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applying Due Process standards for pretrial detainees to a citizen of Turkey detained by ICE
Summary of this case from Rivas-Lemus v. Henrico Cnty.Opinion
Civil No. 1:20-cv-00433 (RDA-JFA)
05-08-2020
Ejder ASLANTURK, Petitioner, v. Russell HOTT, et al., Respondents.
Mark Alastair Stevens, Murray Osorio PLLC, Fairfax, VA, for Petitioner.
Mark Alastair Stevens, Murray Osorio PLLC, Fairfax, VA, for Petitioner.
ORDER
Rossie D. Alston, Jr., United States District Judge
This matter comes before the Court on Petitioner Ejder Aslanturk's ("Petitioner") Motion for Temporary Restraining Order and/or Preliminary Injunction ("TRO/Preliminary Injunction Motion") (Dkt. 5). Considering Petitioner's Habeas Petition (Dkt. 1); the TRO/Preliminary Injunction Motion; Petitioner's Memorandum in Support of the TRO/Preliminary Injunction Motion (Dkt. 6) and the documents attached thereto; the Government's Memorandum in Opposition (Dkt. 7) and the documents attached thereto; and Petitioner's Reply (Dkt. 9) and the documents attached thereto; for the following reasons, it is hereby ORDERED that Petitioner's TRO/Preliminary Injunction Motion (Dkt. 5) is DENIED.
I. BACKGROUND
A. Factual Background
i. Petitioner's Background
The factual background of Petitioner's circumstances is not insignificant and, in many aspects, drives the analysis of this case. Petitioner is a citizen of Turkey who on March 5, 2011, originally came to the United States on a tourist visa, which granted him permission to remain in the United States until September 4, 2011. Dkt. Nos. 7, 4; Dkt. 7-1, ¶ 5; 6-9, 2. In the years prior to coming to the United States, and while living in Turkey, Petitioner owned a large construction company, started a "pro-peace newspaper ... [which] publiciz[ed] the view of the Democratic Leftist Party[,]" and "ran for mayor as a Democratic Leftist Party candidate on a pro-peace platform." Dkt. 1, ¶¶ 7-10. In the year that he ran for mayor, Petitioner was required to "close his newspaper after it was shot at." Id. at ¶ 9.
On October 21, 2011, Petitioner was the subject of an INTERPOL Red Notice, which was triggered by the Turkish government's issuance of a warrant for Petitioner's arrest. Dkt. Nos. 7, 3; 71,¶ 9. Petitioner "is wanted in Turkey to serve a seven-year and six-month sentence pursuant to a 2007 conviction for forgery and issuing false documents." Dkt. 7-1, ¶ 9. While in Turkey, "Petitioner was convicted of filing fraudulent documents related to a construction project, which resulted in the loss of approximately $200,000 in government funds." Id. at 19; see also Dkt. 1, ¶ 12.
" ‘A Red Notice is a request to locate and provisionally arrest an individual pending extradition. It is issued by [Interpol's] General Secretariat at the request of a member country or an international tribunal based on a valid national arrest warrant." Guan v. Barr , 925 F.3d 1022, 1030 n. 2 (9th Cir. 2019) (quoting Interpol, Red Notices, https://www.interpol.int/INTERPOL-expertise/Notices/Red-Notices). "Although a Red Notice ‘is not an international arrest warrant,’ it ‘is the closest instrument to an international arrest warrant in use today.’ " Id.
ii. Petitioner's Immigration Proceedings
Although his tourist visa expired on September 4, 2011, on May 4, 2012, while still within the United States, Petitioner submitted an application to the United States Citizenship and Immigration Services ("USCIS") to become a "Lawful Permanent Resident." Dkt. 7, 4. During the pendency of his application for Lawful Permanent Resident status, Petitioner also applied for an advance parole document that would grant him permission to travel internationally and return to the United States. Dkt. Nos. 7, 4; 1, ¶ 15; 7-1, ¶ 7; 6-9, 2. On September 1, 2012, the USCIS approved Petitioner's advanced parole application. Dkt. Nos. 7, 4; 7-1, ¶ 7. Accordingly, on May 9, 2013, Petitioner "travelled abroad and presented himself after arrival from a cruise ship for admission to the United States at Key West, Florida[.]" Dkt. 7, 3. There, Petitioner was "paroled into the United States ... to resume his application for adjustment of status." Dkt. 6-9, 2.
On July 5, 2017, the USCIS denied Petitioner's application to become a Lawful Permanent Resident because Petitioner "did not provide sufficient documents to establish that [his] arrest in Turkey was dismissed." Id. at 2-3. Petitioner then requested that USCIS "reopen and reconsider" its decision on his application. Id. at 3. On April 18, 2018, USCIS did so and requested additional evidence to establish that Petitioner's case in Turkey was dismissed, as Petitioner had claimed. Id. However, on December 6, 2018, USCIS ultimately denied Petitioner's application for adjustment to Lawful Permanent Resident status. Dkt. Nos. 6-9, 3; 7, 3; 7-1, ¶ 8.
On January 15, 2019, upon the direction of the United States Immigration and Customs Enforcement agency ("ICE"), Petitioner appeared at an ICE office located in Fairfax, Virginia. Dkt. Nos. 7, 3; 7-1, ¶ 10. There, he was arrested by ICE officers pursuant to an administrative arrest warrant. Id. Three days later, ICE officers served Petitioner with a Notice to Appear, Form I-862, which "charged Petitioner with being removable from the United States under 8 U.S.C. § 1182(7)(A)(i)(I) [INA § 212(a)(7)(A)(i)(I) ] for being an ‘intending immigrant but without an approved visa or other approval to being in the United States as an immigrant.’ " Dkt. Nos. 6-9, 3; 7, 3. Accordingly, pending his removal proceedings, Petitioner was detained at the Caroline Detention Facility in Bowling Green, Virginia, where he still remains. Dkt. Nos. 7, 3; 7-1, ¶ 11.
On February 27, 2019, Petitioner appeared before the Arlington Immigration Court in Arlington, Virginia ("Immigration Court"). Dkt. 7, 3. Petitioner was represented by counsel and through counsel, he conceded his removability and again applied for the adjustment of his status to Lawful Permanent Resident, which included "an application to waive any criminal grounds of inadmissibility." Id. The Immigration Court then set the matter for a hearing on March 26, 2019, regarding Petitioner's application for the adjustment of his status. Id. ; 7-1, ¶ 13. Accordingly, Petitioner again appeared before the Immigration Court on March 26, 2019, for such a hearing. Dkt. Nos. 7, 3-4; 7-1, ¶ 14.
Following the hearing, on May 8, 2019, the Immigration Court denied Petitioner's application for the adjustment of his status to Lawful Permanent Resident. Dkt. Nos. 6-9, 3; 7, 4; Dkt. 7-1, ¶ 15. The Immigration Court also set the matter for a hearing on Petitioner's applications for asylum, withholding, and protection under the Convention Against Torture. Dkt. Nos. 6-9, 20; 7-1, ¶ 15.
On May 21, 2019, Petitioner appeared with counsel before the Immigration Court for his first hearing concerning his applications for asylum, withholding, and protection under the Convention Against Torture. Dkt. 7-1, ¶ 16. That day, the hearing adjudicating Petitioner's applications under the Convention Against Torture commenced, but the matter was continued due to the amount of time that the proceedings required. Id. On July 16, 2019, that court continued to hear the merits of the proceedings, Id. at ¶ 18. The remainder of the evidence was heard that day, and the Immigration Court took the matter under advisement to issue a written decision. Id.
On October 25, 2019, the Immigration Court issued its written decision, which denied Petitioner's applications for removal and deferral. Dkt. 6-10, 4. The Immigration Court further ordered that Petitioner's "application for asylum shall be deemed frivolous, and [that Petitioner] shall be permanently ineligible for any future benefits under the INA, pursuant to INA § 208(d)(6) and 8 C.F.R. § 1208.20." Dkt. 6-10, 4, 20. The Immigration Court further ordered that Petitioner be removed to Turkey. Id. at 20.
On November 22, 2019, Petitioner appealed the findings of the Immigration Court to the Board of Immigration Appeals ("BIA"). Dkt. Nos. 1, ¶ 21; 7, 4. The BIA issued a briefing schedule requiring both parties to file their briefs on February 4, 2020. Dkt. 7, 4. The parties did so. Id. The appeal before the BIA remains pending. Id. ; Dkt. 1, ¶ 21.
Since Petitioner's removal proceedings have been pending, he has twice requested that ICE release him from immigration custody on parole – first on January 25, 2019, and a second time on April 2, 2020. Dkt. 7, 4. Both requests were denied. Id.
After Petitioner submitted to ICE his April 2, 2020, request for release, on April 4, 2020, ICE ordered all its filed offices "to identify detainees at a higher risk for complications from COVID-19 and to consider whether continued detention remained appropriate." Id. at 5. Petitioner was so identified. Id. Accordingly, ICE considered not only Petitioner's parole request, but also "performed the required reassessment of Petitioner's custody status as required by the agency's April 4, [2020,] order, taking the COVID-19 pandemic and Petitioner's medical history into account as [ ] factor[s] in those considerations." Id. ICE apparently also considered that "Petitioner is wanted by another sovereign nation to serve a significant criminal sentence and that the Immigration [Court] concluded that Petitioner lied to the court." Id. Taking these considerations into account, on April 17, 2020, ICE denied Petitioner's April 2, 2020, request for release.
iii. COVID-19
According to the Centers for Disease Control and Prevention ("CDC"), "Coronavirus (COVID-19) is an illness caused by a virus that can spread from person to person." One "can become infected from respiratory droplets when an infected person coughs, sneezes, or talks." People "may also be able to [contract the virus] by touching a surface or object that has the virus on it, and then by touching [their] mouth, nose, or eyes." Because at present, there is no vaccine to protect against COVID-19, the CDC advises that the "best way to protect [one]self is to avoid being exposed to the virus that causes COVID-19." The CDC further counsels that good preventative measures include (1) avoiding close contact with others; (2) wearing a face mask; (3) cleaning and disinfecting frequently touched surfaces; and (4) frequent hand washing with soap and water for a minimum of 20 seconds. The CDC has also indicated that while everyone is at risk of contracting the virus, "[o]der adults and people of any age who have serious underlying medical conditions may be a higher risk for more severe illness."
On March 11, 2020, the World Health Organization declared COVID-19 a pandemic. Jaime Ducharme, World Health Organization Declares COVID-19 a ‘Pandemic. ’ Here's What That Means , TIME MAGAZINE, Mar. 11, 2020, https://time.com/5791661/who-coronavirus-pandemic-declaration/, (last visited May 5, 2020).
"Since the onset of reports 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." Dkt. 7-2. On January 22, 2020, the ICE Health Services Corps ("IHSCS"), who provides "direct medical, dental, and mental health patient care" to ICE detainees, first began providing guidance to its field staff. Id. at ¶ 7. IHSCS continues to update such staff with "guidance to remain consistent with CDC guidelines." Id.
There is no question that this Pandemic has presented health challenges throughout the world. Along with these international health challenges, the challenges facing those deemed most vulnerable in our institutions have created compelling questions of both constitutional and humanistic dimension.
Turning to the specifics of Petitioner's circumstances, the record indicates that the Caroline Detention Facility, where Petitioner is currently being held, is presently operating at approximately 60% capacity. Dkt. 7-2 , ¶¶ 3, 4. The Caroline Detention Facility has medical staff on site seven days each week between the hours of 5:00 a.m. and 11:30 p.m., and a physician is on call seven days of the week, 24 hours of the day. Id. at ¶ 5. "Detainees have access to [a] sick call daily and 24/7 access to Urgent Care." Id.
Since the COVID-19 outbreak, medical staff at the Caroline Detention Facility have "regularly" communicated with the Rappahannock Area Health District of the Virginia Department of Health, which is the health district in which the Caroline Detention Facility is located, concerning "screening and response measures." Id. at ¶ 9. The Virginia Department of Health has also made COVID-19 testing kits available to the Caroline Detention Facility "as the need arises." Id.
In response to the COVID-19 outbreak, the Caroline Detention Facility has also provided detainees with disinfectants to "clean their living areas, and with soap to promote frequent hand-hygiene." Id. at ¶ 10. The detention facility has also "increased the cleaning and disinfecting of communal spaces" such as the kitchen, communal bathrooms, and phone booths. Id. Professional visits have been limited to "noncontact" and social visitations have been suspended. Id. at ¶ 11. Upon their entrance into the detention facility, staff members are screened for symptoms, exposure, and travel. Id. at ¶ 12. Those staff members whose temperature exceeds 100.3 degrees Fahrenheit are denied entrance. Id. Staff members are required to wear masks while in the detention facility, id. , and as of April 23, 2020, all detainees have been provided with and are encouraged to wear masks any time they leave their cell. Id. at ¶ 14. Detainees have received COVID-19 prevention education both orally and in writing. Id. They have been encouraged to "socially distance themselves from one another, regularly wash their hands, and not touch their faces." Id. at ¶ 16. All incoming detainees are "cohorted or isolated during their first 14 days of arrival. Cohorting is an infection-prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic." Id. at ¶ 17.
On April 28, 2020, IHSCS reported that four detainees at the Caroline Detention Facility had been suspected of having COVID-19. Id at ¶ 20. Ultimately, two of the detainees tested positive for the COVID-19 virus and two of the suspected individuals tested negative. Id. Petitioner was housed in the same four-person cell as an individual who was suspected of being infected with the virus. Id. However, that individual tested negative for the COVID-19 virus. Id. When the person in Petitioner's cell was suspected of having contracted the virus, each of the individuals in that cell were "moved into a single cell" and were placed on cohort status. Id. The detainees who tested positive were immediately isolated upon their entrance to the facility and have continued to remain isolated. Id. Pursuant to ICE's screening and intake protocols, it appears that "none of the detainees in the general population have been exposed to the detainees who were tested positive." Dkt. 7,7.
B. Procedural Background
On April 20, 2020, Petitioner filed this action styled as a Habeas Petition in this Court. Petitioner's Habeas Petition raised the following four claims. Dkt. 1. First, that the length of his detention without a bond hearing violated his due process rights under the Fifth Amendment to the United States Constitution ("Claim One"). Id , at ¶¶ 57-68. Second, that Respondents are violating Petitioner's substantive due process rights under the Fifth Amendment because Respondents are housing Petitioner in "life-threatening conditions that do not adequately protect [Petitioner] from COVID-19" ("Claim Two"). Id. at ¶¶ 70-71. Petitioner claims that these conditions "lack a reasonable relationship to any legitimate governmental purpose and are excessive in relation to the purpose of confinement ...." Id. at ¶ 72. Third, Petitioner maintains that Respondents have also violated his substantive due process rights under the Fifth Amendment because they have submitted him to punitive conditions of confinement and acted with deliberate indifference to his health and safety ("Claim Three"). Id. at 73-76. Fourth and finally, Petitioner posits that Respondents have violated the Rehabilitation Act because they have failed to reasonably accommodate Petitioner's "disabilities" and have discriminated against Petitioner because of such disabilities ("Claim Four"). Id. at 77-84. Petitioner in his Habeas Petition requests that this Court (1) order his immediate release; (2) order "the government to provide him with a prompt hearing before an immigration judge;" (3) award Petitioner reasonable costs and attorney's fees; and (4) grant any other relief that the Court deems just and proper. Dkt. 1, 23.
Then, on April 24, 2020, Petitioner filed his TRO/Preliminary Injunction Motion requesting that this Court grant Petitioner immediate release from ICE custody at the Caroline Detention Facility. Dkt. Nos. 1; 5. On April 28, 2020, Respondents filed their Memorandum in Opposition. Dkt. 7. On April 29, 2020, Petitioner filed his brief in reply. Dkt. 9. This matter is fully briefed and is now ripe for disposition. In light of this Court's General Order 2020-12, Local Civil Rule 13(J), and Fed. R. Civ. P. 78, this Court finds that an oral hearing would not aid in the decisional process and the Court will rule upon the TRO/Preliminary Injunction Motion without such a hearing.
II. STANDARD OF REVIEW
"A preliminary injunction [or TRO] is ‘an extraordinary remedy that may only be awarded upon a clear showing that the [the petitioner] is entitled to relief’ and may never be awarded ‘as of right.’ " Mountain Valley Pipeline, LLC v. W. Pocahontas Prop. LP. , 918 F.3d 353, 366 (4th Cir. 2019) (quoting Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). For a petitioner to demonstrate that he deserves such relief, he "must establish that: (1) [he] is likely to succeed on the merits; (2) [he] is likely to suffer irreparable harm without the preliminary injunction [or TRO]; (3) the balance of the equities tips in its favor; and (4) the injunction [or TRO] is in the public interest." Winter , 555 U.S. at 20, 129 S.Ct. 365. "The failure to show any one of the relevant factors mandates denial of the preliminary injunction [or TRO]." Parson v. Alcorn , 157 F. Supp. 3d 479, 491 (E.D. Va. 2016) (citation omitted).
III. ANALYSIS
A. Likelihood of Success on the Merits
This Court finds that Petitioner has not met his burden of clearly showing that he is likely to succeed on the merits of his claims. Petitioner has not done so (1) because two out of the three claims he raises in support of his TRO/Preliminary Injunction Motion are not cognizable under 28 U.S.C. § 2241 ; and (2) because Petitioner's claims appear to fail substantively. Therefore, this Court must deny Petitioner's request for a preliminary injunction or a temporary restraining order.
The Court recognizes that Petitioner's Habeas Petition raises a total of four claims. However, while Petitioner's claim that Respondents have violated the Rehabilitation Act appears in his Habeas Petition, Petitioner does not raise this claim as a ground for injunctive relief in his TRO/Preliminary Injunction Motion, which is presently before the Court. Accordingly, the Court will not address this allegation concerning the Rehabilitation Act in its determination on whether to grant the requested preliminary injunction or temporary restraining order.
1. Petitioner's Claims Under § 2241 Are Unlikely to Succeed
It bears repeating that "a preliminary injunction is an extraordinary remedy, to be granted only if the moving party clearly establishes entitlement to the relief sought." Hughes Network Sys., Inc. v. InterDigital Commc'ns Corp. , 17 F.3d 691, 693 (4th Cir. 1994) (citing Fed. Leasing, Inc. v. Underwriters at Lloyd's , 650 F.2d 495, 499 (4th Cir. 1981). In the instant matter, Petitioner's TRO/Preliminary Injunction Motion requests that he be immediately released. Dkt. 5. However, claims challenging the conditions under which a detainee is confined, are not properly raised through a petition for habeas corpus.
The Supreme Court of the United States has indicated that "[f]ederal law opens two main avenues of relief on complaints related to imprisonment: a petition for habeas corpus ... and a complaint under the Civil Rights Act ...." Hill v. McDonough , 547 U.S. 573, 579, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) (internal citations omitted). The Supreme Court has opined that "[c]hallenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus." Id. (internal citations omitted). Conversely, claims raising "the circumstances of confinement" may be pursued under 42 U.S.C. § 1983. Id.
The United States Court of Appeals for the Fourth Circuit has recently noted that the Supreme Court has found that "habeas petitions are traditionally brought to challenge ‘the very fact or duration of [ ] physical imprisonment ....’ " Wilborn v. Mansukhani , 795 Fed. App'x. 157, 163 (4th Cir. 2019) (quoting Preiser v. Rodriguez , 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ). Nevertheless, the Fourth Circuit has also indicated that the Supreme Court has yet left open the question of "whether a claim that unquestionably falls outside of the ‘core’ of habeas can nonetheless be brought in a habeas petition." Wilborn , 795 Fed. Appx. at 163.
There presently exists a circuit split on this question. "Seven of the ten circuits that have addressed the issue in a published decision have concluded that claims challenging the conditions of confinement cannot be brought in a habeas petition." Id. (comparing Nettles v. Grounds , 830 F.3d 922, 933–34 (9th Cir. 2016) (adopting the view post- Preiser that conditions-of-confinement claims, which fall outside "the core of habeas corpus," must be brought in a civil rights claim rather than in a habeas petition), Spencer v. Haynes , 774 F.3d 467, 469–70 (8th Cir. 2014) (same), Cardona v. Bledsoe , 681 F.3d 533, 537 (3d Cir. 2012) (same), Davis v. Fechtel , 150 F.3d 486, 490 (5th Cir. 1998) (same), McIntosh v. U.S. Parole Comm'n , 115 F.3d 809, 811–12 (10th Cir. 1997) (same), Graham v. Broglin , 922 F.2d 379, 381 (7th Cir. 1991) (same), and Martin v. Overton , 391 F.3d 710, 714 (6th Cir. 2004) (same), with Aamer v. Obama , 742 F.3d 1023, 1036 (D.C. Cir. 2014) (holding that prisoners can challenge the form of detention under habeas), Jiminian v. Nash , 245 F.3d 144, 146–47 (2d Cir. 2001) (allowing prisoners to challenge "prison disciplinary actions, prison transfers, type of detention and prison conditions" as "challenges [to] the execution of a federal prisoner's sentence" under § 2241 ), and Miller v. United States , 564 F.2d 103, 105 (1st Cir. 1977) (holding conditions-of-confinement claims are cognizable under § 2241 )).
The Fourth Circuit has not yet issued a published decision "relying on Preiser to hold that conditions-of-confinement claims are not cognizable in habeas proceedings." Wilborn , 795 Fed. App'x. at 163. Yet, the Fourth Circuit, in an unpublished opinion, Wilborn v. Mansukhani , has addressed the issue of whether claims that "unquestionably fall[ ] outside of the ‘core’ of habeas can nonetheless be brought in a habeas petition." 795 Fed. App'x. 157, 163 (4th Cir. 2019). In Wilborn , the Fourth Circuit commented, as it had on a previous occasion, that " ‘courts have generally held that a § 1983 suit or a Bivens action is the appropriate means of challenging conditions of confinement, whereas § 2241 petitions are not.’ " Id. (quoting Rodriguez v. Ratledge , 715 F. App'x 261, 265-66 (4th Cir. 2017) ). The Wilborn court, ultimately concluded that claims attacking the conditions of confinement go beyond the scope of habeas corpus and should be challenged as a civil rights action. 795 Fed. App'x. at 163.
This Court now, as it has in a prior opinion, "agrees with the weight of published authority and the Fourth Circuit's unpublished decisions, which hold that § 2241 is an improper vehicle for such a challenge." Toure, et al v. Hott, et al , No. 1:20-cv-395, Dkt. 33, 12. Thus, with these principles in mind, the Court finds that Claim One of Petitioner's Habeas Petition is cognizable under § 2241. Claims Two and Three are not.
On April 20, 2020, Petitioner filed his Habeas Petition, pursuant to 28 U.S.C. § 2241, which set forth the following claims. Dkt. 1. First, Petitioner argues that his Fifth Amendment procedural due process rights have been violated because of the length of his detention without a bond hearing. Id. at ¶¶ 57-68. Second, Petitioner maintains that his Fifth Amendment substantive due process rights have been violated because the conditions under which he is detained constitute "punitive conditions of confinement[,]" which "lack a reasonable relationship to any legitimate governmental purpose[.]" Id. at ¶¶ 69-72. Third, Petitioner believes that Respondents have violated his substantive due process rights under the Fifth Amendment because Respondents have acted with "deliberate indifference" to Petitioner's health and safety by "subjecting [Petitioner] to a high risk of contracting COVID-19[.]" Id. at ¶¶ 73-76.
For the reasons set forth above (supra , p. 690–91, n. 2), this Court will not address Petitioner's likelihood of success on Claim Four, which alleges that Respondents violated the Rehabilitation Act.
Respondents argue that Petitioner has not clearly shown that he will likely be successful on the merits of his claims because Petitioner is using § 2241 as a means to challenge the "conditions of his detention" and not the legality of Petitioner's confinement itself. Dkt. 7, 11-14. Said otherwise, it is Respondents' position that § 2241 is not the appropriate vehicle by which Petitioner may challenge the conditions of confinement. Id.
However, the Court finds that as an initial matter, only Claims Two and Three attack the conditions under which Petitioner is detained. See Dkt. 1, ¶ 71 (Petitioner's second cause of action claim that Respondents are "housing [Petitioner] in life-threatening conditions that do not adequately protect him from COVID-19"); id. at ¶ 73-76 (Petitioner's third cause of action alleges that Respondents, by detaining Petitioner, are subjecting Petitioner to "punitive conditions of confinement"). Conversely, Petitioner, in his first cause of action, claims that the length of his detention without a bond hearing is unconstitutional. See id. at ¶ 58 ("[Petitioner's] prolonged detention without a bond hearing violates the Due Process clause of the Fifth Amendment. The Due Process clause requires a bond hearing when immigration detention becomes unreasonably prolonged.").
Therefore, the Court finds that Claims Two and Three, which challenge the conditions of Petitioner's confinement, are not cognizable under § 2241. Given that these claims are not cognizable as habeas petitions, Petitioner is unlikely to be successful on the merits, and the relief he seeks is unavailable to him.
However, while habeas petitions are not the appropriate vehicle to challenge conditions of confinement, they are appropriate to challenge the duration of detention. The Supreme Court has held that where a prisoner is "challenging the very fact or duration of his physical imprisonment and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser , 411 U.S. at 484, 93 S.Ct. 1827. Petitioner's first claim, attacking the length of his detention and requesting release, is such a claim. Dkt. 1, ¶¶ 57-68, p. 23. Therefore, this Court finds that a § 2241 is the proper vehicle by which Petitioner could challenge such a claim. Yet, even though § 2241 may be such an appropriate vehicle, the Court is constrained to deny the relief which Petitioner requests for the reasons that follow (infra , p. 692–95).
2. Petitioner's Substantive Claims Are Unlikely to Succeed on the Merits
For the following reasons, this Court finds that the merits of Petitioner's claims are likely to prove unsuccessful.
a. Claim One
Although this Court has concluded that § 2241 may be a proper vehicle by which Petitioner may challenge the duration of his detention, the Court finds that Petitioner is unlikely to succeed on the merits of Claim One, given his status as an arriving alien. In his first claim, Petitioner, a self-described "arriving alien," contends that the length of his detention without a bond hearing violates his procedural due process rights. Dkt. 1, ¶¶ 16, 57-68. In relevant part, the designation "arriving alien" is defined as:
an applicant for admission coming or attempting to come into the United States at a port-of-entry ... whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of this Act ... and even after any such parole is terminated or revoked.
8 C.F.R. § 1.2. "Section 212(d)(5) authorizes the Attorney General to parole into the United States temporarily aliens who arrive at the border seeking detention." Joshi v. Dist. Director, I.N.S. , 720 F.2d 799, 803 (4th Cir. 1983). Petitioner indicates that he was so "paroled back into [this] country on May 9, 2013." Dkt. 1, ¶ 16, 6 n. 1.
The Fourth Circuit has noted that "[a]lthough a paroled alien is physically present in the United States, he is characterized as stopped at the gates." Joshi , 720 F.2d at 803 (citing Kaplan v. Tod , 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585 (1925) ). Petitioner's designation as an arriving alien who has been paroled pursuant to 8 C.F.R. § 212(d)(5), and effectively "stopped at the gates" is significant because under Supreme Court precedent, the rights afforded to those who have effectively been "stopped at the gates" of the United States differ from "aliens who have once passed through our gates, even illegally ...." Shaughnessy v. United States, ex rel. Mezei , 345 U.S. 206, 212, 73 S.Ct. 625, 97 L.Ed. 956 (1953). While aliens who have "passed through our gates" are entitled to "proceedings conforming to traditional standards of fairness encompassed in due process of law[,]" "an alien on the threshold of initial entry stands on a different footing: ‘Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.’ " Shaughnessy , 345 U.S. at 212, 73 S.Ct. 625 (citing United States ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed. 317 (1950) ; Nishimura Ekiu v. United States , 142 U.S. 651, 660, 12 S.Ct. 336, 35 L.Ed. 1146 (1892) ); see also Hong v. United States , 244 F. Supp. 2d 627, 634 (E.D. Va. 2003) ("[A]liens on the threshold of initial entry are entitled only to the procedure authorized by Congress ....").
It is undisputed that Petitioner is presently detained pursuant to 8 U.S.C. § 1225(b), which governs the expedited removal of inadmissible arriving aliens. Petitioner concedes that he is. In Jennings v. Rodriguez , the Supreme Court considered the question of whether 8 U.S.C. §§ 1225(b)(1) and (b)(2) impose a "6-month limit on the length of detention," and if once that period has elapsed, "aliens previously detained under those provisions" are entitled to bond hearings in "certain circumstances." ––– U.S. ––––, 138 S.Ct. 830, 842-43, 200 L.Ed.2d 122 (2018). In considering these arguments, the Court commented that "[ 8 U.S.C.] § 1225 applies to aliens seeking entry into the United States," and when "[r]ead most naturally ... mandate[s] detention of applicants for admission until certain proceedings have concluded." Jennings v. Rodriguez , ––– U.S. ––––, 138 S.Ct. 830, 842, 200 L.Ed.2d 122 (2018). "Once those proceedings end, detention under § 1225(b) must end as well. Until that point, however, nothing in the statutory text imposes any limit on the length of detention. And ... § 1225(b)(2) says [no]thing whatsoever about bond hearings." Id. Ultimately, the Jennings Court rejected the argument that § 1225(b)(2) "can be construed to contain implicit limitations on the length of detention," noting that such a construction of the statute is not "plausible." Id.
In applying this standard to the case at bar, two concepts are clear. First, it is abundantly clear that the due process rights afforded to Petitioner as an arriving alien are not those of the "traditional standards of fairness encompassed in due process of law[,]" but rather, Petitioner's due process rights flow from those prescribed by Congress. Shaughnessy , 345 U.S. at 212, 73 S.Ct. 625. Second, that Petitioner, who is detained pursuant to § 1225(b)(2), must "be detained until such bond proceedings have concluded." Jennings , 138 S.Ct. at 842. Because Petitioner is currently appealing to the BIA the Immigration Court's determination that he be removed, Petitioner's removal proceedings are still pending. Accordingly, since Petitioner's proceedings are still pending due to his appeal, this Court could not order that he be released. This is because § 1225(b)(2) does not "contain implicit limitations on the length of detention." Id.
Alternatively, Petitioner argues that he should not remain detained because "perhaps unlike some recent clandestine entrants[,]" "he is not an outlaw whom the government found lurking in the shadows." Dkt. 9, 5. The Court will not ignore binding, Supreme Court precedent in favor of this argument.
Additionally, Petitioner cites to Bah v. Barr , 409 F. Supp. 3d 464, 472 (E.D. Va. 2019), and Portillo v. Hott , 322 F. Supp. 3d 698, 708-09 (E.D. Va. 2018), where this Court ordered that the petitioners receive a bond hearing before an immigration judge.
However, Petitioner's reliance on these cases is misplaced. In neither Bah nor Portillo , were the petitioners detained as arriving aliens pursuant to § 1225(b), as Petitioner is here. In both Bah and Portillo , this Court found that the petitioners were detained pursuant to § 1226. This fact played a key role in the Court's determinations that those petitioners' lengthy detentions warranted bond hearings. See Bah , 409 F. Supp. 3d at 472 (noting that the dispute between the parties over which statute applied was not "inconsequential" because if "§ 1226 applie[d], the[n the] path to a bond hearing is quite clear. For it is well-established that aliens detained under § 1226 must receive bond hearings if their lengthy detentions violate Due Process," whereas that principle was not necessarily true under another statute); Portillo , 322 F. Supp. 3d at 701 (commenting that it was "important" that the petitioner was detained pursuant § 1226 because "§ 1226 generally provides for bond hearings with the caveat that § 1226(c) requires the detention of certain ‘criminal aliens’ "). Because this case concerns an individual who has been designated as an arriving alien and detained pursuant to § 1225(b), this Court finds Bah and Portillo to be inapplicable.
For these reasons, this Court finds that Petitioner has failed to meet his burden of clearly establishing that he would be likely to succeed on Claim One.
b. Claim Two
Petitioner's second claim is that Respondents have subjected him to "unlawful punishment" in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution because they are housing Petitioner "in life-threating conditions that do not adequately protect Petitioner from COVID-19." Dkt. 1 at ¶¶ 69-72. Petitioner further alleges that such "conditions of confinement lack a reasonable relationship to any legitimate governmental purpose and are excessive in relation to the purpose of confinement ...." Id. at ¶ 72. Assuming for purposes of this analysis, that Congress has indeed decided to extend Petitioner due process rights commensurate with the Fifth Amendment under Shaughnessy , 345 U.S. at 212, 73 S.Ct. 625, this Court finds that Petitioner's second claim still fails because it cannot be said that Petitioner is being punished as his detention is reasonably related to a legitimate government objective.
Under the Due Process Clause of the Fifth Amendment to the United States Constitution, "a detained may not be punished prior to an adjudication of guilt in accordance with due process of law." Bell v. Wolfish , 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (citations omitted). Accordingly, the Supreme Court has indicated that "[i]n evaluating the constitutionality or conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law," courts are to inquire as to "whether those conditions amount to punishment of the detainee." Id. at 535, 99 S.Ct. 1861.
The Fourth Circuit has held that
[T]o prevail on a substantive due process claim, a pretrial detainee must show unconstitutional punishment by proving that the challenged conditions were either "(1) imposed with an expressed intent to punish or (2) not reasonably related to a legitimate nonpunitive governmental objective, in which case an intent to punish may be inferred."
Williamson v. Stirling , 912 F.3d 154, 178 (4th Cir. 2018) (finding that a pretrial detainee's "detention in solitary confinement for three-and-a-half years was punitive, and thus unconstitutional") (quoting Slade v. Hampton Roads Reg'l Jail , 407 F.3d 243, 251 (4th Cir. 2005) ). However, where "a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ " Wolfish , 441 U.S. at 539, 99 S.Ct. 1861.
In the case at hand, Petitioner does not contend that Respondents have imposed upon Petitioner conditions of detention with "an expressed intent to punish" him. Instead, Petitioner alleges that the conditions of his detention are "not reasonably related to a legitimate nonpunitive governmental objective." Dkt. Nos. 1, ¶ 72; 6, 13. Accordingly, this Court will "evaluate the evidence and ascertain the relationship between the actions taken against the detainee and the custodian's supporting rationale. That inquiry turns on whether the actions taken may be attributed to an alternative, nonpunitive rationale, and whether they appear ‘excessive in relation to the alternative purpose assigned.’ " Williamson , 912 F.3d at 178 (internal citation omitted) (quoting Robles v. Prince George's Cty. Maryland , 302 F.3d 262, 269 (4th Cir. 2002) ). It is not this Court's role to determine "how best to operate a detention facility." Wolfish , 441 U.S. at 539, 99 S.Ct. 1861. Rather, this Court is to "be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact ...." Id.
On the one hand, Petitioner argues because he has "several underlying health conditions," inclusive of "coronary atherosclerosis, high blood pressure, diabetes, obesity, post-traumatic ankle arthritis, and extensive dental implants leading to frequent infections," and he is 69-years-old, Petitioner is "especially susceptible to serious illness, disability[,] and death if he contracts COVID-19[;]" a novel disease which Petitioner hypothesizes his detention facility "is not equipped to take adequate measures that would prevent Petitioner from contracting[.]" Dkt. Nos. 6, 13; 1, ¶23. On the other hand, Respondents attempt to rebut Petitioner's argument by urging that they have an interest in "preventing Petitioner from absconding and protecting the public." Dkt. 7, 19. Respondents contend that this interest is only "heightened by the fact that Petitioner presents an extraordinary flight risk, is wanted for a criminal conviction in another country, and was found not credible by the Immigration Court in his requests for relief." Id. Moreover, Respondents aver, that "isolated examples of illness, injury, or even death, standing alone, cannot prove that conditions of confinement are constitutionally inadequate. Nor can the incidence of diseases or infections, standing alone, imply unconstitutional confinement conditions, since any densely populated resident may be subject to outbreaks." Id. at 18 (citing Shepherd v. Dallas Cnty. , 591 F.3d 445, 454 (5th Cir. 2009).
"[P]reventing detained aliens from absconding and ensuring that they appear for removal proceedings is a legitimate governmental objective." Dawson v. Asher , No. C20-0409, 2020 WL 1304557, at *2 (W.D. Wash. Mar. 19, 2020) (citing Jennings , 138 S.Ct. at 836 (2018) ; Demore v. Kim , 538 U.S. 510, 523, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) ; Zadvydas v. Davis , 533 U.S. 678, 690-91, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ). This Court finds that continuing to detain Petitioner is reasonably related to the legitimate government interest of preventing Petitioner from absconding and ensuring his appearance for his removal proceedings. Thus, a reasonable relation for the confinement exists, and "does not, without more, amount to ‘punishment.’ " Wolfish , 441 U.S. at 539, 99 S.Ct. 1861.
Further, similarly to the Western District of Washington, this Court is unaware of any binding precedent which indicates that "the fact of detention itself becomes an ‘excessive’ condition solely due to the risk of a communicable disease outbreak - even one as serious as COVID-19." Dawson , 2020 WL 1304557, at *2. Nor does Petitioner cite to any such authority. Accordingly, Petitioner's continued detention may be said to be reasonably related to a legitimate, nonpunitive, Governmental objective. "To adopt Petitioner['s] position would be to hold that the detention of any high-risk immigration detainee during the pandemic is necessarily unconstitutional," and this Court, like the United States District Court for the District of Maryland is not presently prepared to adopt that view. Coreas v. Bounds , No. TDC-20-0780, 451 F.Supp.3d 407, 428 (D. Md. Apr. 3, 2020).
Moreover, although Petitioner argues that the Caroline Detention Facility is not suited to prevent Petitioner from contracting COVID-19, the record contains an abundance of evidence that it is in fact equipped with adequate measures to do so. Based on the Declaration of Lieutenant Stephanie Mros, MPH, BSN, RN, CCHP, the Assistant Health Services Administrator at the Caroline Detention Facility, the Caroline Detention facility has, amongst other preventative procedures, increased sanitation measures, implemented quarantine procedures, and limited the amount of foot traffic; provided detainees with masks, informed detainees of the appropriate measures for virus prevention; and utilized both internal and external resources to diagnose and deal with cases of COVID-19. Dkt. 7-2. A fact that cannot be ignored is that the Caroline Detention Facility recently had two detainees who contracted the virus, however, the detention facility successfully isolated those individuals and both of the individuals who tested positive are in stable condition. Dkt. 7-2, ¶ 20. In sum, this Court finds that the Caroline Detention Facility is, as it has attested to through its first responders, working "24/7" to take both proactive and reactive steps to ensure the safety of both the individuals who work in the facility and those who are detained. See generally Dkt. 7-2. This Court finds that at this juncture, these steps appear to have been effective, especially in light of the fact that at present, there are still no more than two confirmed cases at the Caroline Detention Facility. See U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19: Confirmed Cases, https://www.ice.gov/coronavirus (last visited May 5, 2020) (indicating that there are still only two diagnosed cases of COVID-19 at the Caroline Detention Facility).
In support of this position that the conditions at the Caroline Detention Facility, where Petitioner is being held, are "life-threatening," and thereby inadequate, Petitioner's counsel has submitted to the Court two affidavits from Dr. Luke A. Stevens. Dkt. Nos. 6-3; 9-1. It appears to the Court that Dr. Stevens, is the brother of Petitioner's counsel, Mark Alastair Stevens; works as an Emergency Physician in the Emergency Department at Signature Healthcare Brockton Hospital in Brockton, Massachusetts; and has based his affidavits on hearsay. See Dkt. 6-3, ¶2 (indicating that in assessing Petitioner's risk of exposure to COVID-19 he reviewed Petitioner's own affidavit, Petitioner's medical records, and the "complaint" filed in this case). While "[a]n affidavit in support of a temporary restraining order can be based on hearsay .... the fact that the affidavit is based on hearsay is a factor in determining the weight of the affidavit." H.J. Meyers & Co. v. Euripides , 2:96-cv-l72, 1996 U.S. Dist. Lexis 17217, at *7 (E.D. Va. Mar. 18, 1996). In light of these facts, the Court certainly notes, and has taken into account, the weight that should be afforded to Dr. Stevens's testimony.
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Significantly, Petitioner has provided inapposite authority in support of his position. Petitioner has cited to Thakker v. Doll , 1:20-cv-480, Dkt. 47 (E.D. Pa. Mar. 31, 2020), a case out of the Eastern District of Pennsylvania, in which the Court "relied in part on the fact that the facilities had significant overcrowding and unsanitary conditions including the presence of rats." See Coreas , 451 F.Supp.3d at 427 (discussing Thacker v. Doll , 1:20-cv-480, Dkt. 47 at 14, 20-21 (E.D. Pa. Mar. 31, 2020). The Caroline Detention Facility is not confronted by these conditions in that it has heightened its levels of cleanliness, encouraged individuals to wear masks, and targeted contaminated surfaces. The Caroline Detention Facility is also operating at 60% capacity and thus cannot reasonably be said to be overcrowded. Thus, Petitioner's reliance on Thakker is misplaced.
Petitioner also analogizes this case to Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) noting that "the Supreme Court explained that [ ] ‘[t]here is no sufficiently strong special justification ... for indefinite civil detention." Dkt. 6, 13 (citing Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491 ). Petitioner advances Zadvydas , to argue the point that "[i]f the government's interest cannot justify indefinite detention, it also cannot justify the similarly ‘potentially permanent’ medical harm and death that [Petitioner] could well face." Dkt. 6, 14. Yet, the Zadvydas , case is not analogous to the case at bar in this respect. In Zadvydas , the Supreme Court considered the injury of indefinite civil detention which ensued as a result of statutory authority. See Zadvydas , 533 U.S. at 690, 121 S.Ct. 2491. That specific injury, though potentially permanent, commenced when an individual was detained. Id. Yet, here, the potentially permanent injury, which Petitioner raises here is speculative given that Petitioner will only be injured in the manner he raises should he be first exposed to the virus, then also contract the virus, and then also develop severe symptoms.
Therefore, this Court finds that Petitioner has not met his burden of showing a likelihood of success with respect to his claim that his confinement is an unlawful punishment.
c. Claim Three
Petitioner also has not shown a likelihood of success on his claim that Respondents have been deliberately indifferent by "subjecting [Petitioner] to a high risk of contracting COVID-19 in disregard of the threat that this [virus] poses to his health and safety." Dkt. 1, ¶ 76. Petitioner maintains that such actions are in violation of his substantive due process rights under the Fifth Amendment to the United States Constitution. Id. at ¶ 74. Again, for purposes of this analysis, the Court will assume that Congress has afforded Petitioner due process rights equal in scope to that of the Fifth Amendment. However, even assuming arguendo , the Court is constrained to find that Petitioner's point fails.
The Supreme Court has opined that "when the State takes a person into its custody and holds him there against his will, the Constitution imposes ... a corresponding duty to assume some responsibility for his safety and general wellbeing." 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) (citing Youngberg v. Romeo , 457 U.S. 307, 317, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) ). The rationale behind this principle is that
when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.
DeShaney , 489 U.S. at 200, 109 S.Ct. 998 (citing Estelle v. Gamble , 429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ; Youngberg , 457 U.S. at 315-16, 102 S.Ct. 2452 (1982) ). Accordingly, "[i]n [a] substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty—which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause ...." DeShaney , 489 U.S. at 200, 109 S.Ct. 998.
Individuals in civil detention "are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." Youngberg , 457 at 321-22, 102 S.Ct. 2452. Pursuant to the Eighth Amendment, detainees are protected from "unnecessary and wanton infliction of pain." Estelle , 429 U.S. at 103, 97 S.Ct. 285 (citations omitted). Thus, the Supreme Court has held that "deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment." Id. at 104, 97 S.Ct. 285 (quoting Gregg v. Georgia , 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ). As such, the Fourth Circuit has determined that "a pretrial detainee makes out a due process violation if he shows ‘deliberate indifference to serious medical needs’ " under the Eighth Amendment. Martin v. Gentile , 849 F.2d 863, 871 (4th Cir. 1988).
A petitioner may sustain a deliberate indifference claim against a prison official where such officials are "maintaining inhumane conditions of confinement or [are] failing to render medical assistance." Thompson v. Commonwealth of Virginia , 878 F.3d 89, 97 (4th Cir. 2017). The alleged deprivation must be "sufficiently serious" and prison officials must "know[ ] of and disregard[ ] an excessive risk to inmate health or safety." Farmer v. Brennan , 511 U.S. 825, 834, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal citations and quotation marks omitted). While the determination of the severity of the medical need implicates an objective inquiry, whether the prison personnel knew of and disregarded the risk to the detainee's health and safety is subjective. Iko v. Shreve , 535 F.3d 225, 241 (4th Cir. 2008).
To be sure, to establish deliberate indifference, Petitioner must meet "a very high standard [,]" Grayson v. Peed , 195 F.3d 692, 695 (4th Cir. 1999), for the standard is "higher [ ] for culpability than mere negligence or even civil recklessness[,]" Jackson v. Lightsey , 775 F.3d 170, 178 (4th Cir. 2014). In the context of medical care, a petitioner as established deliberate indifference where he shows that the treatment he receives, or lack thereof, is "so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Miltier v. Beorn , 896 F.2d 848, 851 (4th Cir. 1990) (citing Rogers v. Evans , 792 F.2d 1052, 1058 (11th Cir. 1986) ). Therefore, even in instances where "prison officials [ ] actually knew of a substantial risk to inmate health or safety" and that particular harm ultimately occurs, the officials "may be found free from liability if they responded reasonably to the risk." Farmer , 511 U.S. at 844, 114 S.Ct. 1970. "[O]fficials who act reasonably cannot be found liable[.]" Id. at 845, 114 S.Ct. 1970.
This Court finds that Respondents have not been deliberately indifferent to Petitioner's medical needs. To the contrary, in these most trying times, the Respondents have been responsive, thorough, proactive, and humane in their reaction to the challenges presented by COVID-19. The Court recognizes that the rapid spread of COVID-19 has posed serious challenges for our national and global community. The need for social distancing in response to the COVID-19 pandemic has presented challenges particularly for most, if not all, of the detention facilities across our country. The Court has considered the affidavits presented to the Court by both the Petitioner and the Respondents. In considering the points raised by the parties, the Court cannot conclude that Petitioner's due process rights have been violated as a result of deliberate indifference when the record clearly establishes that Respondents have been anything but that.
Based on the record, it is not likely that Petitioner can establish that Respondents "kn[e]w[ ] of and disregard[ ] an excessive risk to inmate health or safety." Farmer , 511 U.S. at 834, 937, 114 S.Ct. 1970 (internal citations and quotation marks omitted). Examples of the actions taken by personnel at the Caroline Detention Facility, where Petitioner is detained include that staff have provided detainees with disinfectants and masks; promoted frequent hand-hygiene; increased cleaning and disinfecting of communal spaces; suspended in-person social visitation and implemented "video visitation;" limited "professional visits to "non-contact" encounters; continually screen staff and vendors when they enter the facilities for exposure and symptoms; educated detainees on COVID-19 prevention both orally and in print; and isolates incoming detainees during their first 14 days of arrival. Dkt. 7-2. In addition to each of these examples of how the Caroline Detention Facility has reacted to the health concerns attendant with the spread of COVID-19, the Caroline Detention Facility is operating at 60% capacity and has rooms which could provide for social distancing even in a place where such practice may be found to be more challenging. Thus, Respondents have taken reasonable actions to protect Petitioner from COVID-19. Because a determination of deliberate indifference requires that both elements be met, and Petitioner has failed to clearly show that he is likely to prevail as to the subjective prong, the Court does not need to decide whether Petitioner has satisfied the objective prong. Accordingly, the Court finds that Petitioner is not likely to succeed on this claim.
B. Irreparable Harm
In addition to demonstrating that he is likely to succeed on the merits of his claims, Petitioner must also show that he will be irreparably harmed. Petitioner argues that he will be irreparably harmed for two reasons. First, the denial of his constitutional right in and of itself constitutes an irreparable harm. Second, his "increased risk of death, severe, illness, and disability" constitute irreparable harm. Dkt. 6, 20-21. The Court is not persuaded to accept either argument.
While the Fourth Circuit has indicated that "the denial of a constitutional right" in its own right "constitutes irreparable harm for purposes of equitable jurisdiction," Ross v. Meese , 818 F.2d 1132, 1135 (4th Cir. 1987), there must be some constitutional right that has been violated for such a finding. For the reasons articulated above (supra , p. 694–700), the Supreme Court and the Fourth Circuit have not found there to have been a constitutional right that has been violated. Accordingly, Petitioner's argument as to this first point fails.
With respect to Petitioner's second argument concerning irreparable harm, this point is premised on his position that "because he has underlying medical conditions that increases his likelihood of severe illness or death if he contracts COVID-19," he should be released. Dkt. 6, 20. Yet, to sufficiently satisfy the requirement of irreparable harm, Petitioner must "demonstrate that irreparable injury is likely in the absence of an injunction." Winter , 555 U.S. at 22, 129 S.Ct. 365. The mere "possibility of irreparable harm" will not do. Id. Not only must this harm be likely but the alleged harm must "be neither remote nor speculative, but actual and imminent." Scotts Co. v. United Indus. Corp. , 315 F.3d 264, 283 (4th Cir. 2002).
Here, the Court finds the alleged harm to be speculative, and the mere possibility for the harm of which Petitioner complains is, too attenuated from the circumstances at hand. As other courts have found, "[e]very person in the United States, whether in a detention facility or not, faces COVID-19 exposure." Albino-Martinez v. Adducci , No. 2:20-cv-10893, 454 F.Supp.3d 642, 649 (E.D. Mich. Apr. 14, 2020) (citing United States v. Steward , No. S1:20cr0052(DLC), 2020 WL 1468005, at *5 (S.D.N.Y. Mar. 26, 2020) ). As such, release does not necessarily reduce the possibility of Petitioner's exposure. Thus, the Court finds that Petitioner has failed to clearly show irreparable harm.
C. Balance of Equities/Public Interest
Generally, where the Government is the opposing party, the requirements that a petitioner show that the balance of equities and public interest are in their favor, merge. Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). The Court, in this instance, sees no reason to depart from this general rule.
Petitioner argues that the public interest and the balance of equities warrant relief because Petitioner's "continued detention is unconstitutional and unlawful." Dkt. 6, 20-21. Petitioner also claims that the public interest and the balance of equities do not fall in Respondents' favor because "a governmental entity ‘is in no way harmed by issuance of a preliminary injunction which prevents it from enforcing a regulation, which ... is likely to be found unconstitutional." Id. Because at this point, the Court finds that Petitioner's detention is neither unconstitutional nor unlawful (supra , p. 690–700), the public interest and balance of equities cannot be said to favor his release.
Thus, the Court finds that these factors also weigh against granting Petitioner's motion for a temporary restraining order or preliminary injunction.
IV. CONCLUSION
For the reasons stated above, Petitioner has failed to clearly establish a likelihood of success, irreparable harm, or that the balance of the equities or public interest favor granting a preliminary injunction.
Accordingly, Petitioner has failed to carry his burden, and the motion for a temporary restraining order or a preliminary injunction (Dkt. 5) is DENIED.
It is SO ORDERED.