Pimentel-Estrada v. Barr, CASE NO. C20-495 RSM-BAT

458 F.Supp.3d 1226

Rafael PIMENTEL-ESTRADA, Petitioner,

v.William P. BARR, et al., Respondents.

CASE NO. C20-495 RSM-BAT

United States District Court, W.D. Washington, at Seattle.

Signed April 28, 2020

Hakeem Ishola, Pro Hac Vice, Ishola Law Group LLC, West Valley City, UT, Aaron Korthuis, Matt Adams, Northwest Immigrant Rights Project, Seattle, WA, for Petitioner.

US Attorney Habeas, for Respondents.

ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Petitioner Rafael Pimentel-Estrada, Sr., a native and citizen of Mexico, is detained by U.S. Immigration and Customs Enforcement ("ICE") at the Northwest ICE Processing Center ("NWIPC") in Tacoma, Washington. Over the last two months the world's understanding of the grave risks posed by the COVID-19 pandemic has continued to evolve. Petitioner, in turn, has learned that his age and medical history put him at a higher risk of serious illness or death if he contracts the virus. Petitioner is concerned that Respondents¹ are not taking adequate steps to protect him from the serious risks of COVID-19 and are thereby violating his constitutional rights to reasonable safety and freedom from punishment while civilly detained.

Currently before the Court is Petitioner's motion for a temporary restraining order ("TRO") directing his immediate release from custody. Dkt. #19 (Mot.). Respondents oppose the motion. Dkt. #33 (Opp.). At the direction of the Court, Petitioner filed a reply brief and supplemental evidence. Dkt. #37. Having considered the parties’ submissions, the balance of the record, and the governing law, the Court GRANTS Petitioner's motion.²

II. BACKGROUND

A. Petitioner's Background

Petitioner became a lawful permanent resident of the United States in 1996 and has lived in this country since. Dkt. #33-2 (Bostock Decl.) at ¶ 43. He is 66 years old, a father and grandfather, and has previously owned several successful businesses. Dkt. #30 (Pimentel Jr. Decl.) at ¶¶ 1–3, 32. In 2013, when Petitioner found himself in trouble with the law, he took responsibility by pleading guilty to possessing approximately one pound of methamphetamine with the intent to distribute. Bostock Decl. at ¶ 44. He was sentenced to 144 months in prison, but his sentence was later reduced to 120 months pursuant to 18 U.S.C. § 3582(c)(2). Id.

While serving his sentence, Petitioner took advantage of the educational opportunities available to him and gained privileged rights within the prison. Pimentel Jr. Decl. at ¶ 16; Dkt. #31 (Y. Pimentel Decl.) at ¶ 5. Because of his behavior, he was ultimately classified as a low-level risk offender and transferred to a low-level prison satellite camp. Pimentel Jr. Decl. at ¶ 17. In 2018, Petitioner was released to a half-way house for six months where he complied with all rules and regulations and ultimately was granted home confinement in January 2019. Id. at ¶¶ 5–9, 19–24; Y. Pimentel Decl. at ¶ 6. Petitioner moved in with his son, daughter-in-law, and young grandchildren in Utah, where he continued to follow all expectations placed upon him and began to reform connections with his family. Pimentel Jr. Decl. at ¶¶ 25–31; Y. Pimentel Decl. at ¶¶ 6–7.

In May 2019, while attending a required probationary appointment, Petitioner was taken into ICE custody and transferred to the NWIPC. Pimentel Jr. at ¶ 13; Bostock Decl. at ¶ 45. ICE initiated removal proceedings against him due to his controlled substances violations. Bostock Decl. at ¶ 45. An Immigration Judge denied his applications for relief and ordered him removed on August 30, 2019. Id. at ¶ 47. His appeal to the Board of Immigration Appeals was dismissed on February 6, 2020. Id. at ¶ 48. He then sought review before the Ninth Circuit Court of Appeals, which stayed his removal. Id. at ¶ 49; Pimentel-Estrada v. Barr , No. 20-70384 (9th Cir.). His petition for review remains pending.

On March 26, 2020, Petitioner filed an Emergency Motion to Secure Release pending resolution of his petition for review, arguing that he should be released considering the threat posed by COVID-19. See Dkt. #1. After the motion was fully briefed, the Ninth Circuit construed the motion as a petition for writ of habeas corpus and transferred the matter to this Court for expedited consideration. Dkt. #1-1. On April 3, 2020, Petitioner filed a notice of intent to file an amended habeas petition and to supplement his emergency motion. Dkt. #12.

On April 14, 2020, Petitioner filed an amended petition asserting that his continued detention violates his Fifth Amendment substantive due process rights because of the threat to his health and safety posed by COVID-19. Dkt. #18 (Am. Pet.). The same day, he filed the pending motion for TRO seeking his immediate release. See generally Mot. Petitioner presents evidence that because of his age and medical history, including hypertension and recurrent respiratory infections, he is at high risk of serious illness or death should he be exposed to COVID-19. See, e.g. , Dkt. #23 (Greifinger Decl.) at ¶ 34. Should Petitioner be released, he and his family plan to have him stay with his son and daughter-in-law in Salt Lake City, Utah. Mot. at 12–13.

B. The Coronavirus and COVID-19

COVID-19, an infection caused by the novel zoonotic coronavirus SARS-CoV-2 (the "virus" or "coronavirus") has fractured lives and transformed life in incredible ways. As the virus has spread throughout the world, many governments have been caught flat-footed, necessitating drastic actions to tamp the coronavirus's rampant spread. Federal, state, and local governments have declared states of emergency, have instituted "stay home" orders, and have implemented widespread "social distancing measures." See, e.g. , Proclamation No. 9994, 85 Fed. Reg. 15,337 (March 13, 2020) (finding and proclaiming "that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020"); WASH. GOVERNOR'S PROCLAMATION 20-05 (Feb. 29, 2020) (declaring a state of emergency in Washington State), available at https://www.governor.wa.gov/office-governor/official-actions/proclamations. Even this Court was forced to drastically alter its operations to slow the spread of the virus and save lives. See, e.g. , W.D. WASH. GEN. ORDER NO . 02-20 (March 17, 2020) (closing Seattle and Tacoma Courthouses and continuing all trials scheduled to occur before June 1, 2020); W.D. WASH. GEN. ORDER NO . 07-20 (Apr. 14, 2020) (continuing all in-person proceedings scheduled to occur before July 1, 2020).

Despite these drastic measures, the virus has become a global pandemic, spreading "easily and sustainably within communities[,] ... primarily by person-to-person contact through respiratory droplets produced when an infected person coughs or sneezes." Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17060, 17062 (Mar. 26, 2020) (internal citations omitted). The virus also spreads "through contact with surfaces or objects contaminated with these droplets." Id. There is evidence that the virus can be passed on while an individual is asymptomatic. Dkt. #21 (Golob Decl.) at ¶ 6. Once infected, 2-14 days may pass before an individual develops symptoms and some infected individuals may never develop symptoms. Id.

Exposure to the coronavirus causes COVID-19, an infection that has so far infected more than 3 million people globally and has killed more than 208,000. COVID-19 is ten times deadlier than a severe seasonal influenza. Id. at ¶ 4. While some individuals may have mild or no symptoms, many require intensive medical care including "supplemental oxygen, positive pressure ventilation, and in extreme case, extracorporeal mechanical oxygenation." Id. at ¶ 5. There currently are no cures, vaccines, or accepted treatments for COVID-19, and the only effective way to protect vulnerable people from "injury or death from COVID-19 [is] to prevent individuals from being infected with the COVID-19 virus." Id. at ¶ 10. Even where COVID-19 is not fatal, it can "severely damage the lung tissue, requiring an extensive period of rehabilitation and in some cases a permanent loss of respiratory capacity" or other permanent injuries. Id. at ¶ 9.

While public health recommendations have changed frequently, the U.S. Centers for Disease Control and Prevention ("CDC") has been consistent in advising that certain populations are at a particularly high risk both for contracting the virus and becoming seriously ill. See CDC, Coronavirus Disease 2019-COVID, 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 Apr. 27, 2020) (hereinafter "CDC Guidelines"). The populations at heightened risk include individuals over the age of 65, those in nursing homes or long-term care facilities, and those with "underlying medical conditions, particularly if not well controlled." Id. Medical conditions of concern include lung disease, asthma, serious heart conditions, severe obesity, diabetes, liver disease, ongoing kidney dialysis, and those causing individuals to be immunocompromised.³ Id. "In the highest risk populations, the case fatality rate is about 15%." Golob Decl. at ¶ 4.

To protect vulnerable populations and slow the spread of the coronavirus, the CDC and other public health experts have focused on the need for social distancing and hand hygiene. Dkt. #23 (Greifinger Decl.) at ¶ 10; Dkt. #22 (Stern Decl.) at ¶ 3 ("The only way to control the virus is to use preventive strategies, including social distancing.").

C. COVID-19 in Detention Facilities

Nursing homes, cruise ships, and detention facilities, by their very nature, make it incredibly difficult, if not impossible, for individuals to practice both hand hygiene and social distancing. The confined and crowded...