Cicirello

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SHARMELLA KING MARKS,

Petitioner,

v. DECISION AND ORDER

SCOTT A. CICIRELLO, in his official 1:26-CV-00756-EAW

capacity as Warden of the Allegany

County Jail, et. al,

Respondents.

Petitioner Sharmella King Marks (“Petitioner”) is a civil immigration detainee

alleging that she is being detained in United States Immigration and Customs Enforcement

(“ICE”) custody pending removal proceedings in violation of the United States

Constitution, the Administrative Procedure Act, and the law. (Dkt. 1). She seeks relief

under 28 U.S.C. § 2241. (Id.). She is being held in ICE custody at the Allegany County

Jail. (Id. at ¶ 1).

BACKGROUND

Petitioner is detained pursuant to 8 U.S.C. § 1231, which governs detention of

individuals subject to a final order of removal.1 Johnson v. Guzman Chavez, 594 U.S. 523,

534 (2021). Petitioner, a native and citizen of Guyana, arrived in the United States on

1 Petitioner notes that the order of removal was instituted in abstentia and challenges

its constitutionality but does not dispute the existence of the final order of removal. (See

Dkt. 1 at ¶¶ 1, 12).

October 20, 2020, with a B-1/B-2 visa. (Dkt. 1 at ¶ 2). She married a United States citizen

on October 1, 2023, and later separated from her husband due to alleged abuse. (Id. at ¶ 6).

On October 24, 2025, Petitioner gave birth to a son. (Dkt. 1-3 at 3). Petitioner filed an

I- 360 Petition for Special Immigrant pursuant to the Violence Against Women Act on

December 5, 2025. (Id. at ¶ 9). Removal proceedings were commenced in Immigration

Court on December 10, 2025.

On January 8, 2026, an immigration judge (“IJ”) ordered Petitioner removed to

Guyana in abstentia following her failure to appear at her removal hearing, which the IJ

deemed to constitute an abandonment of any pending applications for relief or protection

from removal. (Dkt. 1 at ¶ 4; Dkt. 1-4). Petitioner filed a motion to reopen proceedings

and rescind the in abstentia order of removal on the grounds that she did not receive proper

notice of the hearing and was entitled to relief pursuant to her status under VAWA. (Dkt.

1 at ¶ 13; Dkt. 1-5). Petitioner’s motion was denied by the IJ on February 13, 2026. (Dkt.

1 at ¶ 14; Dkt. 1-6). Petitioner filed an appeal of the denial of her motion to reopen and for

a stay of removal with the Board of Immigration Appeals on March 9, 2026. (Dkt. 1 at

¶ 16). That appeal remains pending.

Petitioner was detained on February 3, 2026, as she was on her way to a family court

appearance in Schenectady, New York. (Dkt. 1 at ¶ 10). Petitioner, who has no criminal

history (id. at ¶ 3), is currently housed with the general population at the Allegany County

Jail (i.e., with individuals charged or convicted of crimes). She alleges that she has

experienced significant medical issues while in custody that are not being addressed by

Respondents and filed the instant habeas petition on April 16, 2026. (Dkt. 1). The Court

issued a Text Order on April 17, 2026, temporarily enjoining Respondents from

transferring Petitioner outside the Western District of New York and the United States

pending a resolution of the petition and scheduled a telephone conference for April 21,

2026. (Dkt. 3). On the same day, Respondents advised that Petitioner was scheduled to be

removed on April 21, 2026, and asked the Court to lift the stay of transfer or removal,

arguing that the Court lacks jurisdiction to stay the execution of a removal order pursuant

to 8 U.S.C. § 1252(g). (Dkt. 5). The Court advised Respondents that in order to

meaningfully consider their request, it required additional information regarding the status

of Petitioner’s removal proceedings and also granted leave to Petitioner to submit any legal

authority that would support an argument that the stay should not be lifted. (Dkt. 6). The

Court rescheduled the telephone conference for April 20, 2026. (Id.). On April 20, 2026,

the Court conducted the telephone conference with the parties and following the

conference, scheduled an evidentiary hearing on Petitioner’s deliberate indifference

claim. (Dkt. 16).

On April 28, 2026, the Court held the evidentiary hearing. Respondents offered

Petitioner’s medical records from her detention in the Niagara County Jail and Allegany

County Jail into evidence, which the Court filed under seal. (Dkt. 21). In addition to the

submission of Petitioner’s medical records, the Court heard testimony from Petitioner and

from Petitioner’s medical expert, Dr. Yousuf Sayyed, M.D. (Dkt. 30). Respondents did

not call any witnesses. At the conclusion of the hearing, the Court reserved decision and

directed the parties to submit additional briefing in support of their respective positions,

which they both have done.

DISCUSSION

A. Jurisdiction

When an immigration judge enters a final order of removal against an individual,

“the Government ordinarily secures the alien’s removal during a subsequent 90-day

statutory ‘removal period,’ during which time the alien normally is held in custody.” See

Zadvydas v. Davis, 533 U.S. 678, 682 (2001); see also Wang v. Ashcroft, 320 F.3d 130, 145

(2d Cir. 2003) (“[d]uring the [90-day] removal period” under § 1231, “the Attorney General

shall detain the alien”), superseded by statute on other grounds, 8 U.S.C. § 1252(a)(4).

The removal period begins on the latest of: (1) the date the removal order becomes

administratively final; (2) “[i]f the removal order is judicially reviewed and if a court orders

a stay of the removal of the alien, the date of the court’s final order”; or (3) the date the

alien is released from detention or confinement, unless such detention or confinement is

the result of an immigration process. 8 U.S.C. § 1231(a)(1)(B).

“Section 1252(g) prohibits courts from “hear[ing] any cause or claim by or on behalf

of any alien arising from the decision or action by the Attorney General [or Secretary of

Homeland Security] to commence proceedings, adjudicate cases, or execute removal

orders against any alien under this chapter.” Ozturk v. Hyde, 136 F.4th 382, 396 (2d Cir.

2025) (quoting 8 U.S.C. § 1252(g)). But “[t]his bar on judicial review is thus cabined ‘to

three discrete actions’: a decision to ‘commence proceedings, adjudicate cases, or execute

removal orders.’” Id. at 396-97 (quoting Reno v. Am.-Arab Anti-Discrimination Comm,

525 U.S. 471, 482 (1999)) (citation modified). In Ozturk, the Second Circuit confirmed

that an independent constitutional challenge to detention is not necessarily foreclosed by

the Court’s lack of jurisdiction to resolve a challenge to removal. Id. at 400-01.

Based on this authority, the Court concludes and Respondents do not dispute (see

Dkt. 22 at ¶ 1) that it possesses jurisdiction to resolve Petitioner’s Fifth Amendment

challenge to her detention. The Court further concludes that the temporary stay imposed

was necessary in order to permit a meaningful resolution of the constitutional questions

presented. Rahman v. Catletti, No. 26 CIV. 3054 (PAE), 2026 WL 1008326, at *1

(S.D.N.Y. Apr. 14, 2026) (“To preserve the Court’s jurisdiction pending a ruling on the

petition, petitioner shall not be removed from the United States unless and until the Court

orders otherwise.”).

B. Fifth Amendment Claims

As noted, Petitioner’s challenge arises under the Fifth Amendment.2 In order to

sustain a Fifth Amendment deliberate indifference claim, a detainee must show “(1) the

existence of a ‘serious medical need,’ and (2) that Respondents acted with deliberate

2 Notwithstanding that the petition frames Petitioner’s claim as an Eighth Amendment

challenge, the Court addresses it under the Fifth Amendment, which it confirmed and was

not disputed by the parties at the hearing. See De Oliveira v. United States Dep’t of

Homeland Sec., No. 25-CV-0942-MAV, 2026 WL 787890, at *3 (W.D.N.Y. Mar. 20, 2026)

(“[The Fifth Amendment protects federal pretrial detainees from deliberate indifference to

their serious medical needs.”); Munoz Materano v. Arteta, 804 F. Supp. 3d 395, 423

(S.D.N.Y. 2025) (“The Fifth Amendment of the Constitution guarantees that civil

detainees, including noncitizen detainees, may not be subject to conditions of confinement

or denial of medical care that ‘amount to punishment.’” (quoting Bell v. Wolfish, 441 U.S.

520, 535 (1979))); Coronel v. Decker, 449 F. Supp. 3d 274, 282 (S.D.N.Y. 2020) (“The

Eighth Amendment, however, does not apply to civil detainees. . . . For federal civil

detainees, those rights are cognized under the Fifth Amendment’s Due Process Clause. The

Due Process Clause thus prohibits the federal government from being deliberately

indifferent to the medical needs of civil detainees.” (citation modified)).

indifference to such need.” Graterol Ruiz v. Trump, No. 2:26-CV-00012, 2026 WL 483182,

at *3 (D. Vt. Feb. 20, 2026) (citation modified); Quintero v. Francis, No. 25-CV-10107

(MKV), 2026 WL 265921, at *7 (S.D.N.Y. Feb. 2, 2026) (“[T]o prevail on [a deliberate

indifference] claim, Petitioner must show (1) that she had serious medical needs and (2)

that the Government acted with deliberate indifference to such needs.” (citation modified)).

“The serious medical needs standard contemplates a condition of urgency such as

one that may produce death, degeneration, or extreme pain,” and to establish deliberate

indifference, “a detainee must prove ‘that the defendants knew that failing to provide the

complained of medical treatment would pose a substantial risk to [the detainee’s] health or

that the defendants should have known that failing to provide the omitted medical treatment

would pose a substantial risk to the detainee’s health.” Quintero, 2026 WL 265921 at *7

(quoting Charles v. Orange Cnty., 925 F.3d 73, 82, 85 (2d Cir. 2019) (citation modified)).

While “mere negligence” or medical malpractice does not suffice, the conduct “may rise

to the level of deliberate indifference when it involves culpable recklessness, i.e., an act or

a failure to act . . . that evinces a conscious disregard of a substantial risk of serious harm.”

Charles, 925 F.3d at 87 (quoting Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000)).

At the evidentiary hearing, Petitioner presented sufficient evidence demonstrating

by a preponderance of the evidence, see McDonald v. Feeley, 535 F. Supp. 3d 128, 135

(W.D.N.Y. 2021) (citing standard under § 2241), that she has a sufficiently serious medical

condition presenting a condition of urgency that could result in death, degeneration, or

extreme pain. She testified to experiencing chest pain, elevated blood pressure, cramping,

back pain, leg pain, and coughing up blood, and also reported a family history of cardiac

issues. Dr. Sayyed’s review of the medical records corroborated the seriousness of

Petitioner’s medical condition.

In addition, the medical records, Petitioner’s testimony, and Dr. Sayyed’s opinion

(the only expert evidence in the record before the Court) support a conclusion that ICE

officials were deliberately indifferent to a substantial risk to Petitioner’s health. Dr. Sayyed

testified that based on a review of the medical evidence, he could not rule out a pulmonary

embolism without conducting lab work, blood work, or imaging, and that Petitioner’s

condition (including abnormal EKG results), warranted prompt referral to a cardiologist.

He noted that the passage of time can serve to negate the efficacy of certain testing,

including blood work. He also expressly opined that ICE officials’ March 25, 2026

decision to reject a recommended referral for cardiac ultrasound and cardiology referral

(see Dkt. 21 at 34) was unreasonable based on Petitioner’s medical and EKG reports as of

that date and posed a substantial risk to Petitioner’s health. Dr. Sayyed further opined that

Respondents’ ultimate decision to refer her for a cardiology appointment that was not

scheduled until June 30, 2026 (Dkt. 21 at 36, 59) was similarly unreasonable and posed a

substantial risk to her health.

Respondents contend that the medical records document a litany of medical tests,

examinations, medication, and treatment from multiple providers at the Allegany County

Jail, and this undercuts Petitioner’s claims of deliberate indifference. (Dkt. 22 at ¶ 12).

While true that Petitioner has received frequent interaction with the Jail’s medical providers

(i.e., third parties who do not report to Respondents), the evidence also establishes that

Respondents’ medical providers rejected the request for a cardiac ultrasound and

cardiology referral. And then, when a cardiology referral was ultimately scheduled, it was

put off for months. This constitutes a violation of Petitioner’s Fifth Amendment rights.

C. Remedy

Petitioner’s immediate release is the obvious remedy for the proven violation. But

as discussed at the evidentiary hearing, in addition to immediate release, Petitioner also

seeks a permanent injunction that would preclude any re-detention until the Government is

prepared to put her on a flight to Guyana. However, Petitioner has not supported this

request with ample legal authority. As noted, this Court does not have jurisdiction to

impede Respondents’ efforts to remove Petitioner and detention in connection with such

removal is lawful. Santamaria Turcios v. Mullin, No. 1:25-CV-8150-MKV, 2026 WL

1180124, at *10 (S.D.N.Y. Apr. 30, 2026) (“By statute, under Section 1231(a), ICE has

authority to detain an alien who is subject to a final order of removal.”); You, Xiu Qing v.

Nielsen, 321 F. Supp. 3d 451, 457 (S.D.N.Y. 2018) (“Respondents are empowered to

remove Petitioner at their discretion.”). And while the Court did conclude it was

appropriate to stay removal pending resolution of the constitutional questions raised in the

petition arising from Petitioner’s medical needs, see, e.g., Leuthavone v. Salisbury, No. 97

Civ. 556, 2025 WL 1135588, at *2 (D.R.I. Apr. 17, 2025) (granting a stay of removal “to

maintain the status quo and preserve the Court’s ability to adjudicate the habeas petition”);

Khalil v. Joyce, No. 25 Civ. 1935, 2025 WL 750599, at *1 (S.D.N.Y. Mar. 10, 2025) (“To

preserve the Court’s jurisdiction pending a ruling on the petition, Petitioner shall not be

removed from the United States unless and until the Court orders otherwise.”), upon

Petitioner’s release from detention, those matters are deemed resolved and Petitioner has

provided no authority that would permit this Court to continue to impose such a permanent

restraint on her removal once the matters in the petition have been ruled upon.3

Accordingly, Petitioner’s request that the Court enter a permanent injunction to enjoin

Petitioner’s re-detention is denied. However, in order for the relief granted herein to be

effectuated, the Court directs that the stay in this case will remain in place until May 18,

2026. This will hopefully allow Petitioner to obtain necessary medical care prompted by

the unconstitutional denial of such at the hands of Respondents.

CONCLUSION

For the foregoing reasons, the Court finds that Petitioner has established a Fifth

Amendment violation based on Respondents’ deliberate indifference to her serious medical

need, necessitating Petitioner’s release from custody. Although the Court cannot grant a

stay of removal as requested by Petitioner now that the allegations in the petition have been

resolved, the Court hereby orders that the previously-entered temporary stay (Dkt. 3) shall

3 Nor is the Court persuaded by Petitioner’s alternative argument that ICE Directive

11032.4, Identification and Monitoring of Pregnant, Postpartum, or Nursing Individuals

(July 1, 2021), https://www.ice.gov/directive-identification-and-monitoring-pregnant-

postpartum-or-nursing-individuals justifies her release or the imposition of a permanent

injunction. As an initial matter, because Petitioner is subject to a final order of removal, it

is not clear that ICE Directive 11032.4 would direct her release as she argues. See Lopera

Ramirez v. Harper, No. CV 26-386 SEC P, 2026 WL 1067923, at *2 (W.D. La. Apr. 20,

2026) (holding that petitioner’s detention pursuant to a final order of removal was required,

and such “detention is consistent with ICE Directive 11032.4, and this Court cannot order

Petitioner’s release”); ICE Directive 11032.4 (“This Directive does not address whether

removal proceedings should be initiated (i.e., the issuance of a charging document) against

such individuals.”). Further, contrary to Petitioner’s argument that the use of handcuffs

multiple times constitutes “flagrant violations” of this ICE directive, the portion of the

directive regarding restraints is limited to “individuals who are pregnant or in postdelivery

recouperation” and is not extended to all postpartum detainees.

remain in place until May 18, 2026. In other words, as of May 19, 2026, the stay is hereby

vacated and the Clerk of Court is directed to close this case at that point without further

order of the Court.

SO ORDERED. ? (yo)

RLIZABETHA. WSEFORD

Chief Judge

United States District Court

Dated: May 6, 2026

Rochester, New York

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