Hope v. Warden York Cnty. Prison

972 F.3d 310

Aaron HOPE; Iwan Rahardja; Jesus de la Pena; Rakibu Adam; Duc Viet Lam; Yelena Mukhina; Nahom Gebretnisae; Ismail Muhammed; Glenn Weithers; Konstantin Bugarenko; Brisio Balderas-Dominguez; Viviana Ceballos; Wilders Paul; Marcos Javier Ortiz Matos; Alexander Alvarenga; Armando Avecilla; Coswin Ricardo Murray; Edwin Luis Crisostomo Rodriguez; Eldon Bernard Briette; Dembo Sannoh; Jesus Angel Juarez Pantoja; Alger Francois

v.WARDEN YORK COUNTY PRISON; Warden Pike County Correctional Facility; Director Philadelphia Field Office Immigration and Customs Enforcement; Director United States Immigration and Customs Enforcement; Secretary United States Department of Homeland Security, Appellants

No. 20-1784

United States Court of Appeals, Third Circuit.

Argued June 18, 2020

Opinion filed: August 25, 2020

David Byerley, United States Department of Justice, Office of Immigration Litigation, P.O. Box 868, Ben Franklin Station, Washington, DC 20044, Jeffrey S. Robins, United States Department of Justice, Office of Immigration Litigation, Room 6040, P.O. Box 878, Washington, DC 20044, Scott G. Stewart [Argued], United States Department of Justice, 950 Pennsylvania Ave., N.W., Washington, DC 20530, Counsel for Appellants

Lawrence J. Joseph, Suite 700-1A, 1250 Connecticut Avenue, N.W., Washington, DC 200, Counsel for Amicus Immigration Reform Institute in favor of Appellants

Eunice H. Cho, David C. Fathi, American Civil Liberties Union, 915 15th St., N.W., 6th Floor, Washington, DC 20003, Carla G. Graff, Kelly A. Krellner, Dechert, 2929 Arch Street, 18th Floor, Cira Centre, Philadelphia, PA 19104, Stephen B. Kang, Cecillia D. Wang, American Civil Liberties Union Foundation, 39 Drumm Street, San Francisco, CA 94111, Erika B. Nyborg-Burch, Vanessa Stine, Muneeda S. Talukder, American Civil Liberties Union of Pennsylvania, P.O. Box 60173, Philadelphia, PA 19106, Witold J. Walczak, Esq. [Argued], American Civil Liberties Union, P.O. Box 23058, Pittsburgh, PA 15222, Counsel for Appellees

Kristin A. Macleod-Ball, American Immigration Counsel, 1318 Beacon Street, Suite 18, Brookline, MA 02446, Counsel for Amicus American Immigration Council in favor of Appellees

Susanna M. Buergel, Paul Weiss Rifkind Wharton & Garrison, 1285 Avenue of the Americas, New York, NY 10019, Counsel for Amicus Robert L. Cohen, M.D., Joe Goldenson, M.D., Michael Puisis, D.O., and Brie Williams, M.D., M.S., in favor of Appellees

Before: SMITH, Chief Judge, HARDIMAN and SCIRICA, Circuit Judges.¹

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

On April 7, 2020, the United States District Court for the Middle District of Pennsylvania ordered the immediate release of twenty-two immigration detainees (collectively, Petitioners) from the York County Prison (York) and Pike County Correctional Facility (Pike) amidst the COVID-19² pandemic. It did so ex parte , by granting Petitioners’ motion for temporary restraining order (TRO) without affording the Government an opportunity to be heard. After staying its April 7, 2020 order, the District Court again mandated Petitioners’ release on April 10, 2020. The Government appealed both orders. As we explained in Hope v. Warden York County Prison , 956 F.3d 156, 161–62 (3d Cir. 2020) ( Hope I ), the District Court's orders—which purported to be TROs—were in effect mandatory preliminary injunctions. Having determined in Hope I that we have jurisdiction, we now consider the merits of the Government's appeal.

I

This case followed closely on the heels of a similar one decided by the District Court. See Thakker v. Doll , 451 F. Supp. 3d 358 (M.D. Pa. Mar. 31, 2020). In Thakker , immigration detainees sought release from their detention in York, Pike, and a third facility. The District Court held the detainees were likely to succeed on their claim that their detention deprived them of substantive due process because of their advanced ages and medical histories. Id. at 371–72. So it ordered their release.

Three days after the District Court issued its order in Thakker , Petitioners filed their "Verified Petition for Writ of Habeas Corpus and Complaint for Emergency Injunctive Relief" seeking release from custody and alleging they were at risk of serious harm from COVID-19 while detained at York and Pike. They filed a joint habeas petition even though they: (1) vary in age from 28 to 69, with only one of them older than 65; (2) have divergent health conditions; (3) were detained for various reasons; (4) have unique criminal histories; (5) have individual flight risk profiles; and (6) have diverse home and family situations. Despite those distinguishing characteristics, the petition alleged they are "united by the fact that they are over age 65 and/or adults who have a serious pre-existing medical condition" and that "the United States Centers for Disease Control has determined [their conditions] put[ ] them at significantly higher risk of severe disease and death if they contract COVID-19." App. 28. The petition further averred that conditions at York and Pike place Petitioners at higher risk to contract COVID-19 because "risk mitigation is impossible" there. App. 79. They claimed their confinement deprives them of substantive due process because it constitutes punishment and because Respondents are deliberately indifferent to their serious medical needs. According to Petitioners, only release will rectify their unconstitutional confinement.

Petitioners provided a general description of their health conditions and little detail about their immigration circumstances. The petition stated that some are lawful permanent residents, while others seek adjustment of status through an ill spouse or because they have lived in this country since they were children. The petition described the criminal records and histories for very few of the Petitioners and did so summarily. Federal law required some to be detained while others were detained at the discretion of the Secretary of the Department of Homeland Security or an immigration judge. See 8 U.S.C. § 1226(a), (c) ; and 8 C.F.R. §§ 1003.19, 1236.1(c) ; see also Nielsen v. Preap , ––– U.S. ––––, 139 S. Ct. 954, 958–59, 203 L.Ed.2d 333 (2019).

The petition was accompanied by a motion for TRO, but Petitioners did not request ex parte relief. In fact, they emailed their filings to counsel for the Government and asked the Court to "immediately schedule a hearing." App. 86. Even though Petitioners’ counsel promptly (and appropriately) engaged opposing counsel in the adversary process, the District Court entered its April 7 order ex parte without a hearing, relying heavily on its prior findings and decision in Thakker .

The April 7 order commanded the Government to immediately release Petitioners "on their own recognizance." App. 14. It also required Petitioners to self-quarantine for fourteen days after their release. Id. The terms of the injunction were to expire on April 20, 2020 at 5:00 p.m. Id. Finally, the Court ordered the Government—from which it had not yet heard—to show cause "why the [order] should not be converted into a preliminary injunction." Id.

Less than five hours after the April 7 ex parte order was entered on the docket, the Government entered its appearance, filed a motion to stay the immediate release order, and sought reconsideration based on the declaration of Assistant Field Office Director Joseph Dunn. The District Court granted a temporary stay of its ex parte order and ordered Petitioners to respond to the motion for reconsideration, which they did on April 8. That same day, the Government responded to the petition and motion for TRO. Also on April 8, the Court scheduled a status conference for April 9, which it apparently held off the record. On April 10, the Government filed another declaration of Director Dunn.

Later on April 10, and again without holding a hearing and without discussing the Government's response in opposition to Petitioners’ filings, the District Court entered an order: (1) denying reconsideration of its April 7 order; (2) lifting the temporary stay; and (3) reiterating the relief provided by the April 7 order, again mandating the release of Petitioners that day. App. 20–21. Like the April 7 order, the April 10 order instructed Petitioners to self-quarantine for fourteen days after their release. App. 21.³

The April 10 order purported to expire on April 20, 2020, but contradicted itself in two ways. It extended the "release period ... until such time as the COVID-19 state of emergency as declared by the Governor of the Commonwealth of Pennsylvania is lifted, or by further Order of this Court." Id. at 21. And it terminated the release period "immediately if a Petitioner absconds." Id.

The April 10 order also imposed new conditions on both parties, stating:

a. This Order requires Petitioners to comply with all Executive Orders ... as well as national, state and local guidance regarding staying at home, sheltering in place, and social distancing;

b. This Order does not prevent the government from taking Petitioners back into custody should they commit any further crimes or otherwise violate the terms of their release;

c. The Petitioners shall report their whereabouts once per week to their attorneys , who in turn shall report to the Respondents if a Petitioner has absconded ;

d. The Petitioners must appear at all hearings pertaining to their removal proceedings, and in the event that they are subject to a final order of deportation for which arrangements have been finalized within the period of this Order, they shall fully comply with the said order of deportation and all instructions pertaining thereto; and

e. Respondents may impose other reasonable nonconfinement terms of supervision that would not require Petitioners to violate national, state and local guidance regarding staying at home, sheltering in place, and social distancing.

App. 21–22 (emphases added).

The Government timely appealed the April 7 and April 10 orders.

II

The District Court had...