# Garcia Diaz v. Acuff

> District Court, S.D. Illinois · May 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10152169

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** May 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ANA GABRIELA GARCIA DIAZ, )
a.k.a. ANTON GARCIA DIAZ, )
)
Petitioner, )
)
vs. ) Case No. 20-cv-352-SMY
)
DAMON ACUFF, in his capacity as )
Warden, Pulaski County Detention Center, )
)
ROBERT GUADIAN, in his official capacity )
as Acting Field Office Director, Chicago )
Field Office, U.S. Immigration and Customs )
Enforcement, )
)
MATTHEW T. ALBENCE, in his official )
capacity as Deputy Director and Senior )
Official Performing the Duties of Director of )
U.S. Immigration and Customs Enforcement, )
)
and )
CHAD WOLF, in his official capacity as )
Acting Secretary of the U.S. Department of )
Homeland Security, )
)
Respondents. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Petitioner Ana Gabriela Garcia Diaz, a transgender man also known as Anton Garcia
Diaz, is currently in immigration detention at the Pulaski County Detention Center in Ullin,
Illinois (“Pulaski”). He filed an “Emergency Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 and Complaint for Injunctive Relief” on April 14, 2020, raising three claims:
(1) his continued detention under conditions at Pulaski that place him at risk of infection with
COVID-19 and severe illness or death violates his Fifth Amendment right to substantive due
process; (2) Respondents’ failure to provide adequate medical care in order to protect him from
infection with COVID-19 violates his Fifth Amendment right to substantive due process; and
(3) his detention – currently 8 months in duration – has become unconstitutionally prolonged
and violates his Fifth Amendment procedural due process rights (Doc. 1, pp. 48-52). On April

21, 2020, the Court denied Garcia Diaz’ request for a preliminary injunction ordering his
immediate release and set a briefing schedule on the remaining claims. (Doc. 17).
Based upon the Court’s review and consideration of the parties’ briefs and supplementary
documentation, and for the following reasons, Garcia Diaz’s request for habeas corpus relief is
DENIED.
Background
Garcia Diaz is a 31-year-old native of Honduras. He entered the United States without
inspection in 2008 and was removed on April 7, 2008 pursuant to 8 U.S.C. § 1225(b)(1). (Doc. 9-
1, ¶ 6; Doc. 21, p. 4). He subsequently returned to the U.S. without inspection, and immigration
authorities took steps to deport him by reinstating the April 7, 2008 expedited-removal order. Id.

Garcia Diaz claimed he feared returning to Honduras, but an asylum officer concluded he did not
have a reasonable fear of persecution or torture. That determination was affirmed by an
Immigration Judge (“IJ”) and he was removed from the U.S. for a second time on August 5, 2009.
Garcia Diaz re-entered the U.S. again1 and on September 26, 2019, was taken into custody
by Immigration and Customs Enforcement (“ICE”) after an arrest for resisting or obstructing an
officer.2 His case was processed as a “reinstatement of removal.” (Doc. 21 p. 4). He has applied

1 The date when Garcia Diaz re-entered the U.S. is unknown, but he was present on January 15, 2016, when he was
convicted in Lafayette County, Wisconsin, of a civil violation for disorderly conduct. (Doc. 9-1, ¶ 13; Doc. 21, p. 4).
He was convicted of resisting or obstructing an officer on December 21, 2018 in Lafayette County, Wisconsin and a
civil forfeiture fine was imposed. Id.
2 The record does not indicate that any criminal charges or conviction ensued following this arrest.
for withholding of removal and protection under the Convention Against Torture (“CAT”) on
account of his LGBTQ identification and his fear of serious harm or death if he were to return to
Honduras. An IJ found Garcia Diaz’ account of his fears to be credible and “sufficiently
corroborated,” but denied his request for relief on February 10, 2020. (Doc. 21, p. 5; Doc. 26-3,

pp. 3, 8). Garcia Diaz appealed the judge’s ruling on March 4, 2020 and the matter is now pending
before the Board of Immigration Appeals (“BIA”). (Doc. 1, pp. 8, 51; Doc. 1-1; Doc. 21, p. 5).
The BIA has ordered the parties to submit their briefs by June 1, 2020. (Doc. 26-2).
ICE’s Enforcement and Removal Office (“ERO”) reviewed Garcia Diaz’ custody status on
December 23, 2019 and determined he should remain in detention. (Doc. 21, p. 5; Doc. 21-1, p.
3). ERO conducted a follow-up custody review, including a May 4, 2020 personal interview with
Garcia Diaz. The agency continued his detention on May 5, 2020.3
Garcia Diaz arrived at Pulaski on March 13, 2020 and was placed in the female housing
unit based on his self-identification at the time. Pulaski has one all-female housing unit (D-Pod)
consisting of 12 two-person cells, each with its own sink and toilet. (Doc. 21-2, p. 2). Since April

5, 2020, Garcia Diaz has been housed alone in a cell in D-Pod. (Doc. 9, p. 9; Doc. 21, p. 7; Doc.
21-1, p. 4). As of May 22, 2020, five detainees remained in the female housing unit. (Doc. 26-1,
p. 2).
During Garcia Diaz’ detention at Pulaski, a total of 29 ICE detainees (all male) have tested
positive for COVID-19. Ten of these individuals have active cases and remain in medical isolation
and the others have recovered. (Doc. 26-1, pp. 1-2). No female detainees have tested positive for
COVID-19 or have shown any symptoms warranting testing. Id. Pulaski has the capacity to house
more than 200 ICE detainees but currently holds only 73. No new ICE detainees have entered the

3 According to Respondent, any future “Post-Order Custody Reviews” for Garcia Diaz will be conducted by ICE’s
Headquarters Post-Order Detention Unit. (Doc. 21, p. 6; Doc. 21-1, pp. 2-3).
facility since April 2, 2020. Two-thirds of Pulaski staff members have been tested for COVID-19
and 15 tested positive; all of whom have recovered. No staff were positive for the virus as of May
22, 2020. (Doc. 21-2, p. 6; Doc. 26-1, p. 2).
Garcia Diaz has been diagnosed with depression for which he regularly takes prescription

medication. (Doc. 22). He also takes medication for allergies. Id. He asserts that his medical
conditions place him at elevated risk for complications should he become infected with COVID-
19. (Doc. 1, pp. 3-4).
Discussion
Respondents maintain that Garcia Diaz is subject to an “administratively final removal
order” and is thus detained pursuant to 8 U.S.C. § 1231, implemented at 8 C.F.R. § 241.1 et seq.
(Doc. 21, p. 1-4). They contend his detention is mandatory while removal is pending, but that a
detainee who is kept in custody beyond the usual 90-day removal period may seek release if he
can show that “there is no significant likelihood of removal” to his home country or a third country
“in the reasonably foreseeable future.” 8 C.F.R. § 241.13(a); (Doc. 21, p. 2). They acknowledge

that withholding of removal may be granted under 8 U.S.C. § 1231(b)(3) and protection may be
available under the CAT. Id.
Garcia Diaz argues that his reinstated order of removal is not a “final administrative order”
because his request for withholding of removal is still being adjudicated, and that 8 U.S.C. § 1231
is not the statute governing his detention. (Doc. 23, p. 1). He notes a Circuit split as to whether 8
U.S.C. § 1226(a) (under which detention is discretionary, not mandatory) or 8 U.S.C. § 1231 is
the source of detention authority for a person whose case is in this procedural posture, and that the
Seventh Circuit has not addressed the question. (Doc. 1, p. 39; Doc. 23, pp. 1-2). He further
argues that this Court can address his allegedly unconstitutionally prolonged detention without
resolving that split. The Court agrees.
Courts may consider individualized challenges to the constitutionality of immigration
detention. See Jennings v. Rodriguez, 138 S. Ct. 830, 851-52 (2018); Nielsen v. Preap, 139 S. Ct.

954, 972 (2019) (“Our decision today on the meaning of that statutory provision [§ 1226(c)] does
not foreclose as-applied challenges—that is, constitutional challenges to applications of the statute
as we have now read it.”); Preiser v. Rodriguez, 411 U.S. 475, 484, 500 (1973); Zadvydas v. Davis,
533 U.S. 678, 687 (2001); Vargas v. Beth, 378 F. Supp. 3d 716, 722-23 (E.D. Wisc. 2019) (federal
courts have jurisdiction over due process challenges to detention) (collecting cases). And, it has
long been established that detainees are entitled to procedural due process in relation to restraints
on their liberty. Demore v. Kim, 538 U.S. 510, 523 (2003); Zadvydas, 533 U.S. at 690. At the
same time, the government has a legitimate interest in protecting the community from any danger
posed by a detainee and in ensuring his or her appearance at immigration proceedings. As such,
when considering a habeas petition challenging detention, the Court must determine whether the

particular detention at issue is reasonably related to one of these governmental interests – the
government must justify continued civil confinement with “clear and convincing evidence” that
the detainee is a flight risk or poses a danger to the community. Foucha v. Louisiana, 504 U.S.
71, 80 (1992). See also Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
While the ordinarily “brief” detention associated with pending removal proceedings is
constitutionally permissible (see Demore, 538 U.S. at 528-31, observing that detention under
§ 1226(c) lasts for less than 90 days “in the majority of cases”), detention that becomes indefinite
raises “serious constitutional concerns.” Zadvydas, 533 U.S. at 682 (detention longer than 6
months during attempts to execute final order of removal was presumptively unreasonable). In
assessing the constitutionality of continued immigration detention, courts consider a number of
relevant factors, including: the length of detention to date; whether it exceeds the time the detainee
was in prison for the crime that prompted removal proceedings; the likely duration of future
detention; the conditions of detention; whether civil detention is meaningfully different from

punitive detention; whether delays in the removal proceedings were caused by the detainee or the
government; and the likelihood that removal proceedings will be successful in light of any
colorable defenses to removal. See Vargas v. Beth, 378 F. Supp. 3d 716, 727 (E.D. Wisc. 2019);
Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858 (D. Minn. 2019). The Court finds this analysis to
be applicable, regardless of whether the source of detention is 8 U.S.C. § 1226(a) or 8 U.S.C.
§ 1231.
Here, Respondents argue, and have produced clear and convincing evidence to support
Garcia Diaz’ continued detention – that he poses a flight risk.4 Garcia Diaz’ history of three
unauthorized entries to the U.S. evidences his propensity for noncompliance with immigration
requirements. That history also leads to a reasonable conclusion of a risk that he will fail to appear

for hearings or for removal (if it is ultimately ordered) if he were released from detention.
As to the conditions of Garcia Diaz’ confinement at Pulaski, while the Court recognizes
the risk of exposure to COVID-19 in that facility, Garcia Diaz does not suffer from any medical
condition that makes him uniquely vulnerable to infection or to a heightened risk of complications
according to Center for Disease Control (CDC) guidelines. See
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
Further, he is currently housed alone, in a separate cell, in the all-female housing unit which
currently houses only 4 other detainees. No female detainees have tested positive for COVID-19,

4 Respondents do not contend that Garcia Diaz would pose a danger to the community if released, and his
lack of criminal convictions would undermine any such argument.
and detainees in his housing unit do not mix with detainees in other units. Hand sanitizer, soap,
and masks have been provided to all detainees, and those in the female housing unit are able to
maintain social distancing with their housing arrangement. Garcia Diaz has received regular and
timely medical and mental health care while detained at Pulaski, and testing and medical isolation

units are available for detainees who show symptoms indicative of possible COVID-19 infection.
In sum, Garcia Diaz has not established that the conditions of his confinement amount to
punishment so as to violate his due process rights as alleged in his Petition.
Regarding Garcia Diaz’ claim that the length of his detention has become
unconstitutionally prolonged, the Court notes that 8 months does not significantly exceed the
presumptive 6-month benchmark referenced in Zadvydas. Moreover, while certainly not
blameworthy, by exercising his right to appeal, Garcia Diaz has contributed to the length of his
detention to some degree. That said, the briefing schedule for his pending appeal before the BIA
requires both him and the Government to submit their briefs by June 1, 2020, indicating that his
appeal is moving forward and is not currently unreasonably delayed. And while Garcia Diaz may

have a colorable claim to avoid removal to Honduras, there is also a possibility that he could be
removed to a third country. Thus, he has not shown that there is no significant likelihood of his
removal in the reasonably foreseeable future. Zadvydas, 533 U.S. at 701.
Balancing all the relevant considerations, at this juncture, the Court concludes that
Respondents’ interest in detaining Garcia Diaz to ensure his availability for further proceedings or
for removal outweighs his interest in regaining his liberty.
Disposition
For the foregoing reasons, Petitioner Ana Gabriela, a.k.a. Anton, Garcia Diaz’ request for
habeas corpus relief is DENIED and this case is DISMISSED. The dismissal is without prejudice
to Garcia Diaz filing a future habeas corpus action if the length and/or circumstances of his
detention substantially change. The Clerk of Court is DIRECTED to enter judgment accordingly
and to close this case.
IT IS SO ORDERED.

DATED: May 28, 2020

s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10152169. Public record. Not legal advice.