1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 RACHANA DUONG, et al., Case No. 20-cv-02864-RMI

9 Plaintiffs, ORDER ON RESPONDENTS’ MOTION 10 v. FOR STAY; AND DIRECTIONS TO THE PARTIES 11 DAVID JENNINGS, et al., Re: Dkt. No. 14 12 Defendants.

13 14 Now pending before the court is a Petition for Writ of Habeas Corpus filed by two 15 individual petitioners, Rachana Duong and Kethikoun Keo, both of whom are refugees from 16 Cambodia that are currently being held at the Yuba County Jail (“YCJ”) by United States 17 Immigration and Customs Enforcement (“ICE”). See generally Pet. (dkt. 1). Additionally, while 18 Petitioners have filed a Motion for Temporary Restraining Order (dkt. 3), seeking immediate 19 release from immigration custody, Respondents have filed a Motion to Stay (dkt. 14) this case, in 20 light of the duplicative case doctrine, such that Petitioners can seek the relief sought here in the 21 currently-pending class action case styled as Angel de Jesus Zepeda-Rivas v. David Jennings et 22 al., Case No. 3:20-cv-02731-VC. Petitioners oppose the issuance of a stay. See Pets.’ Reply Br. 23 (dkt. 15) at 13-19). Following a referral for the purpose of determining the relationship between 24 this case and the class action (dkt. 16), the Honorable Vince Chhabria entered an order stating that 25 “[t]he Court’s current view is that an individual case should be deemed related to this class action 26 if it includes nothing that falls outside the scope of this class action – that is, if the sole claim for 27 relief in the individual case involves allegedly unconstitutional conditions of confinement relating 1 (filed in Case No. 3:20-cv-02731-VC) at 1. 2 Petitioners here allege essentially the same claim – that is, that they suffer from chronic 3 preexisting medical conditions that substantially increase the likelihood of severe complications 4 from COVID-19 and that because of the cramped conditions and communal facilities at the YCJ, 5 it is effectively impossible for them to protect themselves against COVID-19 infection while 6 incarcerated there. Id. at 2. Petitioner Duong, who has been diagnosed with asthma (among other 7 conditions), is currently in removal proceedings and has been in ICE detention at YCJ since 8 March 17, 2020. Id. at 5-6. Petitioner Keo, who has been diagnosed with congestive heart failure 9 and high blood pressure, has been detained at YCJ since December of 2019, following the 10 issuance of a final order of removal. Id. at 6; see also Pets.’ Opp. (dkt. 150) (filed in Case No. 11 3:20-cv-02731-VC) at 4. The essence of Petitioners’ single claim in the habeas petition is that, as 12 civil detainees, their substantive due process rights are violated by the combination of their 13 preexisting medical conditions and the impossibility of protecting themselves from COVID-19 14 infection at the YCJ. See Pet. (dkt. 1) at 16. 15 Petitioners oppose the entry of a stay in this case and maintain that this case is 16 distinguishable from Zepeda-Rivas “because Petitioners [here] seek individual relief based on a 17 factual record replete with evidence of their individual circumstances, while Zepeda-Rivas seeks 18 systemic reform whose impact on Petitioners is uncertain.” Pets.’ Reply Br. (dkt. 15) at 13. In 19 short, Petitioners submit that Respondents bear the burden of demonstrating that convenience and 20 judicial economy would result from consolidation. Id. The court finds Petitioners’ attempts to 21 draw distinctions between the relief currently sought in this case, and the relief being granted to 22 class members in Zepeda-Rivas to be unpersuasive. See Standard for Considering Bail Requests 23 (dkt. 90) (filed in Case No. 3:20-cv-02731-VC) at 1 (describing the individualized determination 24 for suitability for immediate release on bail based on a number of factors including the risk posed 25 to an individual detainee by current conditions at the detention facility); see also Order Granting 26 TRO (dkt. 53) (Zepeda-Rivas); see also Draft Short Form Bail Appliction (dkt. 65) (Zepeda-Rivas) 27 (considering, among other things, the “[m]edical condition(s) that put detainee at risk”). Another 1 the possibility that at some point in the future Petitioner Keo “may challenge his [continued] 2 detention on the additional ground that it [has become] indefinite” (see Pets.’ Opp. (dkt. 150) 3 (filed in Case No. 3:20-cv-02731-VC) at 4), however, the Petition at bar (dkt. 1) currently includes 4 no such claim, and if Petitioner Keo manages to secure release from custody by way of bail 5 through Zepeda-Rivas, then any potential claim that complains of indefinite detention would be 6 moot before it is even viable in light of having secured release on bail. However, at the moment, 7 Petitioner Keo concedes that under Zadvydas v. Davis,

(2001), a period of post- 8 removal-order detention of up to 6 months is presumptively reasonable, and that a 6-month period 9 of time has not yet expired since the commencement of Petitioner Keo’s detention by ICE.1 See 10 Pets.’ Opp. (dkt. 150) (filed in Case No. 3:20-cv-02731-VC) at 4 (expressing doubt about “ICE’s 11 current ability to repatriate individuals to Cambodia.”). In any event, ICE’s purported inability to 12 repatriate individuals to Cambodia is called into question by the fact that, in January of 2020, ICE 13 did in fact deport 25 refugees back to Cambodia.2 14 Thus, it is hereby ORDERED that this matter is STAYED pending further action relating 15 to these Petitioners in the Zepeda-Rivas case. Promptly after the issuance of a final release 16 determination concerning these Petitioners in the Zepeda-Rivas case, counsel for the Parties shall 17 inform the court of that determination and shall make any further filings or requests that may be 18 appropriate under the circumstances. Petitioners’ counsel are hereby ORDERED to communicate 19

20 1 See

(“Consequently, for the sake of uniform administration in the federal courts, we recognize 21 that period. After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with 22 evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the ‘reasonably foreseeable future’ conversely would 23 have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined 24 that there is no significant likelihood of removal in the reasonably foreseeable future.”).

2 See Yam, Kimmy, ICE deported 25 Cambodian immigrants, most of whom arrived in the U.S. as 25 refugees, https://www.nbcnews.com/news/asian-america/ice-deported-25-cambodian-immigrants- most-whom-arrived-u-s-n1117906 (last checked 05/18/2020 at 2:19 p.m.) (“The backlash 26 prompted Cambodia to drastically cut back on deportations, and in August 2017, the country halted issuing travel documents for deportation. However[,] when the Trump administration 27 slapped visa sanctions on the country, barring high-ranking Cambodian officials and their families 1 and coordinate with counsel of record in the Zepeda-Rivas case such as to promptly prepare and 2 || present Petitioners’ bail applications in that case. 3 IT IS SO ORDERED. 4 Dated: May 18, 2020 5 6 ROBERT M. ILLMAN 7 United States Magistrate Judge 8 9 10 11 a 12 15 16

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