In Re: Da Graca v.

United States Court of Appeals
For the First Circuit
No. 20-2117
IN RE: AIRES DA GRACA; CONROY LEWIS; CYRIL OKOLI; DARLIN ALBERTO
GUILLERMO; DIMITAR DASKALOV; EDSON MARTINS; EMMANUEL LOPEZ;
FLAVIO PRADO JUNIOR; FRED KAYITARE; GABRIEL DE LA PAZ; JOAO
AMADO; KEITH WILLIAMS,
Petitioners,
v.
STEVEN J. SOUZA, in his official capacity as Superintendent of
the Bristol County House of Correction,
Respondent,
TAE D. JOHNSON, in his official capacity as Acting Director for
U.S. Immigration and Customs Enforcement;* ALEJANDRO MAYORKAS, in
his official capacity as Secretary of the Department of Homeland
Security;** IMMIGRATION CUSTOMS ENFORCEMENT; TODD M. LYONS, in
his official capacity as Acting Director of the Boston Field
Office of Immigration and Customs Enforcement; THOMAS M.
HODGSON, in his official capacity as Bristol County Sherriff,
Respondents.
PETITION FOR A WRIT OF MANDAMUS TO THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
* Pursuant to Fed. R. App. P. 43(c)(2), Acting Director for
U.S. Immigration and Customs Enforcement Tae D. Johnson has been
substituted for former Senior Official Performing the Duties of
the Director of U.S. Immigration and Customs Enforcement Matthew
T. Albence as respondent.
**Pursuant to Fed. R. App. P. 43(c)(2), Secretary of the U.S.
Department of Homeland Security Alejandro Mayorkas has been
substituted for former Acting Secretary of the U.S. Department of
Homeland Security Chad F. Wolf as respondent.
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Selya, and Kayatta,
Circuit Judges.
Sameer Ahmed, with whom the Harvard Law School Crimmigration
Clinic was on brief, for petitioners.
Christina Parascandola, Senior Litigation Counsel, Office of
Immigration Litigation, with whom Jeffrey Bossert Clark, Acting
Assistant Attorney General, William C. Peachey, Director, Office
of Immigration Litigation, Jeffrey S. Robins, Deputy Director,
Office of Immigration Litigation, William C. Silvis, Assistant
Director, Office of Immigration Litigation, Michelle M. Ramus,
Trial Attorney, Office of Immigration Litigation, Thomas E.
Kanwit, Assistant United States Attorney, and Michael Fitzgerald,
Assistant United States Attorney, were on brief, for respondents.
March 17, 2021
LYNCH, Circuit Judge. Petitioners are immigration
detainees primarily held at the Bristol County House of Correction
("BCHOC"). Respondents include state correction officials and
federal U.S. Immigration and Customs Enforcement ("ICE") officials
who secured petitioners' detention after they were picked up,
usually after commission of criminal felony offenses, and found
not to be legally in the United States. Claiming that the district
court erred in denying their bail applications despite the ongoing
COVID-19 pandemic, the detainees petition for a writ of mandamus.
We deny the petition.
I. Facts and Procedural History
Petitioners are class members in a habeas class action
filed against ICE and certain government officials on March 27,
2020. The habeas petition requested relief for immigration
detainees held at BCHOC who were "at imminent risk of contracting
COVID-19, the lethal virus that is sweeping the globe and that
feeds on precisely the unsafe, congregate conditions in which
Plaintiffs are being held." When the habeas petition was filed,
there were approximately 148 detainees held at BCHOC. See Savino
v. Souza, 453 F. Supp. 3d 441, 443 (D. Mass. 2020).
The habeas petition stated that the immigration
detention facilities were overcrowded, housed a high proportion of
people especially vulnerable to COVID-19, offered detainees
limited access to hygiene products, and did not allow for social
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distancing. It alleged that the defendants violated the
petitioners' Fifth Amendment rights to due process by exposing
them to an "imminent risk of physical, emotional and mental harm"
and violated § 504 of the Rehabilitation Act, see 29 U.S.C.
§ 794(a), by exposing petitioners with underlying medical
conditions to COVID-19 and thus preventing them from participating
in the removal process by reason of their disability. Among other
things, the habeas petition sought immediate release of the
petitioners to the population at large or "placement in community-
based alternatives to detention." Petitioners also moved for a
temporary restraining order and class certification.
On April 2, 2020, the district court held a hearing,
grouped detainees into five subclasses based on their criminal
histories and medical conditions, and provisionally certified
these subclasses. See Savino, 453 F. Supp. 3d at 448 & n.8. The
next day, it held another hearing at which it requested that the
parties submit a list of fifty detainees applying for bail by April
4, 2020, and a list of ten bail applications per day starting on
April 7, 2020. The parties did not agree on a list of fifty
detainees by April 4, 2020, so the court created its own list and
set hearing dates beginning on April 7, 2020.
On April 8, 2020, the district court issued a memorandum
and order holding that the petitioners had standing to bring their
claims and certified the petitioners' proposed class of "[a]ll
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civil immigration detainees who are now held . . . at [BCHOC]."1
Id. at 454. It said it would "follow[] the light of reason and
the expert advice of the [Centers for Disease Control and
Prevention] in aiming to reduce the population in the detention
facilities so that all those who remain (including staff) may be
better protected," id. at 454, and that it would use its "inherent
authority" to "order bail for several Detainees and to consider
bail applications for others," id. at 453. In considering bail
applications, the court said it would prioritize releasing non-
violent detainees and in fact did so. See id. at 454.
The district court conducted hearings on many detainees'
bail applications throughout April. By April 28, 2020, it had
granted bail to forty-two detainees and denied bail to nineteen.
By May 5, 2020, eighty-two detainees remained at BCHOC, about a
45% reduction from the original 148 detainees.
On May 7, 2020, the district court granted the class's
motion for a preliminary injunction. It ordered that no new
immigration detainees be admitted to BCHOC, that all current
detainees be tested for COVID-19, and that all staff who come into
contact with BCHOC detainees also be tested. On May 12, 2020, the
1 The petitioners had originally proposed a broader class
encompassing "[a]ll civil immigration detainees who are now or
will be held" at BCHOC. Savino, 453 F. Supp. 3d at 448. The
district court "certif[ied] the general class as proposed by the
Detainees, albeit excluding those not yet in custody." Id.
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court issued a memorandum of decision providing its reasoning for
its issuance of the preliminary injunction. See Savino v. Souza,
459 F. Supp. 3d 317, 320-21 (D. Mass. 2020).
On November 5, 2020, the class moved for reconsideration
of the court's denial of bail to some of the petitioners. The
district court denied this motion on December 18, 2020.
The five remaining detainees who continue to pursue a
writ of mandamus before this court -- Aires Da Graca, Flavio Prado
Junior, Conroy Lewis, Joao Amado, and Fred Kayitare -- filed their
petition on November 25, 2020.2 They had been denied bail in April
2020.3 The district court did not explicitly state reasons for
denying bail to these detainees, but all of them have criminal
histories showing that they were convicted of committing violent
crimes.4
2 In parallel with this mandamus petition, the petitioners
also filed a notice of appeal. The two proceedings were
consolidated in this court for oral argument. Their appeal will
be disposed of in a separate and subsequent opinion.
3 There were originally twelve petitioners for a writ of
mandamus. Seven are no longer in immigration detention and the
petition before us is moot as to them. Prado is no longer at BCHOC
but is detained at another facility in Massachusetts.
4 Da Graca has been convicted of carjacking, domestic
violence offenses, drug possession, and trespassing. Prado has an
outstanding arrest warrant in Brazil, where he was convicted of
rape. He had escaped from Brazilian prison before coming to the
United States. An immigration judge rejected his claim that his
rape conviction was tainted and found that he was a danger to the
community. Lewis has been convicted of carrying a dangerous
weapon, reckless endangerment, criminal trespass, and possession
with intent to sell a controlled substance. Among other things,
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II. Analysis
The All Writs Act allows federal courts to "issue all
writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law."
28 U.S.C. § 1651(a). The writ of mandamus has "stringent
requirements," In re Tsarnaev, 780 F.3d 14, 16 (1st Cir. 2015),
and is "generally thought an inappropriate prism through which to
inspect exercises of judicial discretion," id. at 18 (quoting In
re Bushkin Assocs., Inc., 864 F.2d 241, 245 (1st Cir. 1989)).
"'[O]nly exceptional circumstances amounting to a judicial
"usurpation of power,"' or a 'clear abuse of discretion,' 'will
justify the invocation of this extraordinary remedy.'" Cheney v.
U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (citations
omitted) (first quoting Will v. United States, 389 U.S. 90, 95
(1967); then quoting Bankers Life & Cas. Co. v. Holland, 346 U.S.
379, 383 (1953); and then quoting Will, 389 U.S. at 95). Before
mandamus can be granted, petitioners must show that there is no
other adequate means to attain their desired relief and that they
have a "clear and indisputable" right to issuance of the writ.
Id. at 380-81 (quoting Kerr v. U.S. Dist. Ct. for N. Dist. of Cal.,
426 U.S. 394, 403 (1976)); see In re Fin. Oversight & Mgmt. Bd.
Amado has been convicted of felony armed robbery, aggravated
assault with a firearm, felony burglary, and, most recently,
carrying a firearm without a license. Kayitare has been convicted
of two counts of assault and one count of unlawful sexual touching.
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for P.R., 985 F.3d 122, 127 (1st Cir. 2021). Further, the court
issuing the writ, acting within its discretion, "must be satisfied
that the writ is appropriate under the circumstances." Cheney,
542 U.S. at 381.
Mandamus comes in two varieties: supervisory mandamus
and advisory mandamus. In re Grand Jury Subpoena, 909 F.3d 26, 28
(1st Cir. 2018). The petitioners argue for both types.
A. Supervisory Mandamus
Supervisory mandamus "is available when 'the issuance
(or nonissuance) of [a district court] order presents a question
about the limits of judicial power, poses some special risk of
irreparable harm to the [party seeking mandamus], and is palpably
erroneous.'" Id. (alterations in original) (quoting United States
v. Horn, 29 F.3d 754, 769 (1st Cir. 1994)). At least one of the
necessary conditions for supervisory mandamus is not met here, so
we do not discuss the others.
Petitioners have made no showing that the district court
"palpably" erred. The harm that the petitioners originally
complained of was "unconstitutional overcrowding" during the
height of the COVID-19 pandemic. Savino, 453 F. Supp. 3d at 447.
Remedying overcrowding does not require releasing every detainee
on bail. Indeed, the court stated that "effectively minimiz[ing]
the concentration of people in [BCHOC]" would "protect everyone
from the impending threat of mass contagion" and therefore started
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granting bail to some detainees. Id. at 452. It properly
recognized that granting bail under these circumstances "requires
individualized determinations, on an expedited basis, and . . .
should focus first on those who are detained pretrial who have not
been charged with committing violent crimes." Id. at 454 (quoting
Comm. for Pub. Counsel Servs. v. Chief Just. of Trial Ct., 142
N.E.3d 525, 537 (Mass. 2020), aff'd as modified, 143 N.E.3d 408
(Mass. 2020)); cf. United States v. Zimny, 857 F.3d 97, 99 (1st
Cir. 2017) (discussing that, in the criminal context, the district
court makes an individualized determination as to whether the
defendant is a flight risk or danger to the community).
The district court followed this standard and the
petitioners have not shown that the district court violated this
standard. Each of the petitioners here, as the district court
knew, had committed serious, violent crimes, many of which were
felonies. Based on their criminal histories, it was reasonable to
deny bail to these petitioners because they each posed dangers to
the community and/or were flight risks. See Savino, 453 F. Supp.
3d at 451 ("Detainees with a serious criminal background might
have a tougher time demonstrating that the government could 'have
easily prevented that harm' by releasing them on bond . . . ."
(quoting Leite v. Bergeron, 911 F.3d 47, 53 (1st Cir. 2018))).
The court chose to grant other detainees bail, but not the
petitioners remaining here, after individualized determinations as
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to each bail petition. Doing so, it succeeded in decreasing the
population of detainees at BCHOC by about 45% by the beginning of
May 2020, reducing the risk of any potential harm to the detainees
remaining at BCHOC. See id. ("[A] common question . . . is whether
the government must modify the conditions of confinement . . . or
. . . release a critical mass of Detainees . . . such that . . .
those held in the facility will not face a constitutionally
violative 'substantial risk of serious harm.'" (quoting Farmer v.
Brennan, 511 U.S. 825, 847 (1994))). There is no basis for
supervisory mandamus relief.
B. Advisory Mandamus
Advisory mandamus is available in rare cases where the
standard for supervisory mandamus is not met. It is appropriate
only where there is an unsettled issue of law "of substantial
public importance," where the issue is "likely to recur," and where
"deferral of review would potentially impair the opportunity for
effective review or relief later on." United States v. Pleau, 680
F.3d 1, 4 (1st Cir. 2012) (en banc) (citing Horn, 29 F.3d at 769-
70); see also In re Justs. of Superior Ct. Dep't of Mass. Trial
Ct., 218 F.3d 11, 15 (1st Cir. 2000). These standards were not
met here.
The petitioners argue that they present two unsettled
questions of law of substantial importance warranting advisory
mandamus: (1) whether the COVID-19 pandemic is a per se exceptional
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circumstance warranting bail for all detainees regardless of
individual circumstances and (2) the bail standard applicable for
a habeas petitioner. Advisory mandamus is not warranted to decide
either question.
First, issuing a writ of advisory mandamus to determine
whether the pandemic is an exceptional circumstance is
inappropriate because the question is a factual one, not a legal
one. See Sampson v. United States, 832 F.3d 37, 42 (1st Cir. 2016)
("We typically exercise [advisory mandamus] to settle substantial
questions of law when doing so would give needed guidance to
lawyers, litigants, and lower courts." (alteration in original)
(emphasis added) (quoting Sampson v. United States, 724 F.3d 150,
159 (1st Cir. 2013))). Many contextual factors -- including, for
example, rapidly evolving scientific knowledge about COVID-19 and
how it spreads, the population density at BCHOC, and the
availability of treatments and vaccines for the virus -- affect
whether COVID-19 constitutes an exceptional circumstance
warranting bail for BCHOC detainees at any given point in time.
Next, petitioners argue that a writ of advisory mandamus
is necessary to clarify that "bail is appropriate either where a
habeas petitioner has shown likelihood of success on the merits or
where there are exceptional circumstances." But regardless of
whether the district court misspoke in its articulation of the
proper bail standard, the issue is irrelevant here for the reasons
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discussed earlier. It was reasonable for the district court to
conclude that these petitioners were unlikely to succeed on their
habeas petitions because of their criminal histories. And the
court properly recognized that reducing the detainee population at
BCHOC by granting bail to some detainees would mitigate whatever
exceptional circumstances existed due to the COVID-19 pandemic for
the remaining detainees. Petitioners would not have been admitted
to bail even under the standard they say the court should have
used, and there is no reason to exercise our discretion to grant
a petition for advisory mandamus here.
III. Conclusion
The petition for a writ of mandamus is denied as without
merit.
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