Umarbaev v. Lowe

453 F.Supp.3d 698

Kanat UMARBAEV, Petitioner

v.Warden Craig A. LOWE, Respondent

No. 1:20-cv-00413

United States District Court, M.D. Pennsylvania.

Filed April 9, 2020

Michael S. Henry, Salaman/Henry P.C., Philadelphia, PA, for Petitioner.

Joseph Terz, JoAnne M. Sanderson, U.S. Attorney's Office, Harrisburg, PA, for Respondent.

MEMORANDUM

Kane, Judge

Petitioner Kanat Umarbaev ("Petitioner") is currently confined at the Pike County Correctional Facility ("PCCF"), a detainee of the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"). On March 10, 2020, Petitioner, then proceeding pro se, initiated the above-captioned action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. No. 1), alleging that his continued detention by ICE had exceeded constitutional limits. Following an Order to show cause (Doc. No. 4), Respondent filed a response, contending that Petitioner's detention is lawful (Doc. No. 8). On March 30, 2020, counsel appeared on Petitioner's behalf. (Doc. No. 7.) On April 6, 2020, Petitioner filed a traverse supplementing his original § 2241 petition (Doc. No. 9) and a motion for expedited consideration and/or an emergency hearing raising an additional claim based upon the COVID-19 pandemic (Doc. No. 10). In an Order dated April 7, 2020, the Court directed Respondent to file a supplemental response addressing the arguments raised in Petitioner's traverse by 12:00 p.m. on April 8, 2020. (Doc. No. 11.) Respondent has done so. (Doc. No. 14.) Petitioner's § 2241 petition, therefore, is ripe for disposition. The Court will grant Petitioner's motion for expedited consideration (Doc. No. 10) to the extent that this Memorandum serves as the Court's expedited review of Petitioner's § 2241 petition (Doc. No. 1). For the reasons set forth below, Petitioner's § 2241 petition will be denied.

I. BACKGROUND

A. Petitioner's Immigration Proceedings

Petitioner is a native of the former Union of Soviet Socialist Republics ("USSR") and a citizen of Kyrgyzstan. (Doc. No. 8-1 at 12.) He was admitted to the United States on February 22, 2000, as a non-immigration visitor for pleasure. (Id. ) Petitioner had authorization to remain in the United States until August 22, 2000. (Id. ) On January 4, 2001, ICE issued a Notice to Appear, charging Petitioner with being removable pursuant to § 237(a)(1)(B) of the Immigration and Nationality Act ("INA") because he remained in the United States for a time longer than that permitted. (Id. ) At a hearing before an immigration judge, Petitioner conceded his removability as charged. (Id. )

Thereafter, Petitioner filed applications for asylum and withholding of removal. (Id. at 9.) On March 14, 2003, an immigration judge denied Petitioner's applications for relief and ordered him removed to Kyrgyzstan. (Id. ) On August 13, 2003, Petitioner was convicted in New York of driving while intoxicated ("DWI"). (Id. at 20.) On May 25, 2004, the Board of Immigration Appeals ("BIA") summarily dismissed Petitioner's appeal from the immigration judge's March 14, 2003 order because Petitioner had failed to file a brief or statement in support of his appeal. (Id. at 16.) On June 30, 2004, Petitioner sustained a second DWI conviction in New York. (Id. at 20.)

On August 28, 2019, a DHS Fugitive Operations Team apprehended and detained Petitioner. (Id. at 19.) ICE began taking steps to execute Petitioner's removal order, including requesting a travel document from the Embassy of Kyrgyzstan. (Id. at 4.) On October 8, 2019, Petitioner filed a motion to reopen his removal proceedings with the BIA. (Doc. No. 9 at 28-46.) Petitioner asserted that his recent conversion to Christianity, coupled with current conditions for Christians in Kyrgyzstan, warranted reopening of his proceedings and supported a new application for asylum. (Id. at 28.) On December 15, 2019, DHS received a travel document for Petitioner from the Embassy of Kyrgyzstan and scheduled Petitioner for removal on January 3, 2020. (Doc. No. 8-1 at 4.) On January 2, 2020, the BIA denied Petitioner's request for a stay of removal pending consideration of his motion to reopen, stating that there was little likelihood that his motion to reopen would be granted. (Id. at 28.)

On January 3, 2020, DHS transported Petitioner to the John F. Kennedy International Airport to place him on a commercial flight to Moscow, Russia, with a connecting flight to Bishkek, Kyrgyzstan. (Id. at 5.) That same day, Petitioner filed a petition for review, along with an emergency motion for a stay of removal, with the United States Court of Appeals for the Second Circuit. (Id. at 30-39.) DHS attempted to place Petitioner on the airplane at the final boarding call. (Id. at 5.) Petitioner, however, "actively and physically fail[ed] to comply with ICE's orders by ‘falling on the floor.’ " (Id. ) The removal attempt "was called off and [Petitioner] was removed from the airport and placed in the ICE transport vehicle." (Id. ) Moments later, the Second Circuit granted Petitioner's emergency motion for a stay of removal. (Id. at 42.)

On January 21, 2020, DHS conducted a custody review and determined that Petitioner would remain detained pending a decision on his petition for review. (Id. at 44.) The DHS observed that Petitioner's final order of removal had been in effect since May 25, 2004 and that Petitioner had been an ICE fugitive from 2004 until 2019. (Id. ) DHS also noted that Petitioner "ha[s] multiple convictions for driving under the influence." (Id. ) DHS concluded that Petitioner posed "a flight risk and a significant public threat." (Id. )

Petitioner filed the instant § 2241 petition on March 10, 2020. (Doc. No. 1.) On March 16, 2020, an immigration judge conducted a bond hearing for Petitioner pursuant to Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018). (Doc. No. 8-1 at 46.) The immigration judge denied Petitioner's request for a custody redetermination, concluding that Petitioner "remains a risk of danger to persons and property." (Id. ) On March 24, 2020, Petitioner filed a motion for reconsideration of the immigration judge's decision. (Doc. No. 9 at 234-40.) That same day, Petitioner, through emails by counsel, requested that ICE release him from custody to "seek medical treatment for symptoms that may be related to the coronavirus." (Id. at 244.) Petitioner's counsel asserted that Petitioner was "experiencing a sore throat, shortness of breath[,] and [a] runny nose." (Id. at 245.) Counsel also noted that Petitioner "suffers from high blood pressure, which has not been well controlled during his detention." (Id. ) On March 31, 2020, DHS denied Petitioner's request for release. (Id. at 244.) As of the date of this Memorandum and Order, Petitioner's motion to reopen is still pending before the BIA and his petition for review is still pending before the Second Circuit.

B. COVID-19 and Conditions at PCCF

Coronavirus Disease 2019 (COVID-19) "is an infectious disease caused by a newly discovered coronavirus." See Coronavirus Overview, WORLD HEALTH ORGANIZATION , https://www.who.int/health-topics/coronavirus#tab=tab_1 (last accessed Apr. 8, 2020). The COVID-19 virus "is spreading very easily and sustainably between people." See How COVID-19 Spreads, CENTERS FOR DISEASE CONTROL AND PREVENTION , https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last accessed Apr. 8, 2020). "Most people infected with the COVID-19 virus will experience mild to moderate respiratory illness and recover without requiring special treatment." Id. However, some infected individuals will experience severe illness, and certain groups, including "[o]lder people[ ] and those with underlying medical problems like cardiovascular disease, diabetes, chronic respiratory disease, and cancer" are at a higher risk of developing serious illness. See id. In the past few weeks, governments have imposed policies designed to curb the spread of COVID-19.

For example, businesses deemed not life sustaining have been closed in Pennsylvania since March 21, 2020. See Order of the Governor of the Commonwealth of Pennsylvania Regarding the Closure of All Businesses that Are Not Life Sustaining, https://www.scribd.com/document/452416027/20200319-TWW-COVID-19-Business-Closure-Order (Mar. 19, 2020). Additionally, on April 1, 2020, Governor Wolf issued an order for individuals to stay home that applies to the Commonwealth of Pennsylvania in its entirety through April 30, 2020. See Order of the Governor of the Commonwealth of Pennsylvania for Individuals to Stay at Home, OFFICE OF THE GOVERNOR OF PENNSYLVANIA , https://www.governor.pa.gov/wp-content/uploads/2020/04/20200401-GOV-Statewide-Stay-at-Home-Order.pdf (Apr. 1, 2020). Since the onset of the pandemic, "ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees." (Doc. No. 14-1 at 4.)

PCCF "has the capacity to house 375 detainees and has historically often operated near capacity." (Id. ) As of April 3, 2020, "there were only 250 combined inmates and detainees housed a[t] the facility." (Id. ) Upon admission, each detainee is screened for disabilities. (Id. ) During "intake medical screenings, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks." (Id. ) Those who "present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested." (Id. ) If a test is positive, that inmate remains isolated and treated and, if necessary, is referred to a local hospital. (Id. ) As of April 4, 2020, four (4) ICE detainees at PCCF have tested...