Bataineh v. Lundgren

KHALED BATAINEH, Petitioner, v. WESLEY LUNDGREN, et al., Respondents.

CASE NO. 20-3132-JWL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

July 1, 2020

MEMORANDUM AND ORDER

This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner is detained at the Chase County Jail in Cottonwood Falls, Kansas ("CCJ"), pending removal proceedings. Petitioner raises four grounds for relief: 1) that his mandatory detention violates procedural due process in light of his viable legal defenses to removal; 2) his prolonged detention violates procedural due process; 3) his detention is in violation of substantive due process under the Fifth Amendment; and 4) he is being subjected to unconstitutional conditions of confinement due to the COVID-19 pandemic. Petitioner seeks immediate release or a bond hearing before an Immigration Judge within 15 days to consider release on bond or conditional parole. (Doc. 1, at 20.)

I. Background¹

Petitioner is a native and citizen of Jordan. (Doc. 4-1, at 2) (Declaration of Deportation Officer Charles Wekamp, ¶ 5) (hereinafter "Wekamp Decl."). On August 10, 2009, after Petitioner had attained permanent legal resident status, Petitioner was convicted in the state of Illinois of two counts of the offense of "Manufacture/Deliver Cannabis," in violation of Chapter 720, Illinois Compiled Statutes 550/5-C, a class 4 felony under Illinois law. SeeWekamp Decl., ¶¶ 9, 24; People of the State of Illinois v. Khaled M.R. Bataineh, Case No. 2008CF002470 (Docket), Attachment B; 720 ILCS 550/5(c) (West 1997).

Removal Proceedings

On June 12, 2019, Petitioner presented for inspection at the Chicago O'Hare International Airport, bearing a Jordanian passport and a validly issued I-551, Permanent Resident Card. Wekamp Decl., ¶ 6. Customs and Border Protection ("CBP") referred Petitioner to secondary inspection for status verification and a criminal history review by a CBP officer. Wekamp Decl., ¶ 7. The inspection was deferred so that Petitioner's criminal history could be verified and a determination made regarding whether Petitioner was inadmissible under 8 U.S.C. § 1182(a)(2)(A) or deportable under 8 U.S.C. § 1227(a)(2)(A). Wekamp Decl., ¶ 8.

After receiving court documents from the Circuit Court of Will County, Illinois, confirming the two convictions under 720 ILCS 550/5(c), Petitioner was served with (1) a Form I-200, Warrant of Arrest, (2) a Form I-286, Notice of Custody Determination, and (3) a Form I-862, Notice to Appear ("NTA"). Wekamp Decl., ¶¶ 9, 11. On the same day, July 17, 2019, ERO took custody of Petitioner, placing him in the Pulaski County Detention Center in Ullin, Illinois. Wekamp Decl., ¶ 13.

On or about July 26, 2019, the ICE Office of the Principal Legal Advisor ("OPLA") filed the NTA with the Chicago Immigration Court, beginning removal proceedings. Wekamp Decl., ¶ 25. Just five days later, Petitioner appeared before the Immigration Judge, represented by counsel. Wekamp Decl., ¶ 26. Petitioner represented that he was seeking post-conviction relief relating to his 2009 conviction in the Circuit Court of Will County, Illinois, and removal proceedings were continued to September 9, 2019. Wekamp Decl., ¶ 26. On September 9, 2019, Petitioner again appeared in Immigration Court and, through counsel, informed the ImmigrationCourt that documents related to the post-conviction relief sought by Petitioner had been filed; removal proceedings were again continued to October 23, 2019. Wekamp Decl., ¶ 27.

On October 23, 2019, Petitioner appeared for a third time in Immigration Court, again represented by counsel. Wekamp Decl., ¶ 28. At the October 23, 2019 hearing, the Immigration Judge sustained the charge of inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(II) contained on the NTA, and Petitioner requested a three-month continuance of the removal proceedings. Wekamp Decl., ¶ 28. At that time, Petitioner's request for post-conviction relief remained pending in the Circuit Court of Will County, Illinois. Wekamp Decl., ¶ 28. The Immigration Judge declined to grant the full three-month continuance, but continued proceedings to December 20, 2019—a 58 day continuance. Wekamp Decl., ¶ 28.

On December 20, 2019, Petitioner appeared in Immigration Court, and submitted an application for relief from removal. Wekamp Decl., ¶ 29. The Immigration Judge continued the removal case to January 17, 2020. Wekamp Decl., ¶ 29. At the January 17, 2020 hearing, the Court was informed that the Circuit Court of Will County, Illinois had denied Petitioner's request for post-conviction relief. Wekamp Decl., ¶ 32. The Immigration Judge set the final hearing on Petitioner's request for relief from removal for March 3, 2020. Wekamp Decl., ¶ 32.

After hearing testimony on March 3, 2020, the Immigration Judge denied Petitioner's request for relief from removal and ordered Petitioner removed to Jordan, terminating his Lawful Permanent Resident status. Wekamp Decl., ¶ 34. Petitioner was informed of his right to appeal this decision within 30 days. Wekamp Decl., ¶ 34. Petitioner appealed to the BIA and his appeal is currently pending with briefing due June 30, 2020. (Doc. 10-1, at 2.)

Petitioner's Medical Status

Petitioner arrived at the CCJ in Cottonwood Falls, Kansas, his current location, onApril 8, 2020. Wekamp Decl., ¶ 37. Petitioner's transfer to the CCJ occurred as part of an attempt to minimize the spread of COVID-19, and was initiated by Chicago-ERO (Enforcement and Removal Operations) prior to the release of the ERO COVID-19 Pandemic Response Requirements ("PRR") on April 10, 2020. Wekamp Decl., ¶¶ 37, 39.² The PRR sets forth expectations and assists ICE detention facility operators to sustain detention operations, while also mitigating risk from COVID-19. As part of this dynamic guidance, ERO's Assistant Director of Field Operations, Peter Berg, issued expanded guidance directing the ERO field offices to review the custody of subgroups of detainees to determine whether the alien's COVID-19 risk outweighed continued detention. The delineated subgroups included: (1) pregnant detainees or those who have delivered within the prior two-weeks; (2) detainees over 60 years old; and (3) detainees having any chronic illness that may make them immune-compromised, including but not limited to, blood disorders, chronic kidney disease, compromised immune systems, endocrine disorders, metabolic disorders, heart disease, lung disease, and/or neurological or neurodevelopmental disorders. Wekamp Decl., ¶ 39.

During his medical screenings when booked into ICE facilities, Petitioner claimed to have a plate and screws in his right ankle and indicated that he took three medications for anxiety, depression, and high cholesterol, respectively—Petitioner did not indicate that he suffered from any other medical conditions. Wekamp Decl., ¶ 40. Based on the information known to ICE, Petitioner does not have a medical condition identified in one of the sub-groups identified in the PRR. Wekamp Decl., ¶¶ 39, 41. Nor do ICE records reflect Petitioner as having any medical or psychiatric diagnoses implicated in the class or subclass defined in the classaction identified in Fraihat et al. v. U.S. Immigration & Customs Enforcement, et al., Case No. 19-1546 (C.D. Cal.). Wekamp Decl., ¶¶ 42-43.

Petitioner also received a physical within the first 14 days of his arrival at the CCJ. (Doc. 4-3, at 10) (Declaration of Chase County Jail Administrator Larry Sigler, ¶ 43) (hereinafter "Sigler Decl."). The CCJ has received no information or indication to suggest Petitioner suffers from severe obesity, colorectal bleeding, or hypertension. Sigler Decl., ¶ 43. Petitioner's blood sugar levels were within the regular range during his physical and he does not have a diagnosis of diabetes. Sigler Decl., ¶ 43. Petitioner has a diagnosis of hyperlipidemia (high cholesterol), and due to this condition has his blood pressure checked daily to ensure normal blood pressure readings—a precautionary measure taken for all inmates with high cholesterol. Sigler Decl., ¶ 43.

The CCJ is in compliance with the guidance issued by ICE ERO to detention facilities that house ICE detainees, including mandatory reporting and identification requirements relating to detainees that meet the CDC's identified populations potentially being at higher risk for serious illness from COVID-19. Sigler Decl., ¶¶ 40-41. Petitioner does not fall within the CDC's identified populations potentially being at higher-risk for serious illness from COVID-19 because he is under the age of 65 and has not been diagnosed with any underlying medical conditions noted by the CDC as being higher risk for COVID-19. Sigler Decl., ¶ 42.

Conditions at the CCJ

The CCJ has an Intergovernmental Services Agreement ("IGSA") with ICE ERO, and has housed immigration detainees since 2008. Sigler Decl., ¶ 9. The CCJ is a correctional facility located in Chase County, Kansas, capable of housing 150 inmates. Sigler Decl., ¶ 8. The CCJ currently houses 70 inmates, which represents approximately 47% of the CCJ's capacity.Sigler Decl., ¶ 8. The number of inmates housed at the CCJ has been reduced since April 15, 2020, in an effort to limit inmate population due to the COVID-19 pandemic, and it is not anticipated that the inmate population will increase significantly in the foreseeable future. Sigler Decl., ¶ 8. The CCJ has reduced the number of other counties from which it accepts inmates and now only accepts inmates from Morris County, Kansas, in addition to those inmates from Chase County. Sigler Decl., ¶ 11. Of the 70 inmates currently housed at the CCJ, 65 are immigration detainees and 5 are county inmates. Sigler Decl., ¶ 10.

As of May 25, 2020, the State of Kansas has reported 9,218 cases of COVID-19 in the state, resulting in 188 deaths.³ Sigler Decl., ¶ 4. Chase County, Kansas has seen only four positive cases of COVID-19 within the county, which equates to a case rate of 1.51 cases per 1,000 pe...