1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABDUL REHMAN, Case No.: 20-cv-1741-WQH-BLM

12 Petitioner,

ORDER

13 v. 14 SIXTO MORENO, Facility Administrator, Imperial Regional 15 Detention Center, MTC; et al., 16 Respondents. 17 HAYES, Judge: 18 The matters before the Court are the Petition for Writ of Habeas Corpus pursuant to 19 28 U.S.C. § 2241 filed by Petitioner Abdul Rehman (ECF No. 1) and the Motion to File 20 Documents Under Seal filed by Respondents (ECF No. 4). 21

I. PROCEDURAL BACKGROUND

22 On September 4, 2020, Petitioner Abdul Rehman filed a Petition for Writ of Habeas 23 Corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1). Petitioner alleges that he is a citizen of 24 Pakistan and is an immigration detainee at the Imperial Regional Detention Facility 25 (“IRDF”). Petitioner alleges that his detention has been unlawfully prolonged and places 26 him at a severe risk of exposure to COVID-19 in violation of his substantive and procedural 27 due process rights under the Fifth Amendment of the United States Constitution; the 28 1 Administrative Procedure Act, 5 U.S.C. §§ 702(2)(A) and 706(1); and international law. 2 Petitioner requests that the Court order Petitioner’s immediate release from custody. 3 On September 8, 2020, the Court ordered Respondents to show cause why the 4 Petition should not be granted by filing a written return. (ECF No. 2). On September 22, 5 2020, Respondents filed a Return to the Petition (ECF No. 3) and a Motion to File 6 Documents Under Seal (ECF No. 4). On October 12, 2020, Petitioner filed a Traverse. 7 (ECF No. 8). 8 II. FACTS 9 a. Petitioner’s Immigration History 10 Petitioner is twenty years old and is a citizen of Pakistan. (Record of 11 Deportable/Inadmissible Alien, ECF No. 3-2 at 1). On July 22, 2019, Petitioner was 12 apprehended approximately 300 yards north of the United States/Mexico border, near the 13 Calexico Port of Entry. (Id. at 2). The Department of Homeland Security (“DHS”) 14 determined that Petitioner was inadmissible and ordered Petitioner removed from the 15 United States. (Notice and Order of Expedited Removal, ECF No. 3-2 at 6). Petitioner 16 requested asylum. 17 On August 14, 2019, Petitioner was taken into U.S. Immigration and Customs 18 Enforcement (“ICE”) custody at IRDF pending removal to Pakistan. On September 18, 19 2019, an asylum officer conducted a credible fear interview. On October 24, 2019, the 20 asylum officer determined that Petitioner did not have a credible fear of persecution or 21 torture. Petitioner requested review by an immigration judge. (See Decision to Continue 22 Detention, ECF No. 3-2 at 20). On October 31, 2019, the immigration judge determined 23 that there was a possibility that Petitioner could establish eligibility for asylum and that 24 Petitioner established a fear of persecution or torture. The immigration judge vacated 25 DHS’s expedited removal order and commenced regular removal proceedings. (Order of 26 the Immigration Judge, ECF No. 3-2 at 7). Petitioner’s master calendar hearing was 27 continued seven times—six times at the request of Petitioner and one time at the request of 28 the government. Petitioner has an upcoming individual hearing on December 9, 2020. 1 After continuances requested by Petitioner and the government, Petitioner was given 2 a bond hearing on March 9, 2020. (Bond Decision, ECF No. 3-2 at 12). On March 12, 3 2020, the immigration judge denied Petitioner’s request for bond, finding that Petitioner 4 failed to meet his burden to “assuage[e] the general concerns raised by evidence which 5 shows he was smuggled by a group which willingly transports individuals involved with 6 terrorism” and establish that he is not a threat to national security. (Id. at 15). The 7 immigration judge further determined that Petitioner is “an extreme flight risk such that no 8 amount of bond would mitigate.” (Id. at 15-16). 9 On July 29, 2020, ICE reviewed Petitioner’s custody and determined that Petitioner 10 failed to “demonstrate[ ] or provide[ ] enough information that will mitigate [his] flight 11 risk,” and Petitioner would remain in custody pending removal. (Decision to Continue 12 Detention, ECF No. 3-2 at 20). On July 30, 2020, Petitioner filed a motion for a custody 13 redetermination hearing. (ECF No. 8-3 at 28-32). On August 3, 2020, the immigration 14 judge denied the motion, finding that there was no change in circumstances since the March 15 9 bond hearing that would warrant a redetermination hearing. (Order of the Immigration 16 Judge, ECF No. 3-2 at 21). Petitioner did not appeal. On September 15, 2020, ICE again 17 reviewed Petitioner’s custody and determined that Petitioner failed to “demonstrate[ ] or 18 provide[ ] enough information that will mitigate [his] flight risk,” and Petitioner would 19 remain in custody pending removal. (Decision to Continue Detention, ECF No. 3-2 at 25). 20 b. Petitioner’s Medical History and Conditions at IRDF 21 Respondents submitted over 600 pages of Petitioner’s IRDF medical records. 22 Petitioner has been seen nearly a hundred times by medical staff at IRDF, mostly for 23 complaints of gastrointestinal pain, chest pain, and shortness of breath. At the intake 24 screening on August 14, 2019, Petitioner did not indicate any history of asthma or breathing 25 problems. (ECF No. 5-4 at 148). For the first time on April 16, 2020, Petitioner presented 26 with shortness of breath and told the registered nurse that he was using a fellow detainee’s 27 inhaler. The registered nurse noted that Petitioner has a history of asthma. (ECF No. 5-3 at 28 26). After April 16, 2020, Petitioner repeatedly presented with chest pain and shortness of 1 breath. (See, e.g., ECF No. 5-2 at 48, 138, 140, 147). On July 16, 2020, a medical doctor 2 diagnosed Petitioner with “mild, intermittent asthma, uncomplicated.” (Id. at 19). The 3 medical doctor noted that Petitioner’s asthma is “not considered to be a risk of covid-19.” 4 (Id. at 20). Petitioner has been provided medication for his gastrointestinal concerns and 5 asthma, has been prescribed a special diet, and has been given advice about foods to avoid. 6 Since the beginning of the COVID-19 pandemic, IRDF has implemented policies 7 and procedures to protect detainees from COVID-19 exposure and infection. (Marreno 8 Decl., ECF No. 3-5 ¶¶ 10-12). Measures include staff education and training, detainee 9 education, screening of staff and other visitors to IRDF, increased and enhanced cleaning 10 and sanitation, provision of hygiene supplies, social distancing when possible, staff and 11 detainee use of personal protective equipment, COVID-19 screening of all incoming 12 detainees and quarantining when possible, suspension of social visits, no-contact legal 13 visits, and isolation and quarantine of detainees with suspected or known cases of COVID- 14 19. (Id. ¶¶ 13-96). 15 IRDF has significantly reduced its detainee population. IRDF has the capacity to 16 house 782 detainees. As of September 16, 2020, there were only 272 detainees at IRDF, 17 approximately 34.78% of total capacity. (Id. ¶ 97). Of the thirteen units currently used for 18 housing at IRDF, capacity rates range from 14.06% to 57.81%, making social distancing 19 possible. (Id. ¶ 101). As of September 16, 2020, 195 detainees had been tested for COVID- 20 19. Only seven detainees have tested positive. Two tests were pending as of September 16, 21 2020. No IRDF detainees have died from COVID-19, and the last positive COVID-19 test 22 for an ICE detainee assigned to population housing was on May 29, 2020. (Id. ¶ 98). 23 III. DISCUSSION 24 a. Detention During the COVID-19 Pandemic 25 Petitioner asserts that his detention at IRDF during the COVID-19 pandemic 26 amounts to punishment and violates his substantive due process rights and rights to life and 27 health under international law. Petitioner contends that he has a heightened risk of severe 28 illness from COVID-19 due to asthma. Petitioner contends that Respondents have failed to 1 provide adequate medical care and have failed to take precautions to prevent the spread of 2 COVID-19.1 3 Respondents contend that Petitioner fails to show that the steps Respondents have 4 taken to prevent and treat COVID-19 at IRDF are objectively unreasonable. Respondents 5 contend that Petitioner’s medical records demonstrate that he has received adequate 6 medical treatment and directly refute his allegations that he is at a high risk of severe illness 7 from COVID-19. 8 To succeed on a habeas petition, a petitioner must show that he is “in custody in 9 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 10 2241(c)(3). Individuals detained pursuant to immigration violations are civil detainees. 11 Zadvydas v. Davis, 533 U.S. 678, 690 (2001). “[U]nder the Due Process Clause, a detainee 12 may not be punished prior to an adjudication of guilt in accordance with due process of 13 law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). The government violates the Due Process 14 Clause when a civil detainee is “subjected to conditions that ‘amount to punishment.’” 15 Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004) (quoting Bell, 441 U.S. at 536). A 16 petitioner can demonstrate punitive conditions by showing that the challenged condition 17 is: (1) expressly intended to punish; (2) not rationally related to a legitimate government 18 objective; or (3) excessive in relation to a legitimate government objective. See Kingsley 19 v. Hendrickson, 576 U.S. 389, 398 (2015); see also Jones, 393 F.3d at 933-34 (holding that 20 conditions are punitive where they are “employed to achieve objectives that could be 21 accomplished in so many alternative and less harsh methods” (citation omitted)). 22 In addition, “when the State takes a person into its custody and holds him there 23 against his will, the Constitution imposes upon it a corresponding duty to assume some 24

25 26 1 In the Traverse, Petitioner asserts that “Respondents’ disparate treatment of Petitioner based on his disabilities and Respondents’ failure to provide Petitioner with reasonable accommodations constitute 27 disability discrimination in violation of Section 504 [of the Rehabilitation Act].” (ECF No. 8 at 29). Petitioner does not raise a disability discrimination claim in the Petition, and the Court does not address 28 1 responsibility for his safety and general well-being.” DeShaney v. Winnebago Cty. Dep’t 2 of Soc. Servs., 489 U.S. 189, 199-200 (1989); see Henry A. v. Willden, 678 F.3d 991, 998 3 (9th Cir. 2012) (when the government takes custody of a person, it creates a “special 4 relationship” wherein the government assumes responsibility for that person’s safety and 5 well-being (citation omitted)). The government violates the Due Process Clause if it fails 6 to provide civil detainees with “basic human needs,” including “food, clothing, shelter, 7 medical care, and reasonable safety.” DeShaney, 489 U.S. at 200. 8 The Court of Appeals for the Ninth Circuit analyzes constitutional claims based on 9 a failure to provide for basic human needs under an objective deliberate indifference 10 standard. See Castro v. Cty. of L.A., 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc). Under 11 the objective deliberate indifference standard, the petitioner must show: 12 (1) [t]he defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) [t]hose conditions put the plaintiff 13 at substantial risk of suffering serious harm;(3) [t]he defendant did not take 14 reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk 15 involved—making the consequences of the defendant’s conduct obvious; and 16 (4) [b]y not taking such measures, the defendant caused the plaintiff’s injuries.

17 Id. “With respect to the third element, the defendant's conduct must be objectively 18 unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each 19 particular case.’” Id. (alteration in original) (quoting Kingsley, 135 S. Ct. at 2473). 20 The Supreme Court has recognized that the detention of individuals pending their 21 removal proceedings is rationally related to the legitimate governmental interest of 22 ensuring their appearance for their deportation proceedings and preventing danger to the 23 community. See Zadvydas, 533 U.S. at 690. “[D]etention during deportation proceedings 24 [is] a constitutionally valid aspect of the deportation process.” Demore v. Kim, 538 U.S. 25 510, 523 (2003); see Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018) (“Detention during 26 [immigration] proceedings gives immigration officials time to determine an alien’s status 27 without running the risk of the alien’s either absconding or engaging in criminal activity 28 1 before a final decision can be made.”). In this case, the government has a strong interest in 2 Petitioner’s continued detention. The immigration judge determined that Petitioner is “an 3 extreme flight risk” and failed to “assuage[e] the general concerns raised by evidence 4 which shows he was smuggled by a group which willingly transports individuals involved 5 with terrorism” and establish that he is not a threat to national security. (Bond Decision, 6 ECF No. 3-2 at 15-16). 7 In addition, Respondents are aware of the risks posed by COVID-19 and have taken 8 substantial steps to respond to the COVID-19 pandemic. IRDF is operating at less than half 9 capacity. Practices have been implemented to provide detainees with personal protective 10 equipment and enhanced cleaning measures, and to promote the maintenance of six feet of 11 physical distance among detainees and staff at IRDF. Respondents’ data show that their 12 responsive measures have been effective at reducing the spread of COVID-19. No IRDF 13 detainees have died from COVID-19, and the last positive COVID-19 test for an ICE 14 detainee assigned to population housing was on May 29, 2020. (Marreno Decl., ECF No. 15 ECF No. 3-5 ¶ 98). Although Petitioner suffers from asthma and gastrointestinal concerns, 16 the record shows that Petitioner has adequate access to medical care and that IRDF has 17 taken adequate steps to respond to the COVID-19 outbreak. Petitioner has not 18 demonstrated that his continued detention under the current conditions at OMDC is 19 excessive in relation to the government’s legitimate objective. Petitioner fails to provide 20 evidence that the conditions at OMDC place him at a “substantial risk of suffering serious 21 harm” or that the measures Respondents have taken to address the COVID-19 outbreak are 22 “objectively unreasonable” in violation of Petitioner’s substantive due process rights or 23 rights to life and health under international law. Castro, 833 F.3d at 1071. 24 b. Prolonged Detention 25 Petitioner asserts that his detention violates his procedural due process rights 26 because he continues to be detained “for an indefinite amount of time without a hearing to 27 determine whether his prolonged detention is justified . . . .” (ECF No. 1 at 21). Petitioner 28 contends that the decisions of the immigration judge to deny a custody redetermination 1 hearing and of ICE to deny his requests for parole were “made in an arbitrary and capricious 2 fashion” in violation of his procedural due process rights and the Administrative Procedure 3 Act, 5 U.S.C. §§ 702(2)(A) and 706(1), without considering Petitioner’s evidence that he 4 is not a flight risk, Petitioner’s evidence that he has strong community ties, and the impact 5 of COVID-19. (Id. at 35). Petitioner contends that his prolonged detention violates his 6 substantive due process rights because his asylum case may take years because of the 7 backlog of immigration cases and delays due to COVID-19, and his continued detention 8 does not bear a reasonable relation to a legitimate government purpose. 9 Respondents contend that Petitioner failed to exhaust administrative remedies 10 because he did not appeal his adverse custody redetermination ruling to the Board of 11 Immigration Appeals (“BIA”). Respondents contend that there is no presumptively 12 unreasonable length of detention because Petitioner’s immigration proceedings are 13 pending. Respondents contend that Petitioner has repeatedly requested continuances of his 14 asylum proceedings, is a flight risk and a risk to national security and public safety, and 15 has been afforded full procedural due process. 16 “[T]he Fifth Amendment entitles aliens to due process of law in deportation 17 proceedings.” Demore, 538 U.S. at 523. Due process “is flexible and calls for such 18 procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 19 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Courts must 20 consider 1) “the private interest that will be affected by the official action;” 2) the 21 government interest, including the burdens additional process would cause; and 3) “the risk 22 of an erroneous deprivation of such interest through the procedures used, and the probable 23 value, if any, of additional or substitute procedural safeguards.” Id. at 335. 24 In habeas cases, courts “may require” the exhaustion of administrative remedies 25 when: 26 (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement 27 would encourage the deliberate bypass of the administrative scheme; and (3) 28 administrative review is likely to allow the agency to correct its own mistakes 1 and to preclude the need for judicial review.

2 Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 2017) (quoting Puga v. Chertoff, 488 3 F.3d 812, 815 (9th Cir. 2007)). If a petitioner fails to exhaust prudentially required 4 administrative remedies, “a district court ordinarily should either dismiss the petition 5 without prejudice or stay the proceedings until the petitioner has exhausted remedies.” Id. 6 (quoting Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011)). However, “a court 7 may waive the prudential exhaustion requirement if ‘administrative remedies are 8 inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, 9 irreparable injury will result, or the administrative proceedings would be void.’” Id. 10 (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)). 11 In this case, Petitioner was given a bond hearing on March 9, 2020. On March 12, 12 2020, the immigration judge denied Petitioner’s request for bond. (Bond Decision, ECF 13 No. 3-2 at 15-16). On July 30, 2020, Petitioner filed a motion for a custody redetermination 14 hearing. (ECF No. 8-3 at 28-32). On August 3, 2020, the immigration judge denied the 15 motion, finding that there has been no change in circumstances since the March 9 bond 16 hearing that would warrant a redetermination hearing. (Order of the Immigration Judge, 17 ECF No. 3-2 at 21). Petitioner did not appeal. See 8 C.F.R. § 1003.19(f) (a detainee may 18 appeal the determination of an immigration judge with respect to custody status or bond 19 redetermination to the BIA). Petitioner fails to set forth evidence demonstrating the 20 exhaustion of administrative remedies or justifying a waiver of the exhaustion requirement 21 as to his claims that the immigration judge’s denial of a custody redetermination hearing 22 violated Petitioner’s due process rights or 5 U.S.C. §§ 702(2)(A) and 706(1). See Leonardo, 23 646 F.3d at 1160 (“Leonardo pursued habeas review of the IJ’s adverse bond determination 24 before appealing to the BIA. This short cut was improper. Leonardo should have exhausted 25 administrative remedies by appealing to the BIA before asking the federal district court to 26 review the IJ’s decision.”); see also Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 27 28 1 2003) (a petitioner “must exhaust administrative remedies before raising . . . constitutional 2 claims in a habeas petition when those claims are reviewable by the BIA on appeal”). 3 In addition, DHS has authority to detain an alien “pending a decision on whether the 4 alien is to be removed from the United States.” 8 U.S.C. § 1226(a). Although § 1226(a) 5 “does not authorize indefinite detention,” the holding in Zadvydas that post-removal 6 detention of more than six months is presumptively unreasonable does not apply where, as 7 in this case, the petitioner’s removal proceedings are pending. Prieto-Romero v. Clark, 534 8 F.3d 1053, 1063 (9th Cir. 2008) (finding no constitutional violation in detention of over 9 three-years under § 1226(a)). Petitioner’s asylum claim is pending. Petitioner has been 10 detained for fourteen months, received a bond hearing six months ago, and received a 11 custody redetermination decision two months ago. The immigration judge determined that 12 Petitioner failed to establish that he is not a threat to national security and is an extreme 13 flight risk. ICE reviewed Petitioner’s custody on July 29, 2020, and September 15, 2020, 14 finding that Petitioner failed to “demonstrate[ ] or provide[ ] enough information that will 15 mitigate [his] flight risk,” and Petitioner would remain in custody pending removal. 16 (Decisions to Continue Detention, ECF No. 3-2 at 20, 25). Petitioner has requested six 17 continuances of his asylum hearing and has an upcoming individual hearing on December 18 9, 2020. 19 This Court has determined that the government has a strong interest in Petitioner’s 20 continued detention pending his asylum determination. ICE has provided Petitioner with 21 periodic reviews of his custody documenting the reasons for Petitioner’s continued 22 detention, which are supported by the immigration judge’s bond decision. Further, 23 Petitioner has not demonstrated that his continued detention is excessive in relation to the 24 government’s legitimate objective, that the decisions of ICE to continue Petitioner’s 25 detention were arbitrary and capricious, or that ICE unreasonably withheld or delayed 26 review of Petitioner’s detention. See 5 U.S.C. § 702(2)(A) (allowing a reviewing court to 27 set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise 28 not in accordance with law”); 5 U.S.C. § 706(1) (allowing a reviewing court to “compel 1 || agency action unlawfully withheld or unreasonably delayed”). Petitioner has failed to show 2 || that his continued detention violates his substantive or procedural due process rights or the 3 || Administrative Procedure Act. The Court concludes that Petitioner fails to demonstrate that 4 || his continued detention violates “the Constitution or laws or treaties of the United States.” 5 }}28 U.S.C. § 2241(c)(3). 6 CONCLUSION 7 IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus pursuant to 8 U.S.C. § 2241 filed by Petitioner Abdul Rehman (ECF No. 1) is denied. 9 IT IS FURTHER ORDERED that the Motion to File Documents Under Seal filed 10 Respondents (ECF No. 4) is granted. 11 Dated: November 3, 2020 BE: te Ze. A a 12 Hon, William Q. Hayes 13 United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28