Opinion
CASE NO. C20-0490RSM-MLP
2020-04-06
Claudia Fabiola ALMEIDA, Petitioner, v. William P. BARR, Respondent.
Matt Adams, Aaron Korthuis, Yessenia Medrano, Northwest Immigrant Rights Project, Seattle, WA, for Petitioner.
Matt Adams, Aaron Korthuis, Yessenia Medrano, Northwest Immigrant Rights Project, Seattle, WA, for Petitioner.
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Before the court is Petitioner Claudia Fabiola Almeida's emergency motion for immediate relief, which the court construes as a motion for a temporary restraining order ("TRO"). (See Mot. (Dkt. # 2).) Specifically, Ms. Almeida seeks immediate release from custody in the Tacoma Northwest Detention Center ("the NWDC") due to the COVID-19 pandemic, which she alleges renders detained individuals, like herself, "vulnerable to serious health complications and or [sic] death." (See id. at 2.) Ms. Almeida originally filed her motion in the Ninth Circuit Court of Appeals as part of her 8 U.S.C. § 1252(a)(1) petition for review of the Board of Immigration Appeals' ("the Board") final order of removal. See Almeida v. Barr , No. 19-72254 (9th Cir.), Dkt. # 20 (filed March 25, 2020). The Ninth Circuit construed Ms. Almeida's emergency motion as a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and transferred her motion to this court for "prompt[ ]" consideration. See id. , Dkt. # 24 (filed March 31, 2020); (see also 9th Cir. Transfer Order (Dkt. # 1-1) at 2)). Respondent William P. Barr ("the Attorney General") opposes the motion. (See Resp. (Dkt. # 3).) The court has considered the motion, all submissions filed in support of and in opposition to the motion, the relevant portions of the record, and the applicable law. Being fully advised, the court DENIES Ms. Almeida's motion.
II. BACKGROUND
A. Ms. Almeida's Immigration Proceedings and Appeal to the Ninth Circuit
Ms. Almeida is a citizen of Mexico, who became a lawful permanent resident of the United States on January 20, 1990. (Administrative Record ("AR") at 1014.) Subsequently, she was convicted of two forgery offenses and possession of a controlled substance, methamphetamine. (Id. at 820, 1014.)
The court refers to the administrative record on file in the Ninth Circuit. See Almeida v. Barr , No. 19-72254 (9th Cir.) Dkt. # 6 (filed Sept. 24, 2019). In transferring Ms. Almeida's motion to this court, the Ninth Circuit neglected to transfer the administrative record to which the briefing on this matter refers. Nevertheless, the court takes judicial notice of the administrative record on file in the Ninth Circuit. Lee v. City of L.A. , 250 F.3d 668, 689 (9th Cir. 2001) ("[U]nder Fed. R. Evid. 201, a court may take judicial notice of ‘matters of public record.’ ").
On February 6, 2015, Ms. Almeida sought admission to the United States as lawful permanent resident. (Id. ) However, at the time of her application for admission, she was found to be in possession of 1.88 kilograms of methamphetamine concealed in her car. (Id. at 820, 823, 828-32, 1014.) She was subsequently convicted in United States District Court for smuggling goods in violation of 18 U.S.C. § 545. (Id. at 824, 1014.) The court sentenced her to 36 months' imprisonment. (Id. at 825.)
Due to her criminal record, the United States Department of Homeland Security ("DHS") initiated removal proceedings against Ms. Almeida and filed a Notice to Appear in Immigration Court. (Id. at 1012-14.) The Notice to Appear charged Ms. Almeida with three counts of removability, including (1) as a noncitizen convicted of a crime involving moral turpitude, see 8 U.S.C. § 1182(a)(2)(A)(i)(I) ; (2) as a noncitizen convicted of a controlled substance offense, see 8 U.S.C. § 1182(a)(2)(A)(i)(II) ; and (3) as a noncitizen the Attorney General has reason to believe was involved in the illicit trafficking of a controlled substance, see 8 U.S.C. § 1182(a)(2)(C)(i). (AR at 1014.)
On August 8, 2018, Ms. Almeida, through counsel, conceded that she was removable as a noncitizen convicted of a crime involving moral turpitude and a controlled substance offense, but denied that she was removable as an illicit trafficker of a controlled substance. (Id. at 141.) However, on November 7, 2018, Ms. Almeida filed a motion to amend her pleadings, arguing that she was no longer removable as a noncitizen convicted of a controlled substance offense based on the Ninth Circuit's initial 2018 decision in Lorenzo v. Sessions , 902 F.3d 930, 932 (9th Cir. 2018), opinion withdrawn on denial of reh'g sub nom. Lorenzo v. Whitaker , 913 F.3d 930 (9th Cir. 2019) (" Lorenzo II "), and opinion superseded on denial of reh'g sub nom. Lorenzo v. Whitaker , 752 F. App'x 482 (9th Cir. 2019) (" Lorenzo III "). (AR at 942-45.) The immigration judge denied Ms. Almeida's motion to withdraw her concession. (Id. at 175-77.) Ms. Almeida then sought asylum and related relief and protection from removal, as well as cancellation of removal for certain permanent residents. (Id. at 142, 166-67, 788-99, 803-04.)
On February 7, 2019, the immigration judge issued a written decision finding Ms. Almeida removable pursuant to all charges of removability and ineligible for relief and protection from removal. (Id. at 49-83.) The immigration judge denied Ms. Almeida's request for cancellation of removal as a matter of discretion and found Ms. Almeida statutorily barred from asylum and withholding of removal because her conviction for smuggled goods constitutes a particularly serious crime. (Id. at 70-74 (citing 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii) ).) The immigration judge held in the alternative that Ms. Almeida did not establish eligibility for relief and protection from removal on the merits of her claims. (Id. at 74-81.) Finally, the immigration judge denied Ms. Almeida's request for a continuance. (Id. at 81-82.)
On July 29, 2019, the Board dismissed Ms. Almeida's appeal of the immigration judge's decision. (Id. at 3-7.) First, the Board held that it was unnecessary to reach Ms. Almeida's challenge to the controlled substance ground of removability because she conceded removability as a noncitizen who committed a crime involving moral turpitude. (Id. at 3.) Further, the Board noted that the Ninth Circuit's decision in Lorenzo , on which Ms. Almeida relied to challenge her removability, was withdrawn. (Id. at 3-4 (citing Lorenzo II , 913 F.3d 930 ; Lorenzo III , 752 F. App'x 482 ).) Second, the Board agreed with the immigration judge's denial of the cancellation of removal as a matter of discretion. (Id. at 4-5.) Third, the Board upheld the immigration judge's denial of asylum and withholding of removal based on the particularly serious crime bar. (Id. at 5-7.) Finally, the Board held that the immigration judge's denial of Ms. Almeida's request for deferral of removal under the Convention Against Torture was not clearly erroneous because Ms. Almeida was never tortured in the past and her fear of harm was speculative. (Id. at 7.)
On September 3, 2019, Ms. Almeida filed a petition for review with the Ninth Circuit and a motion for a stay of removal. See Almeida v. Barr , No. 19-72254 (9th Cir.) Dkt. # 1 (filed Sept. 3, 2019). The Attorney General opposes Ms. Almeida's petition. See id. , Dkt. # 9 (filed Oct. 29, 2019). On November 5, 2019, Ms. Almeida filed a motion to hold her petition in abeyance while she applied for U and T nonimmigrant visas. See id. , Dkt. # 11. The Attorney General also opposes the abeyance motion. See id. , Dkt. # 12. Ms. Almeida's petition in the Ninth Circuit is presently in the Ninth Circuit's mediation program. (See Mot. at 4-5; Resp. at 6.) She is currently in DHS custody and detained at the NWDC pursuant to 8 U.S.C. § 1225(b)(2)(A). She has been detained at the NWDC since August 16, 2018. (Mot. at 4.)
B. Ms. Almeida's Emergency Motion for Immediate Release
On March 23, 2020, Ms. Almeida filed her present emergency motion for release from custody in the Ninth Circuit. (See Mot.) The Ninth Circuit panel assigned to Ms. Almeida's appeal construed Ms. Almeida's motion as a petition for a writ of habeas corpus under 28 U.S.C. § 2241 and transferred it to this court. (See Transfer Order at 2.)
The United States Supreme Court has not yet resolved the question of whether a conditions of confinement claim, such as Ms. Almeida's claim here, may be brought in the form of a petition for a writ of habeas corpus. See Bell v. Wolfish , 441 U.S. 520, 526 n.6, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ("Thus, we leave to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself."). The majority of federal circuit courts allow detainees to challenge their conditions of confinement via a habeas petition. See Aamer v. Obama , 742 F.3d 1023, 1036-37 (D.C. Cir. 2014) (citing United States v. DeLeon , 444 F.3d 41, 59 (1st Cir. 2006) ; Thompson v. Choinski , 525 F.3d 205, 209 (2d Cir. 2008) ; Woodall v. Fed. Bureau of Prisons , 432 F.3d 235, 242 & n.5 (3d Cir. 2005) ; McNair v. McCune , 527 F.2d 874, 875 (4th Cir. 1975) ; Adams v. Bradshaw , 644 F.3d 481, 482 83 (6th Cir. 2011) ). The Ninth Circuit has not yet decided the issue. See Nettles v. Grounds , 830 F.3d 922, 931 (9th Cir. 2016) (holding that if a state prisoner's claim "would not necessarily spell speedier release," it does not lie at "the core of habeas corpus," and must be brought, if at all, under 42 U.S.C. § 1983 ; but explicitly stating that the court would not address how this standard "applies to relief sought by prisoners in federal custody").
Nevertheless, the three-judge panel assigned to Ms. Almeida's appeal instructed this court to construe Ms. Almeida's motion, in which she challenges her detention based on alleged conditions at the NWDC that increase the risk of a COVID-19 infection, as a petition for habeas corpus under 28 U.S.C. § 2241. (See Transfer Order at 2.) Although the Ninth Circuit's transfer order holding that this district has jurisdiction to hear this motion as a habeas petition is unpublished and therefore does not definitively resolve this unsettled area of law, this court will follow the Ninth Circuit's direction in this case and not consider the issue further.
In her present motion, Ms. Almeida, who is 40 years old, asserts that her underlying health conditions, including obesity, unspecified, and impaired glucose tolerance (prediabetes ) elevate her risk of becoming severely ill if she contracts COVID-19. (See Mot. at 5 (citing Att. E ).) She provides her NWDC patient summary as evidence of these underlying health conditions. (See id. )
In transferring this case to the Western District of Washington, the Ninth Circuit neglected to transfer the attachments to Ms. Almeida's motion. (See Mot.) However, the court has reviewed the attachments that Ms. Almeida filed with her motion in the Ninth Circuit, see Almeida v. Barr , No. 19-72254 (9th Cir.) Dkt. # 20 (filed March 25, 2020), and takes judicial notice of them, see supra n.1 (citing Lee , 250 F.3d at 689 ).
To bolster her motion, Ms. Almeida also relies on a letter from two physicians, Dr. Scott A. Allen, MD, FACP, and Dr. Josiah Rich, MS, MPH, who both serve as medical subject matter experts for DHS's Office of Civil Rights and Civil Liberties ("CRCL"), which the physicians sent to the Chairpersons and Ranking Members of the House Committee on Homeland Security, the House Committee on Oversight and Reform, and the Senate Committee on Homeland Security and Governmental Affairs. (Id. at 7-8 (citing Att. D ).) In their letter, the physicians state that they are "gravely concerned about the need to implement immediate and effective mitigation strategies to slow the spread of the coronavirus and resulting infections of COVID-19." (Id. , Att. D at 2.) The physicians note that there have been clusters of COVID-19 identified in "congregant settings" in Chinese and Iranian prisons and that an inmate and officer have reportedly tested positive for the virus at New York's Rikers Island. (Id. ) They also note recent reporting indicating that immigrant detainees at ICE's Aurora facility are in isolation for possible exposure to coronavirus that a member of ICE's medical staff at a private detention center in New Jersey has tested positive for coronavirus. (Id. ) The physicians do not provide any statements or information concerning conditions at the NWDC. (See generally id. )
See supra n.3.
C. Conditions at the NWDC & Additional Safety Precautions
In his response to Ms. Almeida's motion, the Attorney General submits the declaration of Drew H. Bostock, who is the Officer in Charge ("OIC") with DHS, ICE, Enforcement and Removal Operations ("ERO") in the Seattle Field Office ("ERO Seattle"). (Bostock Decl. (Dkt. # 3) ¶ 1.) Although Ms. Almeida challenges the sufficiency of measures implemented at the NWDC and described in OIC Bostock's declaration, she does not challenge the accuracy of his declaration. (See Reply (Dkt. # 4) at 8-9).) OIC Bostock attests to the following facts concerning the NWDC, its present conditions, and precautions implemented at the facility to prevent an outbreak of COVID-19:
The Declaration of Drew H. Bostock is attached to the Attorney General's response to Ms. Almeida's motion. (See Resp. (attaching Bostock Decl.).)
The NWDC is a private detention center run by The GEO Group, Inc. ("GEO"). (Bostock Decl. ¶ 4.) It has the capacity to house 1,575 detainees and historically operates near capacity. (Id. ¶ 6.) However, presently, the NWDC has only 838 detainees, which represents only 53.2% of its typical number of detainees. (Id. ) ICE last transferred detainees from the southern border to the NWDC on March 5, 2020, and does not anticipate any additional transfers from that area in the reasonably foreseeable future. (Id. ¶ 7.)
The NWDC is also referred to as the Northwest ICE Processing Center ("NWIPC"). (See Bostock Decl. ¶ 1.)
On March 18, 2020, ICE announced that due to the ongoing COVID-19 pandemic, it would adjust enforcement to focus on public safety risks and individuals subject to mandatory detention based on criminal grounds. (Id. ¶ 8.) For individuals who do fall within these categories, ICE is currently exercising its discretion to delay enforcement actions until after the COVID-19 crisis or to use alternatives to detention, where appropriate. (Id. ) Due to this change, ICE expects only a limited number of incoming detainees at the NWDC during the COVID-19 crisis—the majority of whom will be aliens who represent public safety risks and are subject to mandatory custody provisions. (Id. ¶ 9.)
As a response to the COVID-19 crisis, the ICE Health Services Corps ("IHSC"), which oversees medical care at the NWDC, implemented certain safety protocols. (Id. ¶ 11.) On March 26, 2020, IHSC implemented temperature and prescreening checks for all new detainees arriving at the NWDC prior to entrance into the facility. (Id. ) Regular procedures at the NWDC require that all incoming detainees' personal property and valuable are inventories and stored. (Id. ¶ 12.) Further, all incoming detainees are afforded the opportunity to shower and provided with clean clothing, bedding, towels, and personal hygiene items. (Id. )
GEO provides all detainees with an instructional flyer outlining proper hand washing hygiene and the importance of covering coughs. (Id. ¶ 13.) In response to the COVID-19 pandemic, additional posters in multiple languages concerning hand washing hygiene and covering coughs have been placed in each housing unit at the NWDC. (Id. )
As of March 20, 2020, all incoming detainees who do not meet current IHSC protocol requirements for isolation monitoring due to possible COVID-19 symptoms, exposure, or testing, are placed in two separate housing units for 14 days of monitoring for signs or symptoms of COVID-19. (Id. ¶ 14.) Detainees in the 14-day observation period are not allowed to commingle with other detainees in common areas during the 14-day period. (Id. ) Detainees admitted on the same date and who are determined to be at the same risk classification may be housed in the same cell for the 14-day observation period. (Id. ) Detainees admitted on separate dates and those at different risk classification levels are not housed together. (Id. ) If the 14-day period passes without any detainees in a cell displaying signs or symptoms of COVID-19, the detainees are released to other housing units in the facility. (Id. ) A separate remote medical unit has been established to monitor detainees undergoing the 14-day observation. (Id. )
In response to COVID-19, GEO has enhanced its cleaning in all units, food preparation and service areas, intake rooms and other work centers with increased emphasis on cleaning contact areas with disinfectant cleaners approved as effective against COVID-19. (Id. ¶ 16.) GEO makes soap and cleaning supplies available to detainees in all housing units and work areas at the NWDC and has increased the amount of soap, disinfectant cleaner, and food service sanitizer in every housing unit in response to COVID-19. (Id. ¶ 17.) GEO also holds weekly town hall meetings with detainees in every housing unit to educate detainees on hand washing and covering coughs. (Id. ¶ 18.) GEO instructs detainees to clean tables and horizontal surfaces before each meal and to disinfect such surfaces after each meal. (Id. ) GEO also instructs detainees to clean countertops, microwave handles, door handles, exercise equipment, electronic tablets, telephones, and any high-risk contact areas with disinfectant cleaner. (Id. )
On March 13, 2020, ICE temporarily suspended social visitation at the NWDC, and other detention facilities, to prevent the spread of COVID-19, and cancelled all tours of the NWDC. (Id. ¶¶ 19-20.) GEO screens all contractors, vendors, attorneys, and court visitors through a questionnaire that covers whether the individual is currently experiencing any possible COVID-19 symptoms and recent travel history and prohibits entry to anyone who positively reports symptoms or possible exposure to COVID-19. (Id. ¶ 21.) Visitors are limited to noncontact visits unless a contact visit is absolutely necessary and has been approved by the OIC or Assistant OIC. (Id. ¶ 22.) If an attorney's request for a contact visit is approved, the attorney must wear personal protective equipment ("PPE"), including a mask. (Id. ) In addition, ICE has implemented a daily duty officer to facilitate unmonitored attorney-client phone calls from each housing unit so that detainees do not have to move throughout the facility. (Id. )
ICE and GEO are collaborating on a process to implement temperature checks of all employees and staff for GEO, ICE, and Executive Office for Immigration Review ("EOIR") at the NWDC starting on March 27, 2020. (Id. ¶ 24.) ICE and GEO employees are instructed to stay home if they are sick, experiencing any possible COVID-19 symptoms, or have been in close contact with someone diagnosed with COVID-19. (Id. ¶ 25.) GEO is voluntarily notifying ICE if any of its employees test positive or are diagnosed with COVID-19. (Id. ) As of March 27, 2020, no ICE or GEO employee or staff at the NWDC had reported testing positive for COVID-19. (Id. ) In addition, ICE instituted a telework program for its employees at the NWDC to minimize the number of employees present at the facility. (Id. ¶ 26.)
Finally, in late March 2020, ERO Tacoma began conducting a discretionary review of certain detainees' cases identified IHSC, based on their medical records, as detainees who meet the current CDC criteria as at-risk due to COVID-19. (Id. ¶ 31.) The review requires that IHSC identify detainees who fall within an at-risk category and who are not subject to various mandatory custody provisions based on their immigration and criminal histories. (Id. ) If an identified detainee is not subject to mandatory custody, ERO Tacoma determines whether the detainee is otherwise a danger to the public and/or a flight risk such that release is not appropriate. (Id. ) As a result of this labor-intensive review, by March 27, 2020, ICE had already released six detainees from custody. (Id. ¶¶ 31-32.)
III. ANALYSIS
A. Standards for a TRO
The standard for issuing a TRO is the same as the standard for issuing a preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co. , 434 U.S. 1345, 1347 n.2, 98 S.Ct. 359, 54 L.Ed.2d 439 (1977). A TRO is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "The proper legal standard for preliminary injunctive relief requires a party to demonstrate (1) ‘that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.’ " Stormans, Inc. v. Selecky , 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter , 555 U.S. at 20, 129 S.Ct. 365 ).
As an alternative to this test, a preliminary injunction is appropriate if "serious questions going to the merits were raised and the balance of the hardships tips sharply" in the moving party's favor, thereby allowing preservation of the status quo when complex legal questions require further inspection or deliberation. All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1134-35 (9th Cir. 2011). However, the "serious questions" approach supports a court's entry of a TRO only so long as the moving party also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest. Id . at 1135. The moving party bears the burden of persuasion and must make a clear showing that he is entitled to such relief. Winter , 555 U.S. at 22, 129 S.Ct. 365.
B. Ms. Almeida's Motion
The court concludes that Ms. Almeida has not made a clear showing that she is entitled to the extraordinary remedy that she requests.
1. Likelihood of Success on the Merits
To obtain a TRO, Ms. Almeida must make a clear showing that she is likely to succeed on the merits or, alternatively, has raised serious questions going to the merits of her habeas petition on Fifth Amendment grounds. To succeed on her habeas petition, Ms. Almeida must show that she is "in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2241. Ms. Almeida argues that her detention violates the Fifth Amendment's Due Process Clause because her detention "gravely heightens her risk of contracting COVID-19 due to the congregate carceral setting," and her "underlying health issues make her particularly vulnerable to severe illness." (Mot. at 5, 8.) For the reasons stated below, the court concludes that Ms. Almeida fails to make a clear showing that she is likely to succeed on the merits of her claim or that she has raised serious questions going to the merits of her claim.
When the government detains a person pursuant to an immigration violation, the person is a civil detainee. See Zadvydas v. Davis , 533 U.S. 678, 690, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). To evaluate the constitutionality of civil detention conditions under the Fifth Amendment, a district court must determine whether those conditions "amount to punishment of the detainee." Bell v. Wolfish , 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ; see also Kingsley v. Hendrickson , 576 U.S. 389, 135 S. Ct. 2466, 2473-74, 192 L.Ed.2d 416 (2015). Punishment may be shown through an express intent to punish or a condition that is not "reasonably related to a legitimate governmental objective." Bell , 441 U.S. at 539, 99 S.Ct. 1861 ; see also Kingsley , 135 S. Ct. at 2473-74 (clarifying that "a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose"). In addition, "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney v. Winnebago Cty. Dep't of Soc. Servs. , 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Thus, for example, the government violates the Due Process Clause if it fails to provide civil detainees with "food, clothing, shelter, medical care, and reasonable safety." Id. at 200, 109 S.Ct. 998. In the context of a Due Process Clause failure-to-protect claim, the Ninth Circuit declared that "the defendant's conduct must be objectively unreasonable, a test that will necessarily ‘turn on the facts and circumstances of each particular case.’ " Castro v. Cty. of L.A. , 833 F.3d 1060, 1071 (9th Cir. 2016) (quoting Kingsley , 135 S. Ct. at 2473 ) (alterations and internal quotation marks omitted).
In DeShaney , the Supreme Court analyzed the petitioners' rights under the Fourteenth Amendment. See 489 U.S. at 194-95, 109 S.Ct. 998. Fifth Amendment due process claims and Fourteenth Amendment due process claims are analyzed in the same way. See Paul v. Davis , 424 U.S. 693, 702 n.3, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976).
"[T]he Supreme Court has treated medical care claims substantially the same as other conditions of confinement violations including failure-to-protect claims." Gordon v. Cty. of Orange , 888 F.3d 1118, 1124 (9th Cir. 2018), cert. denied sub nom. Cty. of Orange, Cal. v. Gordon , ––– U.S. ––––, 139 S. Ct. 794, 202 L. Ed. 2d 571 (2019).
Ms. Almeida does not present allegations or evidence to show an "express intent" to punish her. (See generally Mot.) Moreover, preventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective. See Jennings v. Rodriguez , ––– U.S. ––––, 138 S. Ct. 830, 836, 200 L.Ed.2d 122 (2018) ; Demore v. Kim , 538 U.S. 510, 520-22, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) ; Zadvydas , 533 U.S. at 690-91, 121 S.Ct. 2491. Ms. Almeida fails to present evidence establishing that her current confinement is not reasonably related to, or is excessive in relation to, that objective. Therefore, Ms. Almeida may succeed on her Fifth Amendment claim only if she shows that the Attorney General has failed to provide for her reasonable safety. See DeShaney , 489 U.S. at 200, 109 S.Ct. 998.
As of the date of this order, there is no evidence of a COVID-19 case among any detainees or staff at the NWDC. Nevertheless, Ms. Almeida contends that her continued detention at NWDC "gravely heightens her risk of contracting COVID-19" due to the nature of the virus at issue, its endemic presence in the surrounding community, and "the congregate carceral" nature of detention itself. (Mot. at 5-6.) She also contends that her "underlying health issues make her particularly vulnerable to severe illness due to COVID-19." (Id. at 5.) Yet, Ms. Almeida never addresses the actual conditions at the NWDC or the measures that facility has implemented to provide for detainees' safety during the present COVID-19 pandemic. Indeed, she submits no evidence or testimony concerning her actual experience at the NWDC and instead relies on generalized statements from Drs. Allen and Rich about the potential risks to immigrant detainees generally due to the COVID-19 pandemic. (See Mot. Att. D.) The court does not dismiss these concerns but notes that nothing in Drs. Allen and Rich's letter addresses the actual conditions at the NWDC. (See generally id. ) Instead, Drs. Allen and Rich point to reported conditions at prisons in China and Iran, the presence of COVID-19 at New York's Rikers Island, the possible presence of COVID-19 among immigrant detainees at ICE's Aurora facility, and a reported positive COVID-19 test for a member of ICE's medical staff at a detention center in New Jersey. (See id. at 3.) None of this is relevant to the circumstances before the court, which involve the conditions facing Ms. Almeida at the NWDC.
Under the Fifth Amendment, the Attorney General is not required to eliminate any risk to Ms. Almeida. Instead, the Attorney General is only required to provide for her "reasonable safety." See DeShaney , 489 U.S. at 200, 109 S.Ct. 998. First, the court notes that although the NWDC has a capacity to house 1,575 detainees, the detainee population has been reduced to 838 individuals—representing approximately only 53.2% of the number of detainees ordinarily housed there. (Bostock Dec. ¶ 6.) These figures suggest that the NWDC is not currently overcrowded; indeed, they suggest the opposite. Further, there is substantial evidence before the court of robust measures at the NWDC to prevent an outbreak of COVID-19, to contain one should it occur, and generally to provide for the safety of the detainees housed there during the pandemic. As detailed above, those measures include (1) policies limiting transfers of detainees from the southern border of the United States (id. ¶ 7); (2) exercising discretion to delay certain enforcement actions that limit the number of new detainees arriving the NWDC (id. ¶¶ 8-9); (3) implementing temperature and prescreening checks on all new detainees prior to their entrance into the NWDC (id. ¶ 11); (4) providing additional information in multiple languages and conducting weekly town hall meetings with detainees concerning hand washing hygiene and the importance of covering a cough (id. ¶¶ 13, 18); (5) providing for the segregation of incoming detainees for 14 days of monitoring for signs or symptoms of COVID-19 (id. ¶ 14); (6) enhanced cleaning measures (id. ¶ 16); (7) providing additional soap, hand sanitizer, and cleaning supplies to both detainees and employees (id. ¶¶ 17, 23); (8) instituting temperature checks for employees and instructing employees to stay home if they are symptomatic or have been exposed to someone diagnosed with COVID-19 (id. ¶¶ 24-25); and (9) implementing a telework program under which only half of ERO employees are present at the NWDC at any given time (id. ¶ 26). In addition, the court notes the newly implemented review process under which at-risk detainees are assessed for release and under which six detainees have already been released. (Id. ¶¶ 31-32.)
Ms. Almeida argues in her reply memorandum that the measures implemented at the NWDC are insufficient. (See Reply at 8-9.) Significantly, however, the measures implemented by the NWDC generally track the recommendations of DHS's medical subject matter experts, Drs. Allen and Rich, upon whom Ms. Almeida relies. (See Mot. Att. D at 5 (recommending "[p]rocesses for screening, testing, isolation, and quarantine," "limiting transport and transfer of immigrant detainees" and "implementing alternatives to detention to facilitate as much social distancing as possible"). Although Drs. Allen and Rich may recommend "releasing all detainees in high risk medical groups" (id. ), the Attorney General cannot do so without first assessing whether such release is otherwise authorized by law and in the public's interest in any given case. Indeed, the Attorney General is presently engaged in such a case-by-case analysis and has begun to release high-risk detainees on this basis. (See Bostock Decl. ¶¶ 31-32.) Given the evidence of the extensive measures that the NWDC has implemented, and the lack of any contrary evidence concerning actual conditions at the facility, the court cannot conclude that Ms. Almeida has made a clear showing that she is likely to prevail on her Fifth Amendment claim or that she has raised serious questions going to the merits of her claim.
Finally, the court understands that several other district courts have granted TROs in favor of immigration detainees on Fifth Amendment grounds due to conditions at those facilities. See Castillo et al. v. Barr et al. , 449 F. Supp. 3d 915, 917–18 (C.D. Cal. Mar. 27, 2020) ; Basank v. Decker , No. 20 CIV. 2518 (AT), 449 F. Supp. 3d 205, 216 (S.D.N.Y. Mar. 26, 2020) ; Coronel v. Decker , 449 F. Supp. 3d 274, 290 (S.D.N.Y. Mar. 27, 2020). However, the facts in those cases diverge from those before this court in meaningful ways. See Basank , 449 F. Supp. 3d at 211 ("Each of the jails where a Petitioner is being housed has reported confirmed cases of COVID-19."); Coronel , 449 F. Supp. 3d at 283 (stating that, unlike in this case, "the record demonstrates that ICE has not taken any action to address the particular risks COVID-19 poses to high-risk individuals"); Castillo , 449 F. Supp. 3d at 918 (stating that "[o]ver the years, and as recently as 2018, DHS's Office of the Inspector General had, repeatedly, found that significant and various health and safety risks existed at Adelanto"), at 918–19 (stating that the plaintiff detainees do not have access to hand sanitizer). It would be improper for this court to rely on conditions at other detention facilities to conclude that the conditions at the NWDC represent a Fifth Amendment violation.
2. Likelihood of Irreparable Harm
The court also concludes that Ms. Almeida has not meet her burden to show that "irreparable injury is likely in the absence of an injunction." Winter , 555 U.S. at 22, 129 S.Ct. 365. As discussed above, given the measures the Attorney General is currently taking, the court cannot conclude either that the spread of COVID-19 inside NWDC is inevitable, or that the Attorney General will be unable to contain it if it occurs. No one can entirely guarantee safety in the midst of a global pandemic. However, the standard under which the court evaluates Ms. Almeida's TRO motion is not guaranteed safety—an impossible standard to meet no matter the circumstances—but rather a likelihood of irreparable harm. The evidence before the court does not meet that standard.
Therefore, the court DENIES Ms. Almeida's motion for a TRO.
Having concluded that Ms. Almeida fails to meet the first two prongs of the TRO standard, the court finds it unnecessary to address the third and fourth prongs at this time.
IV. CONCLUSION
For the foregoing reasons, the court DENIES Ms. Almeida's motion for a TRO (Dkt. # 2).