In two recent decisions that impact the civil detention policies of U.S. Immigration and Customs Enforcement (ICE) amidst the COVID-19 pandemic, the Hon. Analisa Torres of the Southern District of New York granted injunctive relief to two sets of immigrant plaintiffs suffering from underlying medical conditions, ordering their immediate release from confinement in New Jersey detention centers while they await hearings to adjudicate their civil immigration enforcement proceedings.

In Basank v. Decker, 20 Civ. 2518 (AT), 2020 WL 1481503 (S.D.N.Y. March 26, 2020) and Arias v. Decker, 20 Civ. 2802 (AT), 2020 WL 1847986 (S.D.N.Y. April 10, 2020), multiple plaintiffs suffering from a variety of physical ailments recognized as "underlying conditions" in the context of the COVID-19 pandemic, brought writs of habeas corpus pursuant to 28 U.S.C. 2214 seeking immediate release from detention in nearby New Jersey detention facilities due to the sub-standard conditions in those facilities located in Essex, Bergen and Hudson Counties. The Arias and Basank plaintiffs, all suffering from a variety of chest and pulmonary afflictions and all represented by Brooklyn Defender Services, successfully established the four elements necessary to warrant a temporary restraining order mandating their immediate release pending their respective removal hearings: (1) irreparable harm; (2) likelihood of success on the merits and; (3) a balance of the equities in their favor; and (4) and that injunctive relief would serve the public interest.

Irreparable Harm

Noting that the most important injunctive relief factor is irreparable harm, Judge Torres ruled that the plaintiffs established it in each case, both as to their health and to their constitutional due process rights. As to the plaintiffs' health considerations, Judge Torres first noted that both the ubiquity and severity of the pandemic directly threaten the health of individuals, like plaintiffs, suffering from significant respiratory problems and, particularly, those individuals held in jails and detention centers.

The judge further found that, while facilities such as the Essex County Jail have taken steps to lessen the risk of spreading the disease within the close confines of detention—such as "increasing supplies, requiring detainees to eat in their 'pods' rather than in a larger common dining area, performing temperature checks on incoming detainees, disallowing all visitation from family and friends, and reducing the number of detainees who can take recreation at the same time"—such measures are "far from sufficient." Arias, 2020 WL 1847986, at *4. Judge Torres noted that efforts to try to daily monitor and segregate detainees who had tested positive for the virus and those who showed symptoms from others who had or did not, violated the Center for Disease Control guidelines for social distancing in detention facilities. Id. She also observed that "the Essex County Jail does not provide gloves or masks to detainees unless the detainee exhibits symptoms of COVID-19 … [And] although such a precaution may prevent the spreading of the virus, it does nothing to help the detainee who has already been infected, and does nothing to prevent transmission from asymptomatic individuals, or those not forthcoming about their symptoms." Id. at *5. Given that the conditions in the county detention facilities did not adequately prevent the spread of the illness, and given that petitioners' "infection with COVID-19 would almost certainly cause severe—or fatal—damage to their health" petitioners had satisfied the standard for irreparable harm. Id.

Substantial Likelihood of Success

Given Judge Torres' factual determinations that the county detention facilities were failing to provide adequate safety measures to the vulnerable population of immigrant detainees, she also determined that the petitioners were likely to prevail on the merits of their claims alleging a deprivation of constitutional Due Process. She first reaffirmed that immigration detainees can establish a violation of due process if they can show the government was aware or should be aware of an excessive health risk to detainees and failed, through "deliberate indifference", to take appropriate remedial action such that the "conditions of confinement 'pose an unreasonable risk of serious damage to their future health.'" Id. at *7 (citation omtted). Because the facilities' ongoing failure to implement social distancing and other protective measures pursuant to CDC guidelines, the petitioners established that they were likely to succeed on their constitutional due process claims.

Balance of Equities and the Public Interest

Given her ruling on the first two factors, Judge Torres made relatively quick work of the equities analysis and public interest concerns. Critically, Judge Torres highlighted that for these individuals, with only limited exceptions (for prior drug charges), ICE had no basis for involuntary confinement other than to ensure appearances at immigration hearings—which could largely be assured by court-ordered conditions of release. In effect, the Judge reasoned that involuntary detention merely to ensure civil immigration hearing attendance was an insufficient basis to justify continuously exposing individuals with pre-existing health conditions to a greatly heightened risk of exposure to COVID-19: "During a deadly pandemic, the continued confinement of individuals being held to ensure that they appear at their immigration proceedings—not as punishment for any crime or with the primary aim of protecting public safety—does not serve the public's interest." Id at *9.

Judge Torres had the benefit of weighing petitioners' habeas corpus requests in two cases separated by about two weeks at the same facility (the Essex County Jail), plus other similar detention facilities in northern New Jersey. And while the court took note of the fact that ICE was trying to address some of the social distancing measures recommended by health authorities, those measures were simply not sufficient in a setting where detainees must closely interact constantly throughout virtually all activities and without any clear understanding as to who is or is not carrying the COVID-19 virus.

While the challenges of administering protocols for incarcerating individuals in criminal matters while society reels from the coronavirus pandemic require a careful balancing of the interests in safeguarding the personal health of those individuals with the public safety considerations that, in part, justify incarcerating those individuals in concentrated and restrictive environs, those public safety considerations are simply not as compelling in cases where many, mostly non-violent immigrant detainees are confined as part of a civil administrative regime that is itself overburdened and, at times, inherently questionable. Judge Torres' decisions in Arias and Basank reflect an apparent and emerging judicial consensus that the personal health and Due Process rights of detained immigrants should trump any administrative justifications for detaining them. This consensus seems even more justifiable as the world's best health experts continue to wrestle with the magnitude of the COVID-19 pandemic and how best to contain it.

Edmund M. O'Toole is a partner in Venable's commercial litigation practice.