Barco v. Price

457 F.Supp.3d 1088

Rando BETANCOURT BARCO, Michel Fuentes Luis, Luis Alfonso Mejia Velasquez, Plaintiffs/Petitioners,

v.Corey PRICE, in his official capacity as Director of the El Paso ICE Field Office; Dora Orozco, in her official capacity as Warden of Otero County Processing Center; Matthew T. Albence, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; Chad Wolf, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; William P. Barr, in his official capacity as Attorney General, U.S. Department of Justice; and U.S. Immigration and Customs Enforcement, Defendants/Respondents.

No. 2:20-cv-350-WJ-CG

United States District Court, D. New Mexico.

Filed May 1, 2020

Joachim Marjon, Marjon Law, P.C., Santa Fe, NM, Maria Martinez Sanchez, ACLU of New Mexico, Albuquerque, NM, for Plaintiffs.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER

WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on Plaintiffs' Motion for a Temporary Restraining Order [Doc. 3], filed April 20, 2020. Plaintiffs are noncitizen detainees who are in the process of being removed from the United States. They are detained at the Otero County Processing Center ("Otero"). Plaintiffs request that the Court issue a temporary restraining order releasing them from Otero because they have medical conditions that make them vulnerable to serious illness or death should they contract Coronavirus Disease 2019 (COVID-19) and that there are no adequate measures that can ensure they avoid exposure to COVID-19 at Otero.

Plaintiffs are seeking relief under 28 U.S.C. § 2241 as a habeas corpus petition and 28 U.S.C. § 1331 as an independent cause of action for injunctive relief under the Fifth Amendment's Due Process Clause. The Court has reviewed the briefing, exhibits, and applicable law and finds that Plaintiffs have not met their heightened burden to demonstrate that the extraordinary remedy of a temporary restraining order is warranted. For the reasons explained in this Memorandum Opinion and Order, the Court denies Plaintiffs' motion.

PROCEDURAL HISTORY

On April 20, 2020, Plaintiffs filed their complaint [Doc. 1], a request that the case be assigned to United States District Judge Judith C. Herrera [Doc. 2], and the subject motion [Doc. 3]. Later that day, the United States entered its appearance on behalf of all Defendants [Doc. 11], and the case was assigned to the undersigned Judge. On April 21, 2020, the Court ordered expedited briefing [Doc. 12]. As part of that Order, the Court instructed Defendants to include their position on whether the case should be assigned to Judge Herrera. On April 24, 2020, Defendants submitted their response [Doc. 20] opposing Plaintiffs' motion. In their response, Defendants alerted the Court that:

As part of [the United States Immigration and Customs Enforcement's (ICE) ] ongoing efforts at Otero to identify and release appropriate vulnerable detainees, Petitioner Betancourt was released from custody on April 21, 2020. Thus, his claim is now moot. Petitioners Fuentes and Mejia were likewise evaluated for potential release but were not granted parole because contrary to their allegations, they do not present documented [Centers for Disease Control and Prevention (CDC) ] recognized vulnerabilities for COVID-19 and are flight risks due to their immigration and criminal histories.

Doc. 20 at 2–3 (citations omitted). Plaintiffs filed a notice [Doc. 21] later that same day notifying the Court that they no longer requested an order releasing Plaintiff Betancourt from Otero. Briefing on the motion was completed on April 27, 2020. Doc. 25 (Notice of Completion of Briefing). The court then reviewed the briefing, exhibits, and applicable law and determined that a hearing was not necessary to rule on Plaintiffs' motion.

REQUEST TO ASSIGN THE CASE TO JUDGE HERRERA

Prior to the undersigned Judge randomly being assigned this case, Plaintiffs requested that Judge Herrera be assigned the matter in their notice of a related case [Doc. 2]. Plaintiffs argued that assigning the case to Judge Herrera would conserve judicial resources because the case involves common questions of law and fact with a case that was previously assigned to her: Soto v. Governor of New Mexico (No. 1:20-cv-317-JCH-KK).

"In the District of New Mexico, a judge will, at times, transfer a case to another judge if the other judge has conducted a large amount of work on the case or on a related case.... Familiarity with legal issues, however, is not a basis upon which the Court will transfer a case." Stark-Romero v. Nat'l R.R. Passenger Co. , 763 F. Supp. 2d 1231, 1274 (D.N.M. Jan. 12, 2011).

In Soto , the petitioners requested release from pretrial detention imposed by the State of New Mexico out of fear of contracting COVID-19 while detained. Judge Herrera found that the petition did not "present any federal constitutional or legal basis, fails to state any claim for [ 28 U.S.C.] § 2241 relief, and must be dismissed." 2020 WL 1853050, at *4 (D.N.M. Apr. 13, 2020). Compared to this case, Soto involves different parties, different detention facilities, and does not meaningfully share any common questions of law. The only discernable similarity is that both cases concern requests for release from detention based on COVID-19, and that is not a sufficient reason to reassign this case to Judge Herrera. The Court also notes that the judgment in Soto was entered on April 20, 2020, so it cannot be consolidated with this case pursuant to Fed. R. Civ. P. 42. Finally, if Plaintiffs' argument that the instant case is related to the Soto case was the legal standard to determine whether one case is related to another case, then this would mean that every case filed in this Court seeking the release of someone because of COVID-19 should be assigned to Judge Herrera. That is not a viable option and is not going to happen in this case. Accordingly, Plaintiffs' request that the case be assigned to Judge Herrera is DENIED .

FACTUAL BACKGROUND

I. COVID-19

"COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death. There is no vaccine to prevent COVID-19. There is no known cure or anti-viral treatment for COVID-19 at this time." Doc. 1-3 (Declaration of Joseph J. Amon, Ph.D. MSPH ("Amon Decl.")) ¶ 6. The Centers for Disease Control and Prevention ("CDC") reports that, as of April 30, 2020, the United States has 1,031,659 COVID-19 cases and 60,057 deaths from it. CDC, Cases of COVID-19 in the United States, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited April 30, 2020). The New Mexico Department of Health ("NMDH") reports that, as of April 30, 2020, New Mexico has 3,411 COVID-19 cases and 123 deaths from it. NMDH, COVID-19 in New Mexico, https://cvprovider.nmhealth.org/public-dashboard.html (last visited April 30, 2020). Otero County, however, where the Otero County Processing Center is located and where Plaintiffs are detained, only has 5 COVID-19 cases and no deaths from it. Id.

II. Plaintiff Michel Fuentes Luis

Plaintiff Michel Fuentes Luis ("Fuentes") is a 33-year-old citizen of Cuba. Doc. 20-1 (Declaration of Deputy Field Officer Director Juan L. Acosta ("Acosta Decl.")) Fuentes ¶ 1. He illegally entered the United States on June 30, 2019. Id. ¶ 2. A few days later, United States Border Patrol issued him a notice to appear before an immigration judge and returned him to Mexico under the Migrant Protection Protocols (MPP).¹ Id. ¶ 4. On August 19, 2019, he appeared before an immigration judge in MPP removal proceedings. Id. On September 18, 2019, an immigration judge ordered him removed in absentia. Id. ¶ 6. He reentered the United States illegally on September 22, 2019. Id. ¶ 7. On September 25, 2019, he was convicted of illegal entry under 8 U.S.C. § 1325 in the United States District Court of the Western District of Texas and sentenced to time served. Id. ¶ 9. He was then transferred to Otero for removal proceedings. Id. ¶ 11. On March 5, 2020, an immigration judge declined to issue him a bond. Id. ¶ 14. His next removal proceeding is May 4, 2020. Id. ¶ 15.

Plaintiff Fuentes alleges he was diagnosed with asthma at age three and has "used an inhaler ever since." Doc. 1-7 (Declaration of Plaintiff Fuentes ("Fuentes Decl.")) ¶ 5. This medical condition, he claims, makes him "especially vulnerable to severe health complications if [he] get[s] sick with COVID-19." Id. ¶ 2. He was recently evaluated for potential release from Otero:

FUENTES has been evaluated for potential release, but he does not present a CDC recognized vulnerability for COVID-19. He had no documented history of asthma upon arrival and has not been diagnosed with asthma or respiratory difficulties. He did not have an inhaler in his possession when he was taken into [Enforcement and Removal Operations ("ERO") ] custody on September 27, [2019]. He has not subsequently requested or been issued an inhaler. He presents a heightened risk of flight given his background.

Acosta Decl., Fuentes ¶ 16. The CDC maintains a webpage where they publish the medical conditions they are aware of that potentially put people at higher risk for severe illness from COVID-19. In terms of asthma, the CDC considers only those with moderate to severe asthma to be at a higher risk. See CDC, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited April 30, 2020) ("People with chronic lung disease or moderate to severe asthma").

III. Plaintiff Luis Alfonso Mejia Velasquez

Plaintiff Luis Alfonso Mejia Velasquez ("Mejia") is a 46-year-old citizen of Honduras. Acosta Decl., Mejia ¶ 1. He illegally entered the United States on November 4, 2003. Id. ¶ 2. A month later,...