Baghdad v. Barr

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RABII BAGHDAD, :

Petitioner :

: No. 1:21-cv-293

v. :

: (Judge Rambo)

CLAIR DOLL, :

Respondent :

MEMORANDUM

On February 17, 20201, pro se Petitioner Rabii Baghdad (“Petitioner”), who

is currently confined at the York County Prison in York, Pennsylvania (“YCP”),

initiated the above-captioned action pursuant to 28 U.S.C. § 2241, challenging the

constitutionality of his detention by the United States Department of Homeland

Security (“DHS”), Immigration and Customs Enforcement (“ICE”). (Doc. No. 1.)

Petitioner asserts that he is entitled to relief because his detention has exceeded

constitutional limits and because of the COVID-19 pandemic. (Id.) Following an

Order to show cause (Doc. No. 7), Respondent filed a response, contending that

Petitioner’s detention is lawful (Doc. No. 10). Accordingly, Petitioner’s § 2241

petition is ripe for disposition.

I. BACKGROUND

A. Facts Regarding Petitioner

Petitioner is a native and citizen of Morocco who was admitted to the United

States at New York City as a lawful permanent resident on February 3, 2001. (Doc.

No. 10-1 at 3, 7.) On August 21, 2019, he was convicted of retail theft in the Court

of Common Pleas for Bucks County, Pennsylvania. (Id. at 3.) He was sentenced to

twenty-three (23) months’ imprisonment in the Bucks County Prison. (Id. at 6.)

On August 18, 2020, the Bensalem Township Police Department arrested

Petitioner on a bench warrant and a detainer was lodged with the Bucks County

Prison. (Id. at 8.) That same day, ICE served Petitioner with a Notice to Appear,

charging him with being removable, pursuant to section 237(a)(2)(A)(iii) of the

Immigration and Nationality Act (“INA”) based on his conviction of an aggravated

felony “as defined in section 101(a)(43)(G) of the Act, a law relating to a theft

offense (including receipt of stolen property) or burglary offense for which the term

of imprisonment at least 1 year was imposed.” (Id. at 3-4.) Petitioner filed a motion

to terminate proceedings, asserting that his conviction should not be classified as a

aggravated felony. (Id. at 11-14.) On November 17, 2020, an immigration judge

sustained the charge of removal and denied the motion to terminate. (Id.)

On December 9, 2020, an immigration judge ordered Petitioner removed to

Morocco. (Id. at 15-21.) On January 5, 2021, Petitioner appeared the removal order

to the Board of Immigration Appeals (“BIA”). (Id. at 25-28.) Petitioner requested

an extension of time to submit his brief to the BIA. (Id. at 30.) Both parties’ briefs

were due on or before March 18, 2021. (Id.) Respondent represents that Petitioner’s

appeal is still pending before the BIA. (Id.)

On February 4, 2021, DHS reviewed Petitioner’s custody status pursuant to

Fraihat v. ICE, --- F. Supp. 3d ---, 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020).

(Doc. No. 10-1 at 33-35.) DHS noted that Petitioner’s hepatitis C placed him at

heightened risk of contracting COVID-19, but decided that he should remain

detained. (Id. at 33.) DHS stated that Petitioner’s “medical conditions remain stable

and are being properly treated and managed.” (Id. at 34.) DHS noted further that

YCP had implemented “extensive measure to adequately detect and prevent the

spread of COVID-19 within the facility and to protect the health and safety of YCP

detainees.” (Id.) Finally, DHS noted that Plaintiff “present[ed] a potential threat to

public safety and/or property” because of his convictions for retail theft as well as

two prior convictions for driving under the influence. (Id.) Petitioner requested

review of the custody determination by an immigration judge. (Id. at 35.)

Petitioner is 44 years old and has been diagnosed with asthma, anxiety,

depression, and hepatitis C. (Id. at 37, 40, 44, 46.) He tested positive for COVID-

19 antibodies upon his intake at YCP on August 18, 2020. (Id. at 36, 95.) On

January 9, 2021, because he had had close contact with another inmate with a

confirmed positive test, Petitioner began daily COVID-19 screening for symptoms.

(Id. at 47-94.) These screenings continued until March 2, 2021, and he remained

asymptomatic throughout. (Id.)

B. Facts Regarding YCP’s Response to COVID-19

Since the onset of COVID-19, “ICE epidemiologists have been tracking the

outbreak, regularly updating infection prevention and control protocols, and issuing

guidance to field staff on screening and management of potential exposure among

detainees.” (Resp. Ex. 11, Ritchey Decl. ¶ 8.) YCP is following guidance set forth

by the Centers for Disease Control (“CDC”) “to safeguard those in its custody and

care.” (Id. ¶ 9.) Moreover, on April 10, 2020, “ICE ERO released its COVID-19

Pandemic Response Requirements (PRR), a guidance document that builds upon

previously issued guidance and sets forth specific mandatory requirements expected

to be adopted by all detention facilities housing ICE detainees.” (Id. ¶ 10.) The PRR

also sets forth “best practices for such facilities.” (Id.)

ICE has reviewed its detained population of at risk inmates to “determine if

detention remains appropriate, considering the detainee’s health, public safety, and

mandatory detention requirements, and adjusted custody conditions, when

appropriate, to protect the health, safety, and well-being of its detainees.” (Id. ¶ 27.)

YCP “has the capacity to house 2,245 inmates and has historically often operated

near capacity.” (Id. ¶ 7.) As of March 11, 2021, however, “there [were] only 1,2020

combined male and female inmates and detainees housed at the facility.” (Id.)

YCP screens all detainees for COVID-19. (Id. ¶¶ 11-12.) During intake

medical screenings, detainees are assessed for fever and symptoms of respiratory

illness and asked to confirm whether they have had close contact with a person with

a confirmed COVID-19 infection or “traveled from or through area(s) with sustained

community transmission in the past two weeks.” (Id. ¶ 13.) “The detainee’s

responses and the results of these assessments will dictate whether to monitor or

isolate the detainee.” (Id. ¶ 14.) All intakes are screened with temperature checks,

a questionnaire, and antibody testing, with or without a nasal swab. (Id. ¶¶ 12-13.)

All staff and vendors are also screened when they enter the facility. (Id. ¶ 20.)

Automatic electronic temperature screening devices have been installed at employee

entrances. (Id.) Moreover, YCP has limited professional visits to non-contact visits

and has suspended in-person social visitation and facility tours. (Id. ¶ 21.) Detainees

may meet with their attorneys via video or telephone. (Id. ¶ 21.)

Detainees have daily access to sick call and 24/7 access to the onsite medical

staff. (Id. ¶ 18.) “After hours, there is always a provider on call to answer questions

and manage medical issues.” (Id.) Per ICE policy, YCP has designated units to be

used for routine quarantining of asymptomatic intakes and transfers. (Id. ¶ 15.)

These units accept detainees until they are at 50% capacity and then they are closed,

and the 14-day quarantine clock starts when the last detainee is admitted. (Id. ¶ 15.)

If a detainee in a unit develops symptoms during quarantine, that detainee is moved

to isolation and the 14-day period starts anew. (Id.) Symptom and temperature

checks are performed daily, and a random unit within YCP is chosen for COVID-19

screening every day. (Id.) Before a unit is opened to the general population,

everyone is screened with symptom and temperature checks. (Id.) Medical staff

also conduct roving temperature checks throughout the facility. (Id. ¶ 25.)

Detainees who test positive are isolated and treated and transported to the

hospital if their condition deteriorates. (Id. ¶¶ 14, 23.) YCP has negative pressure

single isolation rooms, as well as an old gyn and work release center, that can be

used for isolation housing. (Id. ¶ 23.) Isolated detainees are assessed twice daily.

(Id.)

Asymptomatic detainees who have been exposed to someone with COVID-

19 are placed in quarantine with restricted movement for a minimum of 14 days, but

in most cases 21 days. (Id. ¶ 16.) They are monitored daily for fever and respiratory

illness. (Id.) Those that show fever or respiratory illness are referred to a medical

provider for evaluation. (Id.) Quarantining is discontinued when the minimum 14-

day period is complete with no new cases. (Id.) Although cells and units for

administrative or disciplinary segregation may be used for quarantine and isolation,

detainees are still provided access to TV, reading materials, recreation, and

telephones to the fullest extent possible. (Id. ¶ 17.)

YCP has increased the frequency of sanitation protocols, the availability of

sanitation supplies in the housing units, and repeatedly cleans high-traffic areas

throughout the day. (Id. ¶ 19.) Soap, water, and hard surface disinfectant are

available in all housing units. (Id.) Each detainee receives a bar of soap and

immediately receives a replacement once it is gone. (Id.) Detainees have access to

670 bathroom sinks and areas for handwashing and hygiene. (Id.) There are forty-

seven (47) hand sanitizer stations present throughout YCP for staff to use. (Id.)

Alcohol-based hand sanitizer is also available for staff to use. (Id.) Hand sanitizer

is not provided to detainees for security reasons, but they do receive a travel-sized

packet of hand sanitizer to take with them upon release. (Id.) Telephones in all

common areas are cleaned after each use. (Id.) Detainees may ask for cleaning

supplies at any time. (Id.)

All staff or personnel entering YCP must wear a surgical-style mask; they are

required to wear N-95 masks if they are dealing with symptomatic detainees or those

who have tested positive for COVID and if they are conducting outside transports.

(Id. ¶ 25.) As of September 2, 2020, all staff and personnel entering YCP must wear

N-95 masks as well as safety glasses. (Id.) Employees have also been provided face

shields as alternatives to safety glasses. (Id.) On April 7-8, 2020, YCP distributed

surgical masks to all detainees and inmates, along with directions for proper use.

(Id.) YCP has also arranged to launder masks and provide a second mask to each

person in custody. (Id.) Detainees may remove their masks to eat, drink, and

shower. (Id.) Those confined to cells must wear the masks anytime they are out of

the cell. (Id.) Detainees in dormitory settings must wear their masks when not

sleeping, but mask-wearing while sleeping is encouraged. (Id.) Isolated detainees

must wear N-95 masks when they leave their unit. (Id.) Detainees are encouraged

to war their masks at all times and can receive disciplinary reports if they are

consistently non-compliant. (Id.)

YCP has test kits available, and all new intakes are tested for COVID-19

antibodies. (Id. ¶ 12.) If they test negative for COVID-19 antibodies they are given

nasal swab tests. (Id.) YCP also routinely performs COVID-19 tests in the absence

of clinical suspicion. (Id.) YCP offers voluntary nasal swab testing to staff

members. (Id. ¶ 20.) Staff members also have access to a commercial lab center

open to the public. (Id.) YCP has administered approximately 7,095 nasal swab

tests and 3,237 antibody tests from March 2020 until the morning of March 19, 2021.

(Resp. Exs. 12, 13.) 1,846 rapid tests have been performed. (Resp. Ex. 14.)

As of March 11, 2021, there have been 269 confirmed cases of COVID-19

among ICE detainees since March of 2020. (Ritchey Decl. ¶ 24.) Six (6) of those

tested positive prior to entering ICE custody at YCP. (Id.) As of the morning of

March 11, 2021, there were five (5) ICE detainees who had tested positive and were

housed in isolation under medical observation. (Id.) There have been 691 confirmed

cases among county inmates; 687 of those have been cleared and are no longer

subject to isolation or quarantine. (Id.) There have been no deaths at YCP. (Id.)

C. Petitioner’s § 2241 Petition

Petitioner filed the instant § 2241 petition on February 17, 2021. (Doc. No.

1.) He seeks immediate release, arguing that he has been subjected to prolonged

mandatory detention and that he suffers from high blood pressure, depression,

anxiety, and “mental liver Hep-C.” (Id. at 3, 5-6.) He maintains that he is “especially

vulnerable to serious illness” and that it is “unconstitutional to detain immigrants

. . . during a pandemic.” (Id. at 5.) Petitioner asserts that his detention violates

substantive and procedural due process. (Id. at 10-11.)

II. LEGAL STANDARD

Under 28 U.S.C. § 2241(c), a prisoner or detainee may receive habeas relief

only if he “is in custody in violation of the Constitution or laws or treaties of the

United States.” See 28 U.S.C. § 2241(c)(3); see also Maleng v. Cook, 490 U.S. 488,

490 (1989). Because Petitioner is currently detained within the jurisdiction of this

Court and asserts that his continued detention violates due process, this Court has

jurisdiction over his § 2241 petition. See Zadvydas v. Davis, 533 U.S. 678, 699

(2001); Spencer v. Kemna, 523 U.S. 1, 7 (1998).

III. DISCUSSION

Respondent asserts that Petitioner’s § 2241 petition should be denied because:

(1) he is lawfully detained under 8 U.S.C. § 1226(c) and (2) his conditions of

confinement do not violate the Constitution. (Doc. No. 10 at 34.) The Court

considers these arguments in turn below.

A. Petitioner’s Custody Pursuant to 8 U.S.C. § 1226(c)

In the instant case, the parties do not dispute that Petitioner is currently

detained pursuant to 8 U.S.C. § 1226(c), which provides for pre-removal mandatory

detention of individuals previously convicted of certain criminal offenses. See 8

U.S.C. § 1226(c). An individual detained under § 1226(c) may be released only if

the Attorney General decides that release is necessary to protect a witness and that

the individual is not a flight risk and does not pose a danger to society. See id.

§ 1226(c)(2). Thus, “section 1226(c) does not give the Attorney General any

authority to release these [individuals] on bond.” See Chavez-Alvarez v. Warden

York Cty. Prison, 783 F.3d 469, 473 (3d Cir. 2015) (citing Demore v. Kim, 538 U.S.

510, 521 (2003)), abrogated in part on other grounds by Jennings v. Rodriguez, 138

S. Ct. 830 (2018).

Previously, the Third Circuit “read Demore as also recognizing that there are

limits to” the Government’s authority to detain individuals under § 1226(c) without

an opportunity to be considered for bond. See Chavez-Alvarez, 783 F.3d at 473

(citing Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011); Leslie, 678

F.3d 265). Specifically, the Third Circuit recognized that the Demore Court based

its ruling upon the short, fixed, and finite term of pre-removal detention. See id. at

474. Thus, in Chavez-Alvarez, the Third Circuit “read a reasonable time limit into

the statute, relying on the Court’s earlier decision in Diop, which employed the

doctrine of constitutional avoidance to come to this conclusion.” See Coello-Udiel

v. Doll, No. 3:17-CV-1414, 2018 WL 2198720, at *3 (M.D. Pa. May 14, 2018)

(citing Chavez-Alvarez, 783 F.3d at 475; Diop, 656 F.3d at 231). The court noted

that the point at which a detained individual’s liberties outweigh the interests

advanced by detention pursuant under § 1226(c) occurs after the six-month time

frame considered in Demore and before the individual has been detained for one

year. See Chavez-Alvarez, 783 F.3d at 478.

The Supreme Court, however, has explicitly rejected the practice of reading

an implicit time limit into § 1226(c). See Jennings, 138 S. Ct. at 846-47. In

Jennings, the Supreme Court overruled the Ninth Circuit’s conclusion that

“§ 1226(c)’s mandatory [detention] language must be construed to contain an

implicit reasonable time limitation.” See Rodriguez v. Robbins, 804 F.3d 1060, 1079

(9th Cir. 2015) (internal quotations omitted). In its opinion, the Jennings Court

noted:

[Section] 1226(c) does not on its face limit the length of the detention

it authorizes. In fact, by allowing aliens to be released “only if” the

Attorney General decides that certain conditions are met, § 1226(c)

reinforces the conclusion that [individuals] detained under its authority

are not entitled to be released under any circumstances other than those

expressly recognized by the statute. And together with § 1226(a), §

1226(c) makes clear that detention of aliens within its scope must

continue “pending a decision on whether the alien is to be removed

from the United States.” § 1226(a).

In a reprise of their interpretation of § 1225(b), respondents argue, and

the [Ninth Circuit] held, that § 1226(c) should be interpreted to include

an implicit 6-month time limit on the length of mandatory detention.

Once again, that interpretation falls far short of a “plausible statutory

construction.”

In defense of their statutory reading, respondents first argue that

§ 1226(c)’s “silence” as to the length of detention “cannot be construed

to authorize prolonged mandatory detention, because Congress must

use ‘clearer terms’ to authorize ‘long-term detention.’” . . . . But

§ 1226(c) is not “silent” as to the length of detention. It mandates

detention “pending a decision on whether the alien is to be removed

from the United States,” § 1226(a), and it expressly prohibits release

from that detention except for narrow, witness-protection purposes.

Even if courts were permitted to fashion 6-month time limits out of

statutory silence, they certainly may not transmute existing statutory

language into its polar opposite. The constitutional-avoidance canon

does not countenance such textual alchemy.

. . .

Respondents next contend that § 1226(c)’s limited authorization for

witness-protection purposes does not imply that other forms of release

are forbidden, but this argument defies the statutory text. By expressly

stating that the covered aliens may be released “only if” certain

conditions are met, 8 U.S.C. § 1226(c)(2), the statute expressly and

unequivocally imposes an affirmative prohibition on releasing detained

aliens under any other conditions.

. . .

We hold that § 1226(c) mandates detention of any alien falling within

its scope and that detention may end prior to the conclusion of removal

proceedings “only if” the [individual] is released for witness protection

purposes.

Jennings, 138 S. Ct. at 846-47. Thus, to the extent that the Third Circuit’s holdings

in Diop and Chavez-Alvarez were grounded in the canon of constitutional avoidance,

those holdings do not survive the Supreme Court’s decision in Jennings. See

Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 222 & n.11 (3d Cir.

2018).

Jennings, however, “did not call into question [the] constitutional holding in

Diop that detention under § 1226(c) may violate due process if unreasonably long.”

See Borbot v. Warden Hudson Cty. Corr. Facility, 906 F.3d 274, 278 (3d Cir. 2018).

Thus, “even after Jennings, an alien lawfully present but detained under § 1226(c)

can still challenge his detention under the Due Process Clause.” See German Santos

v. Warden Pike Cty. Corr. Facility, 965 F.3d 203, 210 (3d Cir. 2020). When

considering whether a petitioner’s detention has become unconstitutional, “[t]he

most important factor is the duration of detention.” See id. at 211. Moreover, the

Court must also consider “all the other circumstances” of detention, including: (1)

“whether the detention is likely to continue”; (2) “the reasons for the delay, such as

a detainee’s request for continuances”; and (3) “whether the alien’s conditions of

confinement are ‘meaningfully different’ from criminal punishment.” See id.

(quoting Chavez-Alvarez, 783 F.3d at 478).

At the outset, the Court cannot afford Petitioner the requested relief of release

from custody. The Court will, however, consider the German Santos factors to

determine whether he is entitled to a bond hearing. With respect to the first factor,

the duration of detention, Petitioner has been detained since August 18, 2020,

approximately eight (8) months. District courts within the Third Circuit have

“largely found that detention for just over a year pursuant to § 1226(c) is insufficient

to amount to an arbitrary deprivation of liberty and will thus not suffice to prove that

the statute has been unconstitutionally applied.” Gabriel v. Barr, No. 1:20-cv-1054,

2021 WL 268996, at *3 (M.D. Pa. Jan. 27, 2021); see also Moises Acevedo v.

Decker, No. 1:20-cv-1679, 2020 WL 8120875, at *7 (M.D. Pa. Nov. 17, 2020)

(concluding that 7 ½ months of detention was insufficient for the first factor to weigh

in the petitioner’s favor), report and recommendation adopted, 2021 WL 120473

(M.D. Pa. Jan. 13, 2021). Thus, this factor, which the German Santos court

considered to be “the most important,” does not trigger heightened scrutiny and

weighs against relief at this time. German Santos, 965 F.3d at 211.

The Court must next consider whether Petitioner’s detention is likely to

continue. As noted supra, the parties’ briefs for Petitioner’s appeal of the removal

order were due on or before March 18, 2021, and his appeal is currently pending

before the BIA. Thus, while there may be additional proceedings because Petitioner

would be able to petition for review by the Third Circuit of an adverse BIA ruling,

“this carries little weight as, to date, all proceedings have proceeded in a timely

manner without any significant delay attributable to either side.” Gabriel, 2021 WL

268996, at *4.

Third, the Court must consider the reasons for the delay in Petitioner’s

removal proceedings. The Court will not hold Petitioner’s “good-faith challenge to

his removal against him, even if his appeals or applications for relief have drawn out

the proceedings.” See German Santos, 965 F.3d at 211 (citing Chavez-Alvarez, 783

F.3d at 476-77). “Doing so, and counting this extra time as reasonable, would

‘effectively punish [him] for pursuing applicable legal remedies.’” See id. (quoting

Chavez-Alvarez, 783 F.3d at 475). Here, while Petitioner requested one extension

to file his brief with the BIA, there is no indication that he has engaged in bad faith

or caused significant delay. Rather, he has vigorously and timely challenged his

removal.

Respondent maintains that this factor weights in his favor. (Doc. No. 8 at 20.)

The Court disagrees and instead concludes that this factor does not favor either party.

Nothing in the record before the Court suggests that the Government has

intentionally delayed or unreasonably prolonged Petitioner’s removal proceedings.

Respondent asserts that “some portion of the length of Petitioner’s detention is

attributable to his own delay as he has sought continuances and extensions at the

administrative level, and filed countless motions, petitions, and briefs.” (Doc. No.

8 at 20.) While this is so, Petitioner has not sought any substantial continuances.

Moreover,

Finally, the Court must consider whether Petitioner’s “conditions of

confinement are ‘meaningfully different’ from criminal punishment.” German

Santos, 965 F.3d at 211 (quoting Chavez-Alvarez, 783 F.3d at 478). “[I]f an alien’s

civil detention under § 1226(c) looks penal, that tilts the scales toward finding the

detention unreasonable. And as the length of detention grows, so does the weight

that [the Court] give[s] this factor.” See id. (citing Chavez-Alvarez, 783 F.3d at 478).

The Court recognizes that the “Third Circuit has already said that the conditions of

confinement for immigration detainees at York County Prison look penal.” Clark v.

Doll, 481 F. Supp. 3d 394, 398 (M.D. Pa. 2020) (citing Chavez-Alvarez, 783 F.3d at

478). However, Petitioner is not confined to his cell for 23 hours a day, unless he is

in medical isolation. (Ritchey Decl. ¶ 17.) Moreover, detainees are provided access

to TV, reading materials, recreation, and telephones to the fullest extent possible.

(Id.) The Court is also cognizant of the fact that DHS recently reviewed Petitioner’s

custody status on February 4, 2021. (Doc. No. 10-1 at 33-35.) The Court, therefore,

cannot say that Petitioner’s present detention, which was reviewed within the last

two (2) months, and is authorized by statute, is unconstitutionally punitive.

In sum, the Court cannot conclude that § 1226(c), as applied to Petitioner,

violates his due process rights. The Court, therefore, will deny his § 2241 petition

to the extent he seeks a bond hearing regarding his detention status.

B. Petitioner’s Request for Release Based Upon COVID-19

A civil immigration detainee is entitled to the same due process protections as

a pretrial detainee under the Fifth Amendment. See Hope v. Warden York Cty.

Prison, 972 F.3d 310, 325 (3d Cir. 2020) (citing E.D. v. Sharkey, 928 F.3d 299, 306-

07 (3d Cir. 2019)). Habeas corpus cases in which an immigration detainee alleges a

violation of his Fifth Amendment rights arising from COVID-19 “are generally

based on two ‘separate but related theories’: first, that the petitioner’s risk of

exposure to COVID-19 amounts to punishment, and second, that the detention

facility’s COVID-19 policies amount to deliberate indifference to a serous medical

need.” Dannu v. ICE, No. 1:20-cv-1491, 2021 WL 916191, at *2 (M.D. Pa. Mar.

10, 2021). Under either theory, a court should consider:

(1) whether the petitioner has been diagnosed with COVID-19 or is

experiencing symptoms consistent with the disease; (2) whether the

petitioner is among the group of individuals that is at higher risk of

contracting COVID-19; (3) whether the petitioner has been directly

exposed to COVID-19; (4) the physical space in which the petitioner is

detained, and how that physical space affects his risk of contracting

COVID-19; (5) the efforts that the prison has made to prevent or

mitigate the harm cased by COVID-19; and (6) any other relevant

factors.

Saillant v. Hoover, 454 F. Supp. 3d 465, 471 (M.D. Pa. 2020). “It is not enough for

a petitioner to allege that he is detained and presented with a risk of contracting

COVID-19 that is common to all prisoners. Rather, the petitioner must make an

individualized showing that he is entitled to habeas corpus relief when considering

the above factors.” Id. (citing Verma v. Doll, No. 4:20-cv-14, 2020 WL 1814149, at

*5-7 (M.D. Pa. Apr. 9, 2020)).

1. Conditions of Confinement

With respect to Petitioner’s claim that conditions at YCP violate the

Constitution, he must demonstrate that his conditions of confinement “amount to

punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). “To

determine whether challenged conditions of confinement amount to punishment, [a

court must] determine[] whether a condition of confinement is reasonably related to

a legitimate governmental objective.” Sharkey, 928 F.3d at 307 (quoting Hubbard

v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008)). If it is not, the Court “may infer that

the purpose of the governmental action is [unconstitutional] punishment.” Id. The

Third Circuit “further instructs that [courts must] consider the totality of the

circumstances of confinement, including any genuine privations or hardship over an

extended period of time, and whether conditions are (1) rationally related to their

legitimate purpose or (2) excessive in relation to that purpose.” Hope, 972 F.3d at

326.

When assessing whether a governmental interest is legitimate, the Supreme

Court has not “detail[ed] the precise extent of the legitimate governmental interests

that may justify conditions or restrictions of pretrial detention.” Bell, 441 U.S. at

540. However, the Supreme Court has recognized that ensuring detainees’ presence

at hearings, along with “the effective management of the detention facility once the

individual is confined,” constitute legitimate governmental interests. Id. Moreover,

the Government has a legitimate interest in “protecting the public from harm,” Hope,

972 F.3d at 326, and “in reducing the flight risk posed by prisoners facing removal.”

Builes v. Warden Moshannon Valley Corr. Ctr., 712 F. App’x 132, 134 (3d Cir.

2017).

Upon review of the record, the Court concludes that the current conditions at

YCP do not amount to unconstitutional punishment. The Court recognizes that

“[p]risons present unique concerns regarding the spread of this virus; by their very

nature, prisons are confined spaces unsuited for ‘social distancing.’” Verma, 2020

WL 1814149, at *4. However, “CDC guidelines specifically contemplate that

individuals will be confined within prisons during the duration of this pandemic.”

Evdokimow v. Doll, No. 4:21-cv-261, 2021 WL 767554, at *6 (M.D. Pa. Feb. 26,

2021). Conditions at YCP no longer resemble the “unsanitary, tightly-packed

environments” that led a different Judge in this district to order the release of ICE

detainees last year. See Thakker v. Doll, 451 F. Supp. 3d 358, 370 (M.D. Pa. 2020).

First, YCP has removed many detainees and, as of March 11, 2021, was

operating 48% under capacity. (Doc. No. 10 at 23.) Moreover, YCP has taken

significant measures to sanitize the environment, as well as prevent the introduction

or spread of COVID-19. As noted supra, all new intakes are tested for COVID-19

antibodies, and any who do not test positive for such antibodies are provided a swab

test. Moreover, medical intake screenings assess detainees for fever and respiratory

illness and whether they have had close contact with infected individuals. If a

detainee tests positive, he or she is placed in isolation. If a detainee is exposed to a

person who has COVID-19, asymptomatic detainees are placed in quarantine and

are monitored daily for symptoms. Medical staff also conduct roving temperature

checks throughout the facility.

YCP provides soap, water, and disinfectant to inmates. Hand sanitizer is

available to staff, and high-traffic areas are cleaned and disinfected repeatedly

throughout the day. Telephones are cleaned after each use. All inmates have been

provided with surgical masks, and all staff members must wear an N95 mask. YCP

has also limited professional visits to non-contact visits and has suspended in-person

visitation and facility tours. Detainees may still meet with their attorneys via

telephone or video non-contact visits.

These measures indicate that Petitioner’s conditions of confinement are not

unconstitutionally overcrowded or unsanitary. Instead, they have been effective at

curbing the introduction or spread of COVID-19 at YCP. Since March 2020, there

have been 269 cases of COVID-19 among ICE detainees; however, as of March 11,

2021, there were five (5) detainees who were positive for COVID-19 and housed in

isolation. Another Judge of this district has emphasized the “drastic changes put into

effect at [YCP],” concluding that the improved conditions there did “not negate the

Government’s legitimate interest in detention.” Thakker, 456 F. Supp. 3d at 657.

Likewise, in Hope, the Third Circuit analyzed conditions that, “at the time, were

similar to the conditions as they exist today, although arguably less safe because the

facility did not have the ability to test all new incoming detainees.” Evdokimow,

2021 WL 767554, at *8 (citing Hope, 972 F.3d at 327-28). Nevertheless, the Third

Circuit concluded that the petitioners had not demonstrated likelihood of success on

their claim that the conditions of confinement amounted to unconstitutional

punishment. Hope, 972 F.3d at 329.

In sum, the Court concludes that the record reflects that detainees at YCP

receive adequate protection from COVID-19. Petitioner’s detention is reasonably

related to several legitimate governmental interests, and his conditions of

confinement do not amount to punishment that violates the Constitution.

Accordingly, Petitioner’s claim regarding his conditions of confinement will be

denied.

2. Deliberate Indifference

Petitioner also appears to be asserting a claim that YCP has demonstrated

deliberate indifference to his medical needs. With respect to allegations of

inadequate medical care, prison officials violate the Fifth Amendment “when they

exhibit deliberate indifference to serious medical needs of prisoners.” Woloszyn v.

Cty. of Lawrence, 396 F.3d 314, 320 (3d Cir. 2005). “The detainee’s condition must

be such that a failure to treat can be expected to lead to substantial and unnecessary

suffering, injury, or death.” Id. However, “there can be no reckless or deliberate

indifference to that risk unless there is something more culpable on the part of the

officials than a negligence failure to recognize [such] high risk.” Id. “[T]he risk of

. . . injury must not only be great, but also sufficiently apparent that a lay custodian’s

failure to appreciate it evidence an absence of any concern for the welfare of his or

her charges.” Id.

Petitioner suggests that the only way to protect vulnerable individuals, such

as himself, from serious health outcomes is to “prevent them from being infected

with” COVID-19.” (Doc. No. 1 at 4.) However, “a failure to eliminate all risk [does

not] establish that the Government was deliberate indifferent” to his serious medical

needs. Hope, 972 F.3d at 330. While COVID-19 certainly presents a serious

medical issue, as noted supra, YCP “has taken significant steps to curb the

introduction or spread of COVID-19 and to contain and treat those who may become

infected with the virus.” Evdokimow, 2021 WL 767554, at *8. Again, as of March

11, 2021, only five (5) ICE detainees were infected with COVID-19. The Court

cannot conclude from the record before it that YCP has been deliberately indifferent

to Petitioner’s medical needs. On the contrary, YCP has “quickly and effectively

implemented the guidelines published by the CDC such that [it has] stymied any

potential outbreak within [its] walls . . . and [any COVID-19 outbreak at YCP]

appears to have been effectively contained.” Thakkker, 456 F. Supp. 3d at 660.

“There is perfect solution to preventing the spread of COVID-19 in detention

facilities, but [YCP] officials have taken reasonable steps to limit the spread

throughout its facility.” Verma, 2020 WL 1814149, at *6. Petitioner, therefore,

cannot establish “a conscious disregard for the risk posed by COVID-19.” Id.

Moreover, there is no evidence that Petitioner’s medical condition is such

“that a failure to treat can be expected to lead to substantial and unnecessary

suffering, injury, or death.” Woloszyn, 396 F.3d at 320. Petitioner is 44 years old

and has been diagnosed with asthma, anxiety, depression, and hepatitis C. As noted

supra, when conducting Petitioner’s custody review, ICE noted that his hepatitis C

increased his risk should he contract COVID-19. However, the record reflects that

Petitioner tested positive for COVID-19 antibodies upon intake at YCP on August

18, 2020. Moreover, after Petitioner had close contact with another individual who

tested positive for COVID-19, medical staff at YCP began daily symptom screenings

on January 9, 2021. These screenings continued until March 2, 2021, and Petitioner

remained asymptomatic throughout. Given this record, the Court cannot conclude

that YCP has been deliberately indifferent to any risk to Petitioner’s medical needs.

Accordingly, his claim for deliberate indifference will also be denied.

IV. CONCLUSION

For the foregoing reasons, the Court will deny Petitioner’s petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) An appropriate Order

follows.

s/ Sylvia H. Rambo

United States District Judge

Date: April 13, 2021