1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 JOHN DOE, Case No. 20-cv-02141-LB

12 Plaintiff, ORDER GRANTING HABEAS 13 v. PETITION

14 WILLIAM P. BARR, et al., Re: ECF No. 1, 72, 73 15 Defendants. 16 17 INTRODUCTION 18 The petitioner, a citizen of Haiti and a lawful permanent resident of the United States, 19 petitioned under

for his release from immigration custody at the Yuba County 20 Jail on the ground that his medical issues — latent tuberculosis, chronic post-traumatic disorder, 21 and depression — make him vulnerable to COVID-19.1 He challenges his confinement as 22 violations of both substantive and procedural due process under the Fifth Amendment.2 The court 23 previously granted his motions for temporary restraining order and preliminary injunction, and 24 ordered his release.3 The court now grants the petition. 25

26 1 Pet. – ECF No.1. Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 27 2

at 29–39 (¶¶ 83–90). 1 STATEMENT 2 The TRO and the preliminary-injunction order summarize the facts.4 The court incorporates 3 those summaries by this reference. The parties submitted more evidence after the preliminary- 4 injunction hearing. In short, the evidence summarizes the number of detainees and inmates at the 5 jail, the positive tests for COVID-19 that have occurred there, the safety practices that the jail 6 employs to minimize the risks from COVID-19, and the ability to see medical staff.5 7 8 GOVERNING LAW 9 A federal district court can grant a writ of habeas corpus if the petitioner “is in custody in 10 violation of the Constitution or laws or treaties of the United States.”

; accord 11 Gonzalez v. Bonnar, No. 18-cv-05321-JSC,

, at *2 (N.D. Cal. Jan. 25, 2019). 12 “It is well established that the Fifth Amendment entitles aliens to process of law in deportation 13 proceedings.” Demore v. Kim,

(2003) (cleaned up). A civil detainee’s 14 confinement is unconstitutional under the Fifth Amendment if his conditions of confinement 15 “amount to punishment.” Bell v. Wolfish,

(1979); Jones v. Blanas,

(9th Cir. 2004) (quoting Bell,

); accord Bent v. Barr,

408, 413–14 (N.D. Cal. 2020). “[P]unitive conditions may be shown (1) where the challenged 18 restrictions are expressly intended to punish, or (2) where the challenged restrictions serve an 19 alternative, non-punitive purpose but are nonetheless excessive in relation to the alternative 20 purpose, . . . or are employed to achieve objectives that could be accomplished in so many 21 alternative and less harsh methods.” Jones,

(cleaned up). 22 23 24

25 4 Orders – ECF Nos. 27 at 2–11, 60 at 2–4. 26 5 Lind Supp. Decl. – ECF No. 72-1 at 2–3 (¶¶ 2–6); Rabinovich Fourth Decl. – ECF No. 76-1 at 3–4 (¶¶ 7, 9); Rodarte Decl. – ECF No. 74-2 at 2–3 (¶¶ 2–4), 4 (¶ 9); Garbers Emails, Ex. 1 to Rodarte 27 Decl. – ECF No. 74-2 at 7–8; Mull 8/1/2020 Email, Ex. 6 to Rodarte Decl. – ECF No. 74-2 at 54–57; Rodarte Supp. Decl. – ECF No. 75-1 at 2 (¶ 2); Zack 12/14/2020 Email, Ex. 1 to Rodarte Supp. Decl. – 1 ANALYSIS 2 The court previously granted the petitioner’s release and enjoined the government from re- 3 detaining him except under certain conditions. In its return, the government reiterates its 4 arguments about the procedural appropriateness of a

petition, exhaustion of 5 administrative remedies, the petitioner’s Article III standing, and the constitutionality of the 6 || petitioner’s confinement.® The court rejected the arguments previously, and the court’s analysis is 7 unchanged. The government points to changed conditions, including a declining detainee 8 || population, but the changes do not support a different outcome given the petitioner’s medical 9 || vulnerability, the current surge in COVID-19 cases, and the confirmed cases at the jail. The 10 || petitioner continues to abide by his conditions of release and ICE’s monitoring requirements.’ The 11 court thus grants the petition and allows the petitioner’s continued release until COVID-19 12 || developments allow his safe return to the custody of the Department of Homeland Security.

CONCLUSION 3 15 The court grants the petition, allows the petitioner’s continued release, and enjoins the A 16 || respondents from re-detaining the petitioner until circumstances allow his safe return to custody. 5 17 The court orders the parties to submit updates every 90 days. The first update is due March 4, 18 2021, one week before the March 11, 2021 case-management conference. If circumstances are 19 || unchanged the court likely will continue the case-management conference another 90 days. 20 The plaintiffs proposed order has additional conditions of release. The court asks the parties 21 to confer and submit any revised conditions in a standalone order. The court’s previous conditions 22 || of release remain in effect. 23 IT IS SO ORDERED. LAE 24 Dated: December 17, 2020 LAUREL BEELER 25 United States Magistrate Judge 26 27 6 Return — ECF No. 72 at 15-29. 28 7 Doe Decl. — ECF No. 74-1 at 8-9 3-10).