# RUIZ RUBIO v. CORREIA

> District Court, D. New Jersey · June 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10268470

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 15, 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/10268470

## How later opinions describe it (automated extraction)

- finding that Section 2241 did not apply because the Petitioner challenged a decision “relating to a simple or garden variety transfer” when the BOP refused to transfer the petitioner to another facility so that he could be closer to his family

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

____________________________________
:
CARLOS ALIRIO R.R., :
: Civil Action No. 20-6217 (JMV)
Petitioner, :
:
v. : OPINION
:
PAULO CORREIA, et al., :
:
Respondent. :
____________________________________:

VAZQUEZ, District Judge:
This matter originated with a Verified Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241. D.E. 1. Presently pending before the Court is the amended petition and
complaint filed by Petitioner Carlos Alirio R.R.,1 (“Petitioner”). D.E. 5. In addition to the
merits of the action, Respondents challenge the Court’s jurisdiction. The Court concludes that it
does have jurisdiction over this matter but denies Petitioner’s request for immediate release.
I. BACKGROUND
Petitioner is an immigration detainee being held by the Department of Homeland Security,
Immigration and Customs Enforcement (“DHS/ICE”) at the Essex County Correctional Facility
(“ECCF”) in Newark, New Jersey. The instant petition was filed in the wake of the ongoing
COVID-19 pandemic,2 that has been reported to have been contracted by both personnel and

1 Petitioner is identified herein only by his first name and the first initials of his surname in order
to address certain privacy concerns associated with § 2241 immigration cases. This manner of
identification comports with recommendations made by the Judicial Conference of the United
States’ Committee on Court Administration and Case Management.

2 COVID-19 is an abbreviation of the coronavirus disease 2019, a respiratory illness that can
detainees at ECCF. D.E. 18.
Petitioner has been in ICE custody since on or about February 25, 2020. D.E. 1-2 at 9.
Petitioner is subject to discretionary detention under 8 U.S.C. § 1226(a). D.E. 5 at ¶ 48. On
February 25, 2020, Petitioner was served with a “Notice to Appear” charging him as an alien

present in the United States who has not been admitted or paroled. D.E. 8-6 at 2-3. Petitioner’s
criminal history is comprised solely of a domestic violence-related assault charge for which he
was arrested on February 24, 2020, by the North Bergen Police Department. D.E. 1-2 at 4-5, 8-7
at 2. This charge is currently pending. D.E. 1-2 at 9. On March 12, 2020, Petitioner’s request
for bond-redetermination was denied by an immigration judge (“IJ”) on the grounds that he poses
a danger and is a flight risk. D.E. 8-9 at 1. On April 24, 2020, Petitioner’s request for
humanitarian release was denied by ICE. D.E. 1-2 at 9.
On May 21, 2020, Petitioner filed the instant petition for writ of habeas corpus challenging
the conditions of his confinement pursuant to 28 U.S.C. § 2241. D.E. 1. On May 5, 2020, he
filed an “Amended Complaint.” D.E. 5.3 Petitioner asks the Court to, inter alia, order his

immediate release and to award him costs associated with attorney fees under the Equal Access to
Justice Act (“EAJA”). Id. at 19. On June 2, 2020, Respondents filed their opposition. D.E. 8.
On June 3, 2020, the Court held a telephonic hearing with the parties to hear oral arguments. D.E.

spread from person to person, that was declared a pandemic by the World Health Organization
(“W.H.O.”) on March 11, 2020. See Centers for Disease Control and Prevention Coronavirus
Disease 2019 Frequently Asked Questions, https://www.cdc.gov/coronavirus/2019-
ncov/faq.html#covid19-basics (last visited Apr. 7, 2020); see also William Wan, WHO declares a
pandemic of coronavirus disease covid-19, Washington Post,
https://www.washingtonpost.com/health/2020/03/11/who-declares-pandemic-coronavirus-
disease-covid-19/ (last visited Apr. 7, 2020).

3 As Respondents point out, the only apparent difference between the petition and the amended
petition is the addition of the “verification of complaint” in the amended petition.
2
10.
A. COVID-19
The COVID-19 pandemic is at the heart of this case. Judge John E. Jones III, in a
thoughtful opinion, described the situation as follows:

In a matter of weeks, the novel coronavirus COVID-19 has
rampaged across the globe, altering the landscape of everyday
American life in ways previously unimaginable. Large portions of
our economy have come to a standstill. Children have been forced
to attend school remotely. Workers deemed ‘non-essential’ to our
national infrastructure have been told to stay home. Indeed, we
now live our lives by terms we had never heard of a month ago—
we are “social distancing” and “flattening the curve” to combat a
global pandemic that has, as of the date of this writing, infected
719,700 people worldwide and killed more than 33,673. Each day
these statistics move exponentially higher.

Thakker v. Doll, Civ. Docket No. 20-cv-480, --- F. Supp. 3d ---, 2020 WL 1671563, *2 (M.D. Pa.
Mar. 31, 2020) (footnotes omitted). Judge Jones accurately pointed to the swift growth of cases.
Since his opinion dated March 31, 2020, the number of worldwide cases and deaths has risen from
719,700 and 33,673 to 7,145,539 and 408,025.4
New Jersey has been particularly hard hit, with the northern part of the state bearing the
initial brunt. As of June 9, 2020, New Jersey had 164,796 cases and 12,303 deaths. COVID-19
Information Hub, STATE OF NEW JERSEY, https://covid19.nj.gov/ (last visited June 10, 2020).
The total number of cases and deaths for Bergen County, Essex County, and Hudson County,
respectively, were 18,573/1,628, 18,151/1,722, and 18,607/1,235 deaths. Id. New Jersey has
taken numerous steps, such as the Governor’s initial stay-at-home order issued on March 21, 2020,
to combat the virus and subsequent decision to extend the public health emergency declaration for

4 Coronavirus Disease (COVID-19) Pandemic, WORLD HEALTH ORGANIZATION,
https://www.who.int/emergencies/diseases/novel-coronavirus-2019 (last visited June 10, 2020).
3
an additional thirty days.5 In addition, New Jersey has closed schools, beaches, state parks, and
county parks.6 New Jersey has since relaxed some of its initial restrictions.7
COVID-19 is a type of highly contagious novel coronavirus that is thought to be “spreading
easily and sustainably between people.” How Coronavirus Spreads, CENTERS FOR DISEASE

CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-
ncov/prepare/transmission.html (“How Coronavirus Spreads”) (last visited May 14, 2020). The
National Institutes of Health reports that the virus “is stable for several hours to days in aerosols
and on surfaces[.]”8 COVID-19 is “spread mainly from person-to-person.” Id. This person-to-
person spread can occur (1) between persons who are in close contact, meaning within six feet,
and (2) by respiratory droplets when an infected person sneezes, coughs, or talks. Id. The virus
can also be spread by infected persons who are not showing symptoms. Id.
Symptoms of COVID-19 can be mild. However, the effects of COVID-19 can be
drastically more severe in older individuals or those with certain medical conditions, including
persons with asthma, lung disease, heart disease, diabetes, chronic kidney disease, liver disease or

5 Murphy extends N.J. coronavirus public-health emergency for 30 days. State of emergency
remains in effect. N.J.com, https://www.nj.com/coronavirus/2020/05/murphy-extends-nj-
coronavirus-public-health-emergency-for-30-days-state-of-emergency-remains-in-effect.html
(last visited May 12, 2020).

6 New Jersey closes state parks, state forests and county parks as more than 200 new COVID-19
deaths reported, 6abc, https://6abc.com/covid19-cases-us-coronavirus-symptoms/6083512/ (last
visited April 7, 2020).

7 Megan Roos, New Jersey Relaxes Coronavirus Restrictions, Allowing Nonessential Retailers
to Open Next Week, Newsweek, https://www.newsweek.com/new-jersey-relaxes-coronavirus-
restrictions-allowing-nonessential-retailers-open-next-week-1503828 (last visited June 10,
2020).

8 New Coronavirus Stable for Hours on Surfaces, NATIONAL INSTITUTE OF HEALTH,
https://www.nih.gov/news-events/news-releases/new-coronavirus-stable-hours-surfaces (last
visited April 8, 2020)
4
those who are immunocompromised.9 Besides death, COVID-19 can cause serious, potentially
permanent, damage to lung tissue, and can require extensive use of a ventilator. Early evidence
suggests that the virus “can damage lung tissue causing a 20 to 30 percent decrease in lung
function[.]” D.E. 1 at ¶ 29 (citation omitted). In addition, complications from the virus can

manifest rapidly. Id. (citation omitted). There is currently no vaccine for COVID-19, nor are
there known, clinically-tested therapeutic treatments. Id. at ¶ 30. To combat the virus, health
officials have emphasized education, social distancing (i.e. staying at least 6 feet apart), and
improved hygiene. Id. (citation omitted).
B. Petitioner’s Condition
Petitioner, who is thirty-seven years old, states that he is obese, has “borderline diabetes,
body swelling and depressive disorder” as well as a history of infections and scarring in his
abdominal area after an appendix removal. D.E. 5 at ¶¶ 14, 37. He also submits that he has
experienced shortness of breath, although he does not provide any information about when this
occurred. Id. at ¶ 36. On May 14, 2020, Petitioner underwent a rapid antibody screening and

the result indicated that he test positive for IgG. D.E. 6 at 1. According to ECCF’s medical
director, Lionel Anicette, M.D., present IgG antibodies means that an individual may have
developed immunity to COVID-19 after exposure. D.E. 6-1 at ¶ 16. ECCF only quarantines
individuals with such test results if they are symptomatic, otherwise they are housed in general
population. Id.

9 People Who Are at Higher Risk of Severe Illness, CENTERS FOR DISEASE CONTROL AND
PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-
higher-risk.html (last accessed April 8, 2020).

5
C. ECCF Conditions
In response to the pandemic, ICE has taken affirmative steps to lessen the risk of exposure.
ICE Guidance on COVID-19, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
https://www.ice.gov/coronavirus (last visited on June 5, 2020). For example, ICE temporarily

suspended all social visitation at detention facilities. Id. ICE also released approximately 160
individuals who were over the age of 60 or pregnant. Id. ICE further instituted screening
guidance for new detainees and indicates that it is testing detainees for COVID-19 as per Center
for Disease Control (“CDC”) guidance. Id. Further, ICE provided a list of health conditions that
detention facilities should consider in favor of release. D.E. 8-3 at 1-2.
Respondents submitted a declaration from Alfaro Ortiz, the director of ECCF. D.E. 8-5.
Ortiz’s declaration dated, June 1, 2020, provides that as of May 31, 2020, eight ICE detainees had
tested positive for COVID-19. Id. at ¶ 44. Additionally, seventeen county inmates housed in
Delaney Hall, seventeen of which are no longer in custody, tested positive,10 as have eighty-eight
members of the correctional staff, seventy-seven of whom have been cleared to resume work at

the facility. Id. All staff members who were in proximity of those who tested positive, were sent
home to self-quarantine for a fourteen-day period or sent to the hospital for testing. Id. Currently
there are a total of 48 inmates and detainees in quarantine, in which they remain for a fourteen-
day period. Id. at ¶ 31. ECCF places its inmates and detainees in quarantine for a numbers of
reasons including: having close contact with an officer or staff member who is reported positive,
close contact with a detainee or inmate who is reported positive, close contact with a detainee or
inmate who reported symptoms, showing mild COVID-19 symptoms and/or based on the results

10 County inmates are housed in Delaney Hall, a separate building across the street from where
immigration detainees are housed. D.E. 16-5 at ¶ 31.
6
of ECCF’s rapid antibody screening test. Id.
In his declaration, Warden Ortiz details the efforts of ECCF to deal with the virus. A
major component has been keeping the population well below capacity in order to ensure adequate
space to practice social distancing. He reports that, among other things, ECCF is currently at

approximately 67 percent of its maximum capacity, and the ICE detention areas that are normally
configured to house 60 detainees per pod, are now reduced to a maximum of 48 detainees. D.E.
8-5 at ¶¶ 4-5. Moreover, the pods allow for all detainees to sit at least six feet apart. Id. at ¶ 6.
Inmates recreation periods have been modified to allow for fewer inmates to have recreation at the
same time, thereby facilitating social distancing. Id. at ¶ 20. Social visits were suspended on
March 22, 2020, and attorney visits can now be arranged in a dedicated room within the visitor’s
lobby wired to support video conferencing between the detainee and his attorney. Id. at ¶ 20.
Health care at the facility is administered by CFG Health Systems and an on-site physician
director (who is available twenty-four hours), as well as several registered nurses (“RN”), licensed
practical nurses (“LPN”), nurse practitioners and physician assistants. Id. at ¶ 12. There is

always a nurse practitioner in the facility twenty-four hours a day, and a physician at the facility
sixteen hours a day. Id. at 13. A physician is on call on a 24-hour basis for emergency needs.
(Id.) The medical department has also established a new protocol for handling inmates/detainees
who may suffer from health conditions that would classify them as being at a high risk of suffering
severe complication from COVID-19, by housing them separately. Id. at ¶ 33. ECCF requires
that all detainees and inmates undergo medical screening including temperature readings before
admission in the facility. Id. at ¶ 11.
If a detainee complains of COVID-19 symptoms, he is immediately evaluated and provided
a surgical mask if he presents with symptoms. Id. at ¶ 22. Moderate to severely symptomatic
7
detainees are immediately taken to University Hospital for medical evaluation or COVID-19
testing. D.E. 8-5 at ¶ 30. Those who test positive, but who do not require hospitalization, are
quarantined in their own cell in a unit that is exclusively being used for inmates/detainees with
positive COVID-19 results. Id. Asymptomatic detainees who have had a known exposure to

COVID-19, are “co-horted” with other similarly situated detainees, for fourteen days. Id. at ¶ 33.
ECCF does administer COVID-19 tests to its entire population, but rather focuses on
individuals with COVID-19 symptoms. D.E. 8-5 at ¶ 45. ECCF utilizes a supplementary
screening tool to test for COVID-19 antibodies. This screening tool differs from laboratory
testing for COVID-19, as the patient is examined through a blood test to minimize risk to
healthcare providers. Id.
ECCF also educates detainees as to the “importance of hand washing and best practices to
prevent the spread of COVID-19.” Id. at ¶ 19. As of May 15, 2020, ECCF has a sixteen-month
supply of soap. Id. at ¶ 25. Detainees have unlimited access to free bars of soap although they
are not provided hand sanitizer. Id. at ¶ 24. Additional cleaning staff have been hired in order

to increase the frequency of cleaning each day. Id. at ¶ 19. ECCF was designed with air handlers
and a purge system in every housing unit that allows for fresh air to be circulated within the facility
every four hours. Id. at ¶ 17. As of May 15, 2020, ECCF had, among other things, a supply of
165 gallons of alcohol-based sanitizer, 3,950 Tyvek suits, 3,900 N95 masks and 43,700 surgical
masks which correctional officers use when working with high-risk detainees. (Id. at ¶ 25.)
II. LEGAL STANDARD
The standard for granting a temporary restraining order is the same as that for a preliminary
injunction. Injunctions and restraining orders are governed by Federal Rule of Civil Procedure
65 and Local Civil Rule 65.1. Injunctive relief may only be granted when a party demonstrates
8
that he has a reasonable probability of success on the merits, he will suffer immediate and
irreparable harm if the injunction does not issue, the grant of preliminary relief will not result in
greater harm to the nonmoving party, and the injunctive relief is in the public interest. New Jersey
Retail Merchants Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 385-86 (3d Cir. 2012) (citing Crissman

v. Dower Down Entm’t Inc., 239 F. 3d 357, 364 (3d Cir. 2001).
However, before conducting the injunctive relief analysis, the Court must determine
whether Section 2241 permits Petitioner to seek the relief requested here. Respondents submit
that the Court lacks jurisdiction to decide the matter pursuant to Section 2241. D.E. 8 at 17-20
This Court, and several other district judges, have previously determined that Section 2241
is the appropriate vehicle for the injunctive relief sought. See, e.g., Rafael L.O. v. Tsoukaris, Civ.
Action No. 20-3481, 2020 WL 1808843 (D.N.J. Apr. 9, 2020). At the time, Respondents did not
argue against this analysis, instead asserting that petitioners lacked standing. Respondents,
however, have now challenged the Court’s jurisdiction under Section 2241.11 For the reasons that

11 In a thorough opinion, Judge Bumb recently determined that Section 2241 does not permit
federal inmate habeas petitioners to challenge their conditions of confinement. Wragg v. Ortiz,
Civ. -F. Supp. 3d -, No. 20-5496, 2020 WL 2745247 (D.N.J. May 27, 2020). Judge Bumb
addressed a putative class action filed by federal prisoners, rather than a civil immigration detainee
like Petitioner. In her opinion, Judge Bumb noted that respondents distinguished federal inmates
from civil immigration detainees vis-à-vis a Section 2241 analysis. Judge Bumb observed the
following:
Respondents concede, as they must, that some district courts have
found habeas jurisdiction based on civil immigration detainees’ risk
of contracting COVID-19 in detention facilities. Not only are those
cases not controlling, Respondents point out, but they are not
persuasive because civil immigration detainees do not have the
same statutory or regulatory avenues for relief as prisoners who can
seek home confinement through the CARES Act or make a
compassionate-release request to the BOP and a motion to the
sentencing court seeking compassionate relief under 18 U.S.C. §
3582(c)(1)(A). More importantly, Respondents distinguish the
constitutional claims of civil immigration detainees from those of
9
follow, the Court acknowledges that it is not clear whether Petitioner can maintain his action under
Section 2241, as a civil rights action pursuant to Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971),12 or both. However, it is equally clear to the Court that Petitioner will, at a
minimum, be able to proceed under either Section 2241 or Bivens.

As to the Court’s authority to grant release on a writ of habeas corpus, the Third Circuit’s
decision in Lucas v. Hadden, 790 F.2d 365 (3d Cir. 1986) appears to acknowledge such authority.
Lucas concerned a state prisoner’s petition pursuant to 28 U.S.C. § 2254 rather than a civil
immigration detainee matter. Id. at 365-66. The court in Lucas determined that the
“extraordinary circumstances” standard controlled in determining whether “bail may be granted to
a habeas petitioner prior to a ruling on the merits of the petition.” Id. at 367. As an example of
such circumstances, the Lucas court pointed to Johnston v. Marsh, 227 F.2d 528 (3d Cir. 1955),
in which the district judge had ordered a state inmate released to enter a hospital because the inmate
was extremely ill. Id. at 366-67. Yet, the court in Lucas court continued, it was not suggesting
that a petitioner’s poor health would be the only situation that would meet the extraordinary

prisoners because they fall under the Fifth Amendment, which
provides them “more considerate treatment than convicted
prisoners.” (Gov't Brief, ECF No. 28-1 at 54) (citing Jeferson V.G.
v. Decker, No. 20-3644, 2020 U.S. Dist. LEXIS 65905, at *15 n.5
(D.N.J. Apr. 15, 2020) (citing Fuentes v. Wagner, 206 F.3d 335, 344
(3d Cir. 2000))). Respondents suggest that different interests are at
stake when considering whether to release a civil immigration
detainee or a criminal defendant who is serving a sentence.

Wragg, 2020 WL 2745247 *16 (emphasis added). Respondents in Wragg were represented by
the same office that is representing Respondents in this matter.

12 “Bivens is the short-hand name given to causes of action against federal officials for alleged
constitutional violations.” Bistrian v. Levi, 912 F. 3d 79, 88 (3d Cir. 2018).
10
circumstances standard. Id. at 367.13
Respondents, however, point to a different line of Third Circuit cases that limit the reach
of Section 2241, albeit in the federal inmate context. In Woodall v. Fed. Bureau of Prisons, 432
F. 3d 235 (3d Cir. 2005), the petitioner challenged Bureau of Prison (“BOP”) regulations. The

sentencing judge had recommended to the BOP that the petitioner serve the last six months of his
sentence in a halfway house (a type of “Community Correction Center” or “CCC”), but the
regulations prohibited such an early release. Id. at 237-388, 240. Ultimately, the Third Circuit
found the regulations improper in light of the relevant statutes. Id. at 244-50.
Before reaching the substantive question, the Woodall court first addressed whether the
petitioner’s claim was cognizable under Section 2241. Id. at 241. The court analyzed the two
habeas statutes available to federal prisoners: Section 2241 and 28 U.S.C. § 2255; the former
addressed “execution” of a sentence while the latter concerned the validity of a conviction or
sentence. Id. (citing Coady v. Vaughn, 251 F. 3d 480, 485 (3d Cir. 2001).14 The Circuit
acknowledged that the “precise meaning of ‘execution of a sentence’ is hazy.” Id. at 242. Yet,

after analyzing cases from other circuits, the Woodall court settled on the plain meaning of

13 Like injunctive relief in general, granting bail to a habeas petitioner is an extraordinary remedy.
See Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (indicating that a court may only
grant release pending a disposition of federal habeas claims when the petitioner has raised
“substantial constitutional claims upon which he has a high probability of success, and ... when
extraordinary or exceptional circumstances exist which make the grant of bail necessary to make
the habeas remedy effective”) (citation omitted)); see also In re Souels, 688 F. App’x 134, 135-36
(3d Cir. 2017).

14 The respondent in Woodall argued that conditions of confinement fell outside the reach of
habeas, citing to, among other decisions, Nelson v. Campbell, 541 U.S. 637 (2004). Id. at 242
n.3. The Woodall court disagreed, finding that Nelson addressed the reach of 42 U.S.C. § 1983
before it invaded habeas jurisdiction. Id. (citing Nelson, 541 U.S. at 639). But, the court in
Woodall continued, Nelson did not rule that habeas relief was unavailable even if the remedy was
also permissible under Section 1983. Id.
11
execution, that is “to ‘put into effect’ or ‘carry out.’” Id. at 242-43 (quoting WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 794 (1993)). The Third Circuit then concluded that the matter
involved an execution of the petitioner’s sentence, and was therefore properly brought under
Section 2241, because a transfer from a prison to a CCC represented “more than a simple transfer”

or a “garden variety prison transfer.” Id. at 243. See also Ganim v. Fed. Bureau of Prisons, 235
F. App’x 882 (3d Cir. 2007) (finding that Section 2241 did not apply because the Petitioner
challenged a decision “relating to a simple or garden variety transfer” when the BOP refused to
transfer the petitioner to another facility so that he could be closer to his family).
In another case, McGee v. Martinez, 627 F. 3d 933, 934 (3d Cir. 2010), the Section 2241
petition concerned the Inmate Financial Responsibility Plan (“IFRP”), 28 C.F.R. §§ 545.10,
545.11. The Third Circuit framed the issue as whether the petitioner could maintain the case
under Section 2241 “or whether he must re-file it as a civil rights action under Bivens[.]” Id. The
court in McGee observed that when a petitioner challenges a condition of confinement, and a
favorable outcome would not alter his conviction or sentence, a civil rights action under Bivens or

42 U.S.C. § 1983 is appropriate. Id. at 936 (citing Leamer v. Fauver, 288 F. 3d 532, 542 (3d Cir.
2002)). The Third Circuit then indicated that the IFRP is designed to encourage an inmate to meet
his financial obligations imposed at sentencing. Id. at 936. As a result, the Circuit continued,
the IFRP is a means to execute a sentence. Id. The McGee court concluded that because the
petitioner’s case involved the execution of his sentence, it was properly brought under Section
2241. Id. at 936-37.
The Circuit reached the opposite conclusion in Cardona v. Bledsoe, 681 F. 3d 533 (3d Cir.
2012). In that case, the petitioner filed a Section 2241 action challenging the BOP’s decision to
place him in the Special Management Unit (“SMU”). Id. at 534. Like McGee, the Cardona court
12
once again framed the issue as whether the matter was properly brought under Section 2241 or
whether the petitioner “must instead file a civil rights action under Bivens[.]” Id. at 534; 537 n.9
(“We have held that a challenge to the conditions of an inmate’s confinement may be brought in a
civil rights action.” (citing McGee, 627 F. 3d at 936)). The court in Cardona decided that the

petitioner’s action was not appropriate under Section 2241. Id. at 538. The Third Circuit
reasoned that the petitioner had not alleged that the BOP’s action was inconsistent with a
recommendation or command in the sentencing judgment. Id. at 537. The Circuit then turned to
the petitioner’s claim that placing him in the SMU could lead to a loss of his good time credits,
which could impact the length of his confinement. Id. at 537. The Cardona court rejected this
argument because even if the petitioner won, it did not “necessarily imply” that he would serve a
shorter sentence. Id. (citing Leamer, 288 F. 3d at 543).15
The foregoing cases certainly seem to indicate – at least as to federal inmates – that an
action which is not viable under Section 2241 can nevertheless be brought as a Bivens action.
However, after these decisions, the United States Supreme Court in Ziglar v. Abassi, __ U.S. __,

137 S. Ct. 1843 (2017), addressed matters falling under Bivens and its progeny. Abassi involved
a suit by “six men of Arab or South Asian descent[,]” five of whom were Muslims, who were taken
into custody as illegal aliens following the September 11, 2001, terrorist attacks. Id. at 1852,
1853. While detained, the men were allegedly subject to harsh conditions of confinement along
with both physical and verbal abuse. Id. at 1853. The detainees brought four claims under
Bivens.16 Id. The Supreme Court found that the Bivens claims challenged conditions of

15 The Third Circuit has also ruled that a civil rights claim is not converted to a Section 2241 matter
merely because a federal inmate requests her release as a remedy. Gillette v. Territory of Virgin
Islands, 563 F. App’x 191, 195 (3d Cir. 2014)
16 The detainees also brought a claim under 42 U.S.C. § 1985(3), which was dismissed on
13
confinement and fell into two general categories: “detention policy claims” and claims
concerning the warden’s permitting guards to abuse detainees. Id. at 1858-59.
The Supreme Court traced the history of Bivens-type actions, starting with the seminal case
in which the Court permitted a damages remedy for persons injured by an unreasonable search and

seizure. Id. at 1854 (citing Bivens, 403 U.S. at 397). The Abassi Court noted that Bivens claims
had only been extended to two areas: gender discrimination by a Congressman in violation of the
Fifth Amendment Due Process Clause and failure to provide medical treatment to a prisoner in
contravention of the Eighth Amendment’s Cruel and Unusual Punishments Clause. Id. at 1854-
55 (citing Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Green, 446 U.S. 14 (1980)).
However, the Court also pointed out that it had not extended Bivens to a number of other areas,
including military matters and private prisons. Id. at 1857 (citations omitted). The Abassi Court
attributed this change in Bivens jurisprudence not only to the facts of particular cases but also to a
shift in the Supreme Court’s analysis of such matters. Id. at 1855. As the Supreme Court
recognized, it had adopted a cautious approach in extending Bivens to other constitutional

violations such that a Bivens remedy was now “disfavored.” Id. at 1855-57. As a result, the
Court in Abassi continued, it would not extend Bivens remedies “if there are ‘special factors
counseling hesitation in the absence of affirmative action by Congress.’” Id. at 1857 (emphasis
added) (quoting Carlson, 446 U.S. at 18).
As to special factors, the Abassi Court ruled that “the inquiry must concentrate on whether
the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the
costs and benefits of allowing a damages action to proceed.” Id. at 1857-58. The Supreme Court

qualified immunity grounds. Id. at 1854, 1865-69.
14
added that certain matters – such as the military, the public purse, and federal land – in which
Congress has “designed its regulatory authority in a guarded way” would counsel against an
extension of Bivens. Id. at 1858. Other times, the Court continued, a particular “feature of a
case” may caution against permitting a new Bivens action. Id. The Agassi Court added that “if

there is an alternative remedial structure present in a certain case, that alone may limit the power
of the Judiciary to infer a new Bivens cause of action.” Id.
Turning to the claims before it, the Supreme Court first addressed the detention policy
claims. Id. at 1858. The Supreme Court determined that the allegations constituted a new17
Bivens claim and were therefore subject to the special factors analysis. Id. at 1860. The Court
described the detention policy claims as a challenge to the “confinement conditions imposed on
illegal aliens pursuant to a high-level executive policy created” after the September 11 attacks.
Id. The Court in Abassi ruled that a Bivens claim was an improper manner to challenge an entity’s

17 The Abbasi Court also addressed a threshold issue, that is, whether the asserted Bivens claim
was an already recognized cause of action or an attempt to create a new Bivens action. To that
the end, the Court indicated the following:

The proper test for determining whether a case presents a
new Bivens context is as follows. If the case is different in a
meaningful way from previous Bivens cases decided by this Court,
then the context is new. Without endeavoring to create an exhaustive
list of differences that are meaningful enough to make a given
context a new one, some examples might prove instructive. A case
might differ in a meaningful way because of the rank of the officers
involved; the constitutional right at issue; the generality or
specificity of the official action; the extent of judicial guidance as to
how an officer should respond to the problem or emergency to be
confronted; the statutory or other legal mandate under which the
officer was operating; the risk of disruptive intrusion by the
Judiciary into the functioning of other branches; or the presence of
potential special factors that previous Bivens cases did not consider.

Id. at 1859-60.
15
policy. Id. (citation omitted). Relatedly, the Court continued, discovery and litigation would
veer into discussions and deliberations in formulating the policy. Id. at 1860-61. The Abassi
Court continued that the detention policy claims would also require “an inquiry into sensitive
issues of national security[,]” which weighed against a Bivens money damages claim. Id. at 1861.

The Supreme Court further noted that Congress’ inaction in the 16 years since the September 11
attacks also countenanced against finding a new cause of action. Id. at 1862.
The Abassi Court then observed that the detainees may have other avenues to pursue relief:
[W]e have left open the question whether [the detainees]
might be able to challenge their confinement conditions via a
petition for a writ of habeas corpus. See Bell v. Wolfish, 441 U.S.
520, 526, n. 6 (1979) (“[W]e leave to another day the question of the
propriety of using a writ of habeas corpus to obtain review of the
conditions of confinement”); Preiser v. Rodriguez, 411 U.S. 475,
499 (1973) (“When a prisoner is put under additional and
unconstitutional restraints during his lawful custody, it is arguable
that habeas corpus will lie to remove the restraints making custody
illegal”).

Indeed, the habeas remedy, if necessity required its use,
would have provided a faster and more direct route to relief than a
suit for money damages. A successful habeas petition would have
required officials to place respondents in less-restrictive conditions
immediately; yet this damages suit remains unresolved some 15
years later.

Id. at 1862-63 (emphasis and second alteration added). As a result, the Court stated that the
detainees had other forms of judicial relief available which meant that a Bivens damages remedy
was usually not. Id. at 1863 (citations omitted).
The Supreme Court concluded that it therefore would not extend Bivens to the detention
policy claims. Id. As to the second category – the warden permitting officers to abuse detainees
– the Court acknowledged that it may be a viable new Bivens claim but remanded the matter for a
special factors analysis in the first instance. Id. at 1863-65.
16
Critically, the Court in Abassi limited its ruling to cases in which petitioners sought money
damages. See, e.g., id. at 1854 (“The Court . . . would enforce a damages remedy[.]”), 1857 (“The
question is ‘who should decide’ whether to provide for a damages remedy, Congress or the
courts?” (citation omitted)); 1858 (“[T]he decision to recognize a damages remedy requires an

assessment of . . . . [I]f there are sound reasons to think that Congress might doubt the efficacy
or necessity of a damages remedy . . . .”); 1861 (“Allowing a damages suit in this context . . . .
These considerations also counsel against allowing a damages claim to proceed . . . . Were the
inquiry to be allowed in a private suit for damages . . . .”) The Supreme Court clearly delineated
an action for injunctive relief as opposed to one for damages. See, e.g., id. at 1858 (“It is true that
if equitable remedies prove insufficient, a damages remedy might be necessary to redress past
harm and deter future violations.”); 1861 (“These concerns are even more pronounced when the
judicial inquiry comes in the context of a claim seeking money damages rather than a claim seeking
injunctive or other equitable relief.”). To this end, even when rejecting the application of Bivens
to detention policy claims, the Abbasi Court ruled that “[t]o address those kinds of decisions,

detainees may seek injunctive relief.” Id. at 1862.
In light of the foregoing, the Court concludes that Petitioner may maintain this action under
both Section 2241 and a Bivens claim for injunctive relief. See Woodall, 432 F. 3d at 242 n. 3.
Alternately, the Court concludes that the Third Circuit will permit the action to proceed as either
a Section 2241 matter or a Bivens claim for injunctive relief. Moreover, whether the Court
reviews Petitioner’s claims under Section 2241 or Bivens, the Court must conduct the same
substantive analysis, that is, whether Petitioner has shown that he is entitled to injunctive relief
due to a violation of the Fifth Amendment’s Due Process Clause.
At the outset, the Court acknowledges that if Petitioner was a federal inmate, Third Circuit
17
precedent would preclude an action under Section 2241. Petitioner is not challenging the
“execution of his sentence”; in fact, Petitioner has not been sentenced at all because he is a civil
immigration detainee. The Third Circuit has not ruled that Section 2241 is unavailable in this
context. And the Court finds persuasive the reasoning of respondents in Wragg, which Judge

Bumb adopted:
[B]ecause civil immigration detainees do not have the same
statutory or regulatory avenues for relief as prisoners who can seek
home confinement through the CARES Act or make a
compassionate-release request to the BOP and a motion to the
sentencing court seeking compassionate relief under 18 U.S.C. §
3582(c)(1)(A). More importantly, Respondents distinguish the
constitutional claims of civil immigration detainees from those of
prisoners because they fall under the Fifth Amendment, which
provides them “more considerate treatment than convicted
prisoners.” (Gov't Brief, ECF No. 28-1 at 54) (citing Jeferson V.G.
v. Decker, No. 20-3644, 2020 U.S. Dist. LEXIS 65905, at *15 n.5
(D.N.J. Apr. 15, 2020) (citing Fuentes v. Wagner, 206 F.3d 335, 344
(3d Cir. 2000))). Respondents suggest that different interests are at
stake when considering whether to release a civil immigration
detainee or a criminal defendant who is serving a sentence.

Wragg, 2020 WL 2745247 *16 (emphasis added).
This reasoning is consistent with the Supreme Court’s “necessity” of “use” observation as
to habeas relief in Abassi. Abassi, 137 S. Ct. at 1863. The Court recognizes that the Abassi Court
did not definitively hold that habeas relief was available to immigration detainees. But at the
same time, the Supreme Court also ruled that the detainees did have other forms of relief available
to them, id., which strongly suggests that the Supreme Court would find a habeas action
cognizable, at least where necessity required it to do so. Not only has this Court found Section
2241 to be applicable in civil immigration matters, so have numerous other district judges. See
Jaime F. v. Barr, Civ. No. 19-20706, 2020 WL 2316437 *2 (D.N.J. May 11, 2020) (citing case by
way of examples).
18
The Court likewise finds that Petitioner can proceed with a Bivens action for injunctive
relief, as opposed to money damages. As noted, the Abassi Court took great pains to distinguish
between injunctive relief and damages, concluding that the detainees could have sought injunctive
relief – even as to the detention policy claims. Abassi, 137 S. Ct. at 1862. As a result, Petitioner

here may also seek injunctive relief for the alleged constitutional violations. Because Abassi did
not prohibit an action seeking injunctive relief, the Court need not decide whether Petitioner asserts
a new Bivens cause of action for money damages. Nevertheless, as to the special factors analysis,
the Court notes that the Supreme Court’s decision Carlson v. Green, 446 U.S. 14 (1980),
concerning the Eighth Amendment is similar to the inquiry that the Court would have to conduct
here. Moreover, this Court has not ruled that ICE’s overall, nationwide policy as to housing
detainees is unconstitutional; instead, the Court has focused on particular facilities and how each
has coped with the pandemic. The Court has also considered the individual circumstances of each
petitioner.
As noted, the Court is not aware of binding precedent that Section 2241 is not applicable

to a civil immigration detainee alleging unconstitutional conditions of confinement. The Court
predicts that the Third Circuit will find, at minimum, that Petitioner can proceed under either
Section 2241 or Bivens (for injunctive relief). The Court recognizes that if the Circuit determines
that Petitioner is foreclosed from seeking Section 2241 relief, it will be a major factor in
determining that a Bivens action is viable. See Bistrian, 912 F. 3d at 90 (3d Cir. 2018) (noting
that in determining whether a new Bivens action should be recognized, two factors are “particularly
weighty: the existence of an alternative remedial structure and separation-of-powers principles”
(citation omitted)). At the same time, the Court acknowledges that if a Bivens action is not
available to Petitioner, then it may very well lead to the “necessity” of permitting a Section 2241
19
claim announced by the Abassi Court. Abassi, 137 S. Ct. at 1863.
III. DISCUSSION
Although the Court has jurisdiction, the Court finds that Petitioner has not established a
reasonable likelihood of success on the merits. Before delving into the relevant analysis in this

case, the Court notes the following. The Court is well-aware of the seriousness of the COVID-
19 pandemic, and the Court likewise recognizes that county jails and detention facilities were not
designed with pandemics in mind. During the pandemic, the Court has received requests for
habeas relief from civil immigration detainees that fall into three general categories: (1) detainees
who do not fall into a particularly vulnerable category; (2) detainees who fall into a particularly
vulnerable category (based on age or underlying medical/physical conditions); and (3) detainees
who have tested positive for COVID-19. As to the first category, the Court has denied relief
without prejudice. At the same time, the Court recognizes that merely because a person does not
fall into a vulnerable category does not mean that he or she will not experience severe symptoms
if he or she contracts the virus. The Court has denied those petitions without prejudice because

information concerning COVID-19 is subject to change, and as additional information becomes
available, the Court could reach a different conclusion as to those detainees who currently are not
considered unusually vulnerable. As to the second category, the Court has ordered release
provided that the legitimate interests of ICE (in particular, flight risk and dangerousness) can be
accommodated by the conditions of release. As to the third category – detainees who have the
virus – the Court has found that the analysis changes. Before a detainee contracts the virus, the
public has an interest in preventing further positive cases. In addition to the health and welfare
of the detainee, the public also has an interest in seeing that scarce medical resources are conserved.
Yet, once a detainee tests positive, the public also has an interest in not introducing additional
20
cases into the general public. Once a detainee tests positive, in the Court’s view, the critical
question is whether the detainee is receiving constitutionally adequate care. As a result, once a
detainee tests positive, the Court does not order release but instead remains available on short
notice to address any issues that may arise as to adequacy of medical care. To this end, the Court

has inquired of facilities as to whether detainees can seek medical attention twenty-four hours a
day (in case symptoms worsen) and, if necessary, how long it will take to transport a detainee to a
hospital or medical center.
Petitioner is a civil detainee as opposed to a criminal prisoner who has been convicted and
sentenced. Therefore his conditions of confinement claim will be analyzed under the Due Process
Clause of the Fifth Amendment, as opposed to the Eighth Amendment. Bell v. Wolfish, 441 U.S.
520, 535-36 (1979). Civil immigration detainees are entitled to the same due process protections
as pretrial detainees when the conditions of confinement fall below constitutional minimums.18
E.D. v. Sharkey, 928 F.3d 299, 306-07 (3d Cir. 2019).

18 Petitioner also raises a “deliberate indifference” claim. D.E. 5 at ¶¶ 65-69. Because the current
pandemic represents unchartered territory in recent jurisprudence, the parties are understandably
drawing from analogous situations. One of those situations is cruel and unusual punishment
under the Eighth Amendment, which applies a deliberate indifference standard to medical
treatment (or lack thereof). See, e.g., Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581-
82 (3d Cir. 2003); Parkelll v. Morgan, 682 F. App’x 155, 159-60 (3d Cir. 2017); King v. Cnty. Of
Gloucester, 302 F. App’x 92, 96 (3d Cir. 2008). “To act with deliberate indifference to serious
medical needs, is to recklessly disregard a substantial risk of serious harm.” Harvey, 263 F. App’x
at 191 (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) and Farmer v. Brennan, 511 U.S.
825, 836 (1994)).

However, the Court finds that the Eighth Amendment is not applicable because Petitioners are not
convicted criminal inmates but civil immigration detainees. As noted, the Court evaluates the
Petitioners’ claims under the Due Process Clause of the Fifth Amendment, which prohibits
“punishment” of a civil detainee. See Natale, 318 F.3d at 581; see also Hubbard v. Taylor, 399
F.3d 150, 157-60 (3d Cir. 2005). As a result, the Court finds that the deliberate indifference
standard merely sets the floor, rather than the ceiling, of constitutionally required medical care in
this matter.

21
The Third Circuit has articulated the following relevant standards:
To determine whether challenged conditions of confinement amount
to punishment, this Court determines whether a condition of
confinement is reasonably related to a legitimate governmental
objective; if it is not, we may infer “that the purpose of the
governmental action is punishment that may not be constitutionally
inflicted upon detainees qua detainees.”

E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 232
(3d Cir. 2008)). As a result, the Court must ascertain whether the confinement conditions serve
a legitimate purpose and whether the conditions are rationally related to that legitimate purpose.
Hubbard 538 F.3d at 232.
A condition or purported deprivation amounts to punishment if the “disability is imposed
for the purpose of punishment”; no “alternative purpose to which may rationally be connected is
assignable for it” or is “excessive in relation to the alternative purpose assigned [to it].” Bell, 441
U.S. at 538 (internal citation omitted). The “inquiry into whether given conditions constitute
punishment must consider the totality of circumstances within an institution.” Hubbard, 399 F.3d
at 160 (internal quotation marks and citations omitted).
District Courts have reached different conclusions when conducting this inquiry in the
context of the current pandemic. In Dawson v. Asher, Case No. C20-0409, 2020 WL 1304557
(W.D. Wash. Mar. 19, 2020), Judge James L. Robart found that the immigration detainees did not
face improper punishment. Id. at *2. Judge Robart explained that the petitioner’s detention was
reasonably related to a legitimate governmental objective because there was no evidence that the
respondents intended to punish the petitioners, respondents had a legitimate governmental
objective in preventing detained aliens from absconding and ensuring their appearance at removal
22
proceedings, and the petitioners’ confinement did not appear excessive in relation to the legitimate
objective. Id.
Judge Jones in Thakker reached a different conclusion. Thakker, 2020 WL 1671563, *8.
Judge Jones noted that an express intent to punish was not necessary and then found that the

detention in question did not bear a rational relationship to a legitimate government objective. Id.
Judge Jones reasoned that housing immigration detainees in close proximity and in unsanitary
conditions, in light of the pandemic, did not meet a legitimate governmental objective. Id. Judge
Jones indicated that preventing aliens from absconding would constitute a legitimate governmental
aim but this objective was deeply weakened in light of COVID-19, particularly when ICE had
many other options to monitor civil detainees. Id.
The Court agrees with the Thakker court that COVID-19 alters the analysis. The Court
also recognizes that jails are not designed with pandemics in mind. However, courts that have
found that the conditions did not bear a rational relationship to a legitimate governmental interest
in light of the pandemic, have also indicated that the individual detainee’s underlying health

condition weighed heavily in its analysis. See, e.g., Rafael L.O. v. Tsoukaris, 2020 WL 1808843,
*8; Thakker, 2020 WL 1671563, *4, 6. The Court also agrees that a petitioner’s individual
circumstances (that is, his or her medical condition) are critical to the analysis.
Petitioner submits that being confined in a facility such as ECCF coupled with his pre-
existing medical conditions and age places him at high risk of suffering severe complications or
even death should he contract COVID-19. D.E. 5 at ¶ 7. He further submits that his underlying
state criminal matter has been unduly prolonged due to courthouse closures in the wake of the
ongoing pandemic, resulting in his delayed detention at ECCF. Id. at ¶¶ 46-49. Respondents
argue, among other things, that Petitioner has submitted minimal evidence to support his claim
23
and failed to demonstrate a basis for relief. D.E. 8 at 26-27. As Respondents point out, Petitioner
does not claim to live with any of the COVID-19 risk factors identified by the CDC. See
Coronavirus Disease 2019: Groups at Higher Risk for Severe Illness.
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html.

(last visited June 11, 2020).
Petitioner submits that he is obese, has gastroenteritis, borderline diabetes,19 and mental
health issues. In support of his health condition related claims, Petitioner has submitted one page
of ECCF medical records as well as a photograph of stitches in his abdominal area. D.E. 1-2 at
2-3. During oral argument, Petitioner submitted for the first time that he takes
immunosuppressive medications which can place him at higher risk of contracting COVID-19.
The Court will sustain the Respondents’ objection to the introduction of this new information.
Petitioner cannot amend his petition through briefing or argument. See Commonwealth of Pa. ex
rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic that the
complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (quoting Car

Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984)). Petitioner has not alleged
that he is living with any of the health conditions listed as risk factors by the CDC. Petitioner has
provided that he is obese, but not severely obese. The CDC’s COVID-19 risk factors lists severe
obesity, which is qualified as a BMI greater than or equal to 40. (emphasis added). See
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html

19 Borderline diabetes is also known as prediabetes. It is a condition that develops before a person
is diagnosed with type 2 diabetes. A prediabetic individual’s blood sugar levels are higher than
normal, but they are not high enough to be considered a sign of diabetes. See
https://www.cdc.gov/diabetes/library/features/truth-about-prediabetes.html (last visited June 12,
2020).
24
(last visited June 8, 2020). Finally, Petitioner’s age, thirty-seven, does not place him in the at-
risk age range identified by both ICE and CDC. See D.E. 8-3 at 1.
In sum, the Court credits Petitioner's complaints as to ECCF. While ECCF has
implemented steps that have worked to lessens the frequency and number of infections, its efforts
have not been completely successful. But Petitioner’s alleged medical conditions do not fall
within the CDC guidelines for placing him in an unusually vulnerable category. As a result, the
Court finds that Petitioner’s detention serves a legitimate governmental interest. Therefore, the
Court does not find that Petitioner is likely to succeed on his claims. Petitioner’s request for
immediate release is denied.
IV. CONCLUSION
For the foregoing reasons, the Court finds that it has jurisdiction over this matter, but the
Court denies the Petition. Because Petitioner’s habeas petition is denied, he is not entitled to fees
and attorney costs pursuant to EAJA. An appropriate Order accompanies this Opinion.
Dated: 6/16/2020
VO O. VN K
JOHN MICHAEL VAZQU UY
United States District Judge

25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268470. Public record. Not legal advice.