Martinez Franco v. Jennings ( 2020 )

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 FRANCISCO JAVIER MARTINEZ Case No. 20-cv-02474-CRB FRANCO, 9 Plaintiff, ORDER GRANTING TEMPORARY 10 RESTRAINING ORDER v. 11 DAVID W. JENNINGS, et al., 12 Defendants. 13 Francisco Javier Martinez Franco requests a temporary restraining order releasing him 14 from Immigration and Customs Enforcement detention or, in the alternative, ordering a bond 15 hearing before an Immigration Judge. He argues that the Fifth Amendment’s guarantee of 16 substantive due process prohibits his detention, because the conditions of his confinement increase 17 his risk of contracting COVID-19. The Court rejects this argument, and declines to order 18 Martinez Franco’s release, because he suffers from no underlying medical condition or other risk 19 factor for serious illness from COVID-19. Martinez Franco also argues he is entitled to a bond 20 hearing under Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). The Court agrees, and 21 grants the TRO on this basis. 22 I. BACKGROUND 23 Martinez Franco is a thirty-three-year old native and citizen of Mexico. Martinez Franco 24 Decl. (dkt. 3-1 Ex. A) ¶¶ 1, 5. He has a number of criminal convictions, several of which are drug 25 related. Id. ¶ 10. 26 On September 27, 2017, Martinez Franco was detained by ICE. Id. ¶ 1. He represented 27 himself pro se in the ensuing removal proceedings, in which he sought cancellation of removal. 1 Id. ¶ 13. The Immigration Judge denied cancellation and the Board of Immigration Appeals 2 affirmed, entering a final order of removal on August 27, 2018. BIA Decision (dkt. 3-1 Ex. C). 3 Martinez Franco then filed a petition for review with the Ninth Circuit. That petition remains 4 pending. Dkt. for Case No. 18-72479 (dkt. 3-1 Ex. D). Removal was stayed pending the Ninth 5 Circuit’s decision. See id.; see also Ninth Circuit General Order 6.4(c). 6 Martinez Franco remains in detention at the Mesa Verde Detention Facility. Martinez 7 Franco Decl. ¶ 1. He sought a bond hearing on March 16, 2020, but the Immigration Judge ruled 8 that she lacked jurisdiction to set bond under Jennings v. Rodriguez, 138 S. Ct. 830 (2018). IJ 9 Decision (dkt. 3-1 Ex. G). 10 Martinez Franco fears contracting COVID-19 in detention. Martinez Franco Decl. ¶ 20. It 11 is impossible for him to stay six feet away from other people, avoid touching objects and surfaces 12 other people have touched, or properly sanitize. Id. ¶ 21–24. New detainees and staff come into 13 the facility despite their exposure to the outside world and without wearing masks or gloves. Id. 14 ¶¶ 25–26. 15 The Government avers that Mesa Verde is taking other measures to prevent an outbreak of 16 COVID-19. These include screening new detainees for exposure to or symptoms of COVID-19, 17 isolating detainees who have been exposed, tested positive, or show symptoms, increased 18 sanitization, ending social visitation and limiting attorney contact visits, and screening staff and 19 vendors for symptoms of COVID-19. Pham Decl. (dkt. 13-1) ¶¶ 10–11, 14. There are no 20 suspected or reported cases of COVID-19 at Mesa Verde. Id. ¶ 17. And according to the Mesa 21 Verde medical unit, Martinez Franco “is not at high risk and does not meet any of the high-risk 22 criteria for severe illness from COVID-19 as set forth by the CDC.” Id. ¶ 16. 23 II. LEGAL STANDARD 24 A TRO is an “extraordinary remedy” that should only be awarded upon a clear showing 25 that the plaintiff is entitled to such relief. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 26 7, 22 (2008). The party seeking a TRO must establish: (1) a likelihood of success on the merits; 27 (2) a likelihood of irreparable harm absent preliminary relief; (3) that the balance of equities tips in 1 Alternatively, the moving party must demonstrate that “serious questions going to the merits were 2 raised,” “the balance of hardships tips sharply in the plaintiff’s favor,” and the other two Winter 3 elements are met. Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011). 4 The “[l]ikelihood of success on the merits is the most important Winter factor.” Disney Enters., 5 Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (internal quotation marks omitted). 6 III. DISCUSSION 7 The parties focus on the likelihood of success on the merits. Accordingly, this order 8 addresses that issue first, then turns to a brief analysis of the other three Winter factors. 9 A. Likelihood of Success on the Merits 10 Franco argues that the Fifth Amendment’s guarantee of substantive due process requires 11 his immediate release. Alternatively, he argues that either Casas-Castrillon or the Fifth 12 Amendment’s guarantee of procedural due process entitles him to a bond hearing. See Mot. 13 (dkt. 3) at 1, 6. 14 1. Substantive Due Process 15 Because Franco is a civil detainee, his conditions of confinement violate the Fifth 16 Amendment if they “amount to punishment.” Jonas v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) 17 (quoting Bell v. Wolfish, 441 U.S. 520, 536 (1979)). Conditions of confinement amount to 18 punishment if they are “expressly intended to punish,” excessive in relation to their non-punitive 19 purpose, or “employed to achieve objectives that could be accomplished in so many alternative 20 and less harsh methods.” Id. (internal quotation marks and citations omitted). 21 As an initial matter, the Government argues Franco lacks Article III standing to challenge 22 the conditions of his confinement based on the risk of contracting COVID-19. To have Article III 23 standing a plaintiff must have suffered an “injury in fact,” that is “concrete and particularized, 24 and . . . actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 25 U.S. 555, 560 (1992) (internal citations omitted). It must be “likely, as opposed to merely 26 speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (internal 27 quotation marks omitted). The Government argues that because there are no recorded cases of 1 Franco’s “claim of future injury . . . based on his continued detention . . . is hypothetical.” Opp’n 2 (dkt. 13) at 8–9. And because Martinez Franco could hypothetically contract COVID-19 outside 3 of detention, the Government thinks he has not demonstrated that release would ameliorate the 4 risk of infection. Opp’n at 9–10. 5 This argument has been rejected by many, and perhaps all, courts that have considered it. 6 See, e.g. Doe v. Barr, No. 20-cv-02141-LB, 2020 WL 1820667, at *8 (N.D. Cal. Apr. 12, 2020) 7 (collecting cases). Most of these decisions rely on the Supreme Court’s observation in Helling v. 8 McKinney, 509 U.S. 25 (1993), that it would be “odd to deny an injunction to inmates who plainly 9 proved an unsafe, life-threatening condition on the ground that nothing yet had happened to them.” 10 Id. at 33. “[A] remedy for unsafe conditions need not await a tragic event.” Id. The Court agrees 11 that Helling is on point. The conditions Martinez Franco complains of pose a non-speculative risk 12 of tragic consequences. That is enough to demonstrate Article III standing, even if the detention 13 center is taking some preventative measures and has yet to record a case of COVID-19. See Bent 14 v. Barr, No. 19-cv-06123-DMR, 2020 WL 1812850, at *3 (N.D. Cal. Apr. 9, 2020) (“Given the 15 exponential spread of the virus, the ability of COVID-19 to spread through asymptomatic 16 individuals, and the inevitable delays of court proceedings, effective relief for . . . detainees may 17 not be possible if they are forced to wait until their particular facility records a confirmed case.”). 18 The Government’s theory that Franco has failed to show that immediate release would 19 ameliorate his risk of contracting COVID-19 is equally unconvincing. Opp’n at 9–10. It does not 20 take a public health expert to see that this argument is belied by common sense. In detention, 21 social distancing, the most effective method of avoiding infection for the foreseeable future, is 22 impossible. Martinez Franco Decl. ¶ 21–23; see also Centers for Disease Control and Prevention, 23 Social distancing, quarantine, and isolation (Apr. 4, 2020), 24 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html. Out of 25 detention, social distancing would be possible. Release from detention therefore ameliorates the 26 risk of infection with COVID-19. 27 Next, the Government argues that Franco cannot challenge the conditions of his 1 many if not all courts to consider it. See Doe, 2020 WL 1820667, at *8. Those decisions are 2 correct. The Ninth Circuit has noted that it is “fairly well established” that a federal detainee can 3 challenge the conditions of his confinement in an action brought under 28 U.S.C. § 2241. 4 Workman v. Mitchell, 502 F.2d 1201, 1208 n.9 (9th Cir. 1974). 5 It is therefore necessary to assess the merits of Martinez Franco’s Fifth Amendment claim. 6 Courts considering similar claims are divided. At least one decision has rejected substantive due 7 process claims premised on the risk of contracting COVID-19 while in immigration detention. 8 Judge Robart of the Western District of Washington reasoned that there is no evidence that 9 confinement during the pandemic is intended to punish; it serves the “legitimate governmental 10 objective” of “preventing detained aliens from absconding and ensuring that they appear for 11 removal proceedings.” Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557, at *2 12 (W.D. Wash. Mar. 19, 2020). Given that the petitioner’s facility had no recorded COVID-19 13 outbreak and was taking steps to prevent the virus’s spread, continued confinement was not 14 “excessive in relation to that objective.” Id. Judge Robart noted that he was aware of no authority 15 for the proposition that “the fact of detention itself becomes an ‘excessive’ condition solely due to 16 the risk of a communicable disease outbreak—even one as serious as COVID-19.” Id. On the 17 other hand, numerous decisions, including in this district, have ordered detainees who were 18 particularly vulnerable to serious illness from COVID-19 released because the heightened risk of 19 contracting the virus rendered detention “excessive in relation to the government’s interest in 20 securing [their] presence at immigration proceedings.” See Doe, 2020 WL 1820667, at *9 21 (collecting cases). 22 But ordering Martinez Franco released would go further than any previous decision, 23 because he does not claim to be in a category of persons particularly vulnerable to serious illness 24 from COVID-19 or to have any underlying medical condition. Franco does not identify, and the 25 Court has not seen, a case finding that increased likelihood of contracting the virus rendered 26 unconstitutional the detention of a person without underlying medical conditions or some other 27 1 vulnerability.1 2 Franco points out that COVID-19 can cause death or serious illness in people who do not 3 suffer from underlying medical conditions or other risk factors. Reply (dkt. 15) at 7–8. Be that as 4 it may, most young, healthy people who contract the virus do not suffer life-threatening illness. 5 See Centers for Disease Control and Prevention, Severe outcomes among patients with 6 coronavirus disease 2019 (COVID-19) — United States, February 12–March 16, 2020 (March 27, 7 2020), cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm. “[C]onstitutional rights are personal,” 8 Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973), so it is appropriate to take Franco’s risk of 9 serious illness into account when considering his likelihood of success on this claim, see also 10 Ortuño v. Jennings, No. 20-cv-02064-MMC, 2020 WL 1701724, at *3 (N.D. Cal. Apr. 8, 2020) 11 (denying a TRO as to petitioners who failed to demonstrate an underlying medical condition 12 placing them at heightened risk from COVID-19). Given the absence of a recorded COVID-19 13 case at Mesa Verde, the steps the facility is taking to prevent an outbreak, and, most importantly, 14 the fact that Martinez Franco does not profess to be at heightened risk of serious illness from 15 COVID-19, the Court finds that his detention is not disproportionate to the non-punitive 16 government purposes it serves. See Habibi v. Barr, No. 20-cv-00618-BAS-RBB, 2020 WL 17 1864642, at *4–5. 18 Martinez Franco’s argument that his treatment is “less considerate” than that of criminal 19 detainees suffers a similar flaw. See Mot. at 9–10. He points out that convicted prisoners have 20 1 None of the cases Franco identifies fit the bill. See Reply at 8–9. One certified a class of all 21 detainees facing an increased risk of infection but did not actually release any detainee who was not particularly. Savino v. Souza, No. 20-10617-WGY, 2020 WL 1703844, at *7 (D. Mass. Apr. 22 8, 2020). Others involved petitioners who did not fall into a category of heightened risk recognized by the CDC, but nevertheless suffered from underlying medical conditions. Malam v. 23 Adducci, No. 20-10829, 2020 WL 1809675, at *3 (E.D. Mich. Apr. 9, 2020); Castillo v. Barr, CV 20-00605 TJH (AFMx), 2020 WL 1502864, at *1 (C.D. Cal. Mar. 27, 2020). And still others have 24 justified release primarily on grounds other than the risk of infection. Ali v. DHS, No. 4:20-cv- 0140, 2020 WL 1666074, at *3–5 (S.D. Tex. Apr. 2, 2020) (petitioner ordered released because 25 justification for detention, imminent deportation, disappeared when Pakistan closed its borders); Calderon Jimenez v. Wolf, No. 1:18-cv-10225-MLW, Dkt. 507-1, at 2:16–3:23 (petitioner ordered 26 released because it appeared that original justification for his detention was incorrect). The Ninth Circuit’s unreported order in Xochihua-Jaimes v. Barr, No. 18-71460, 2020 WL 1429877 (9th Cir. 27 Mar. 24, 2020), contains one sentence of reasoning and does not address whether the petitioner 1 been released from jails and prisons to slow the spread of COVID-19, id. at 10, but offers no 2 evidence that criminal detainees have been released indiscriminately, without reference to their 3 vulnerability to COVID-19, flight risk, or dangerousness to the community. 4 Even if the Court agreed that civil detention is unconstitutional whenever it impairs proper 5 social distancing, Martinez Franco’s requested relief is not an appropriate means to implement that 6 rule. Martinez Franco is not seeking an injunction requiring the government to implement 7 appropriate social distancing at Mesa Verde. He seeks only release from detention, and only for 8 himself. If the Constitution requires appropriate social distancing for civil detainees, that result 9 should be achieved with an injunction ordering social distancing in detention facilities, not 10 releasing detainees who request a TRO on a first-come, first-serve basis. See Dawson, 2020 WL 11 1304557, at *2 (“[E]ven if Plaintiffs could show a Fifth Amendment violation, Plaintiffs provide 12 no authority under which such a violation would justify immediate release, as opposed to 13 injunctive relief that would leave Plaintiffs detained while ameliorating any alleged violative 14 conditions within the facility.”). 15 2. Request for a Bond Hearing 16 Martinez Franco’s first argument for a bond hearing relies on Casas-Castrillon’s holding 17 that 8 U.S.C. § 1226(c) authorizes detention only until the BIA issues a final order of removal. 18 535 F.3d at 948. After the BIA has issued a final order of removal, detention is authorized under 8 19 U.S.C. § 1226(a), even if removal is stayed pending review by the Court of Appeals. Id. The 20 switch is consequential, because while detention is mandatory under § 1226(c), it is discretionary 21 under § 1226(a). See id. at 951; see also 8 U.S.C. § 1226. Noncitizens detained under § 1226(a) 22 are therefore entitled to a bond hearing, while those detained under § 1226(c) are not. Casas- 23 Castrillon, 535 F.3d at 951. Casas-Castrillon means that when a detainee who, like Martinez 24 Franco, was originally subject to mandatory detention under § 1226(c) becomes subject to a final 25 order of removal issued by the BIA, the authority for his detention switches to § 1226(a), entitling 26 him to a bond hearing. 27 The Government does not contest that Casas requires this result. Instead, it argues that 1 Jennings. Opp’n at 14-16. This Court rejected that argument earlier this month. See Avilez v. 2 || Barr, No. 19-cv-08296-CRB, 2020 WL 1704456, at *3 (N.D. Cal. April 8, 2020). Martinez 3 Franco has demonstrated a likelihood of success on his claim that Casas-Castrillon entitles him to 4 a bond hearing. It is therefore unnecessary to consider his alternative argument that the Fifth 5 Amendment’s guarantee of procedural due process entitles him to a bond hearing. 6 B. Other Winter Factors 7 The other Winter factors are also satisfied. The Ninth Circuit has recognized that the 8 || harms Martinez Franco faces from continued detention without a bond hearing—including 9 economic hardship and separation from his family—are irreparable. Hernandez v. Sessions, 872 10 || F.3d 976, 995 (9th Cir. 2017); see also Martinez Franco Decl. {| 17-19. The balance of equities 11 tips in Martinez Franco’s favor because the cost of a bond hearing is minimal when weighed 12 against these severe and irreparable hardships. See id. at 996. Finally, and similarly, the public 5 13 interest does not weigh against a TRO. If anything, it weighs in favor of one, because the Court 14 || must consider the hardship to Martinez Franco’s family and friends and the waste of public 3 15 resources from the expense of his possibly unnecessary detention. See id. 16 || Iv. CONCLUSION 3 17 For the foregoing reasons, Martinez Franco’s request for a TRO ordering a bond hearing is 18 granted. He must be provided with a bond hearing before an immigration judge within fifteen 19 || days of the filing of this Order. 20 IT ISSO ORDERED. 21 Dated: April 24, 2020 co CHARLES R. BREYER 22 United States District Judge 23 24 25 26 27 28