
21 government interest, including the burdens additional process would cause; and 3) “the risk
22 of an erroneous deprivation of such interest through the procedures used, and the probable
23 value, if any, of additional or substitute procedural safeguards.” Id. at 335.
24 In habeas cases, courts “may require” the exhaustion of administrative remedies
25 when:
26 (1) agency expertise makes agency consideration necessary to generate a
proper record and reach a proper decision; (2) relaxation of the requirement
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would encourage the deliberate bypass of the administrative scheme; and (3)
28 administrative review is likely to allow the agency to correct its own mistakes
1 and to preclude the need for judicial review.

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Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (quoting Puga v. Chertoff, 488
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F.3d 812, 815 (9th Cir. 2007)). If a petitioner fails to exhaust prudentially required
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administrative remedies, “a district court ordinarily should either dismiss the petition
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without prejudice or stay the proceedings until the petitioner has exhausted remedies.” Id.
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(quoting Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011)). However, “a court
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may waive the prudential exhaustion requirement if ‘administrative remedies are
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inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture,
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irreparable injury will result, or the administrative proceedings would be void.’” Id.
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(quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)).
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In this case, Petitioner was given a bond hearing on March 9, 2020. On March 12,
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2020, the immigration judge denied Petitioner’s request for bond. (Bond Decision, ECF
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No. 3-2 at 15-16). On July 30, 2020, Petitioner filed a motion for a custody redetermination
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hearing. (ECF No. 8-3 at 28-32). On August 3, 2020, the immigration judge denied the
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motion, finding that there has been no change in circumstances since the March 9 bond
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hearing that would warrant a redetermination hearing. (Order of the Immigration Judge,
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ECF No. 3-2 at 21). Petitioner did not appeal. See 8 C.F.R. § 1003.19(f) (a detainee may
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appeal the determination of an immigration judge with respect to custody status or bond
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redetermination to the BIA). Petitioner fails to set forth evidence demonstrating the
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exhaustion of administrative remedies or justifying a waiver of the exhaustion requirement
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as to his claims that the immigration judge’s denial of a custody redetermination hearing
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violated Petitioner’s due process rights or 5 U.S.C. §§ 702(2)(A) and 706(1). See Leonardo,
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646 F.3d at 1160 (“Leonardo pursued habeas review of the IJ’s adverse bond determination
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before appealing to the BIA. This short cut was improper. Leonardo should have exhausted
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administrative remedies by appealing to the BIA before asking the federal district court to
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review the IJ’s decision.”); see also Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir.
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1 2003) (a petitioner “must exhaust administrative remedies before raising . . . constitutional
2 claims in a habeas petition when those claims are reviewable by the BIA on appeal”).
3 In addition, DHS has authority to detain an alien “pending a decision on whether the
4 alien is to be removed from the United States.” 8 U.S.C. § 1226(a). Although § 1226(a)
5 “does not authorize indefinite detention,” the holding in Zadvydas that post-removal
6 detention of more than six months is presumptively unreasonable does not apply where, as
7 in this case, the petitioner’s removal proceedings are pending. Prieto-Romero v. Clark, 534
8 F.3d 1053, 1063 (9th Cir. 2008) (finding no constitutional violation in detention of over
9 three-years under § 1226(a)). Petitioner’s asylum claim is pending. Petitioner has been
10 detained for fourteen months, received a bond hearing six months ago, and received a
11 custody redetermination decision two months ago. The immigration judge determined that
12 Petitioner failed to establish that he is not a threat to national security and is an extreme
13 flight risk. ICE reviewed Petitioner’s custody on July 29, 2020, and September 15, 2020,
14 finding that Petitioner failed to “demonstrate[ ] or provide[ ] enough information that will
15 mitigate [his] flight risk,” and Petitioner would remain in custody pending removal.
16 (Decisions to Continue Detention, ECF No. 3-2 at 20, 25). Petitioner has requested six
17 continuances of his asylum hearing and has an upcoming individual hearing on December
18 9, 2020.
19 This Court has determined that the government has a strong interest in Petitioner’s
20 continued detention pending his asylum determination. ICE has provided Petitioner with
21 periodic reviews of his custody documenting the reasons for Petitioner’s continued
22 detention, which are supported by the immigration judge’s bond decision. Further,
23 Petitioner has not demonstrated that his continued detention is excessive in relation to the
24 government’s legitimate objective, that the decisions of ICE to continue Petitioner’s
25 detention were arbitrary and capricious, or that ICE unreasonably withheld or delayed
26 review of Petitioner’s detention. See 5 U.S.C. § 702(2)(A) (allowing a reviewing court to
27 set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise
28 not in accordance with law”); 5 U.S.C. § 706(1) (allowing a reviewing court to “compel
1 || agency action unlawfully withheld or unreasonably delayed”). Petitioner has failed to show
2 || that his continued detention violates his substantive or procedural due process rights or the
3 || Administrative Procedure Act. The Court concludes that Petitioner fails to demonstrate that
4 || his continued detention violates “the Constitution or laws or treaties of the United States.”
5 }}28 U.S.C. § 2241(c)(3).
6 CONCLUSION
7 IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus pursuant to
8 U.S.C. § 2241 filed by Petitioner Abdul Rehman (ECF No. 1) is denied.
9 IT IS FURTHER ORDERED that the Motion to File Documents Under Seal filed
10 Respondents (ECF No. 4) is granted.
11 Dated: November 3, 2020 BE: te Ze. A a
12 Hon, William Q. Hayes
13 United States District Court
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10082350. Public record. Not legal advice.