United States Court of Appeals For the First Circuit

No. 20-2117

IN RE: AIRES DA GRACA; CONROY LEWIS; CYRIL OKOLI; DARLIN ALBERTO GUILLERMO; DIMITAR DASKALOV; EDSON MARTINS; EMMANUEL LOPEZ; FLAVIO PRADO JUNIOR; FRED KAYITARE; GABRIEL DE LA PAZ; JOAO AMADO; KEITH WILLIAMS,

Petitioners,

v.

STEVEN J. SOUZA, in his official capacity as Superintendent of the Bristol County House of Correction,

Respondent,

TAE D. JOHNSON, in his official capacity as Acting Director for U.S. Immigration and Customs Enforcement;* ALEJANDRO MAYORKAS, in his official capacity as Secretary of the Department of Homeland Security;** IMMIGRATION CUSTOMS ENFORCEMENT; TODD M. LYONS, in his official capacity as Acting Director of the Boston Field Office of Immigration and Customs Enforcement; THOMAS M. HODGSON, in his official capacity as Bristol County Sherriff,

Respondents.

PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

* Pursuant to Fed. R. App. P. 43(c)(2), Acting Director for U.S. Immigration and Customs Enforcement Tae D. Johnson has been substituted for former Senior Official Performing the Duties of the Director of U.S. Immigration and Customs Enforcement Matthew T. Albence as respondent. **Pursuant to Fed. R. App. P. 43(c)(2), Secretary of the U.S. Department of Homeland Security Alejandro Mayorkas has been substituted for former Acting Secretary of the U.S. Department of Homeland Security Chad F. Wolf as respondent. [Hon. William G. Young, U.S. District Judge]

Before

Lynch, Selya, and Kayatta, Circuit Judges.

Sameer Ahmed, with whom the Harvard Law School Crimmigration Clinic was on brief, for petitioners. Christina Parascandola, Senior Litigation Counsel, Office of Immigration Litigation, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, William C. Peachey, Director, Office of Immigration Litigation, Jeffrey S. Robins, Deputy Director, Office of Immigration Litigation, William C. Silvis, Assistant Director, Office of Immigration Litigation, Michelle M. Ramus, Trial Attorney, Office of Immigration Litigation, Thomas E. Kanwit, Assistant United States Attorney, and Michael Fitzgerald, Assistant United States Attorney, were on brief, for respondents.

March 17, 2021 LYNCH, Circuit Judge. Petitioners are immigration

detainees primarily held at the Bristol County House of Correction

("BCHOC"). Respondents include state correction officials and

federal U.S. Immigration and Customs Enforcement ("ICE") officials

who secured petitioners' detention after they were picked up,

usually after commission of criminal felony offenses, and found

not to be legally in the United States. Claiming that the district

court erred in denying their bail applications despite the ongoing

COVID-19 pandemic, the detainees petition for a writ of mandamus.

We deny the petition.

I. Facts and Procedural History

Petitioners are class members in a habeas class action

filed against ICE and certain government officials on March 27,

2020. The habeas petition requested relief for immigration

detainees held at BCHOC who were "at imminent risk of contracting

COVID-19, the lethal virus that is sweeping the globe and that

feeds on precisely the unsafe, congregate conditions in which

Plaintiffs are being held." When the habeas petition was filed,

there were approximately 148 detainees held at BCHOC. See Savino

v. Souza,

, 443 (D. Mass. 2020).

The habeas petition stated that the immigration

detention facilities were overcrowded, housed a high proportion of

people especially vulnerable to COVID-19, offered detainees

limited access to hygiene products, and did not allow for social

- 3 - distancing. It alleged that the defendants violated the

petitioners' Fifth Amendment rights to due process by exposing

them to an "imminent risk of physical, emotional and mental harm"

and violated § 504 of the Rehabilitation Act, see

(a), by exposing petitioners with underlying medical

conditions to COVID-19 and thus preventing them from participating

in the removal process by reason of their disability. Among other

things, the habeas petition sought immediate release of the

petitioners to the population at large or "placement in community-

based alternatives to detention." Petitioners also moved for a

temporary restraining order and class certification.

On April 2, 2020, the district court held a hearing,

grouped detainees into five subclasses based on their criminal

histories and medical conditions, and provisionally certified

these subclasses. See Savino, 453 F. Supp. 3d at 448 & n.8. The

next day, it held another hearing at which it requested that the

parties submit a list of fifty detainees applying for bail by April

4, 2020, and a list of ten bail applications per day starting on

April 7, 2020. The parties did not agree on a list of fifty

detainees by April 4, 2020, so the court created its own list and

set hearing dates beginning on April 7, 2020.

On April 8, 2020, the district court issued a memorandum

and order holding that the petitioners had standing to bring their

claims and certified the petitioners' proposed class of "[a]ll

- 4 - civil immigration detainees who are now held . . . at [BCHOC]."1

Id. at 454. It said it would "follow[] the light of reason and

the expert advice of the [Centers for Disease Control and

Prevention] in aiming to reduce the population in the detention

facilities so that all those who remain (including staff) may be

better protected," id. at 454, and that it would use its "inherent

authority" to "order bail for several Detainees and to consider

bail applications for others," id. at 453. In considering bail

applications, the court said it would prioritize releasing non-

violent detainees and in fact did so. See id. at 454.

The district court conducted hearings on many detainees'

bail applications throughout April. By April 28, 2020, it had

granted bail to forty-two detainees and denied bail to nineteen.

By May 5, 2020, eighty-two detainees remained at BCHOC, about a

45% reduction from the original 148 detainees.

On May 7, 2020, the district court granted the class's

motion for a preliminary injunction. It ordered that no new

immigration detainees be admitted to BCHOC, that all current

detainees be tested for COVID-19, and that all staff who come into

contact with BCHOC detainees also be tested. On May 12, 2020, the

1 The petitioners had originally proposed a broader class encompassing "[a]ll civil immigration detainees who are now or will be held" at BCHOC. Savino, 453 F. Supp. 3d at 448. The district court "certif[ied] the general class as proposed by the Detainees, albeit excluding those not yet in custody." Id.

- 5 - court issued a memorandum of decision providing its reasoning for

its issuance of the preliminary injunction. See Savino v. Souza,

, 320-21 (D. Mass. 2020).

On November 5, 2020, the class moved for reconsideration

of the court's denial of bail to some of the petitioners. The

district court denied this motion on December 18, 2020.

The five remaining detainees who continue to pursue a

writ of mandamus before this court -- Aires Da Graca, Flavio Prado

Junior, Conroy Lewis, Joao Amado, and Fred Kayitare -- filed their

petition on November 25, 2020.2 They had been denied bail in April

2020.3 The district court did not explicitly state reasons for

denying bail to these detainees, but all of them have criminal

histories showing that they were convicted of committing violent

crimes.4

2 In parallel with this mandamus petition, the petitioners also filed a notice of appeal. The two proceedings were consolidated in this court for oral argument. Their appeal will be disposed of in a separate and subsequent opinion. 3 There were originally twelve petitioners for a writ of mandamus. Seven are no longer in immigration detention and the petition before us is moot as to them. Prado is no longer at BCHOC but is detained at another facility in Massachusetts. 4 Da Graca has been convicted of carjacking, domestic violence offenses, drug possession, and trespassing. Prado has an outstanding arrest warrant in Brazil, where he was convicted of rape. He had escaped from Brazilian prison before coming to the United States. An immigration judge rejected his claim that his rape conviction was tainted and found that he was a danger to the community. Lewis has been convicted of carrying a dangerous weapon, reckless endangerment, criminal trespass, and possession with intent to sell a controlled substance. Among other things,

- 6 - II. Analysis

The All Writs Act allows federal courts to "issue all

writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law."

(a). The writ of mandamus has "stringent

requirements," In re Tsarnaev,

(1st Cir. 2015),

and is "generally thought an inappropriate prism through which to

inspect exercises of judicial discretion,"

at 18 (quoting In

re Bushkin Assocs., Inc.,

(1st Cir. 1989)).

"'[O]nly exceptional circumstances amounting to a judicial

"usurpation of power,"' or a 'clear abuse of discretion,' 'will

justify the invocation of this extraordinary remedy.'" Cheney v.

U.S. Dist. Ct. for D.C.,

(2004) (citations

omitted) (first quoting Will v. United States,

(1967); then quoting Bankers Life & Cas. Co. v. Holland,

(1953); and then quoting Will,

). Before

mandamus can be granted, petitioners must show that there is no

other adequate means to attain their desired relief and that they

have a "clear and indisputable" right to issuance of the writ.

at 380-81 (quoting Kerr v. U.S. Dist. Ct. for N. Dist. of Cal.,

(1976)); see In re Fin. Oversight & Mgmt. Bd.

Amado has been convicted of felony armed robbery, aggravated assault with a firearm, felony burglary, and, most recently, carrying a firearm without a license. Kayitare has been convicted of two counts of assault and one count of unlawful sexual touching.

- 7 - for P.R.,

, 127 (1st Cir. 2021). Further, the court

issuing the writ, acting within its discretion, "must be satisfied

that the writ is appropriate under the circumstances." Cheney,

.

Mandamus comes in two varieties: supervisory mandamus

and advisory mandamus. In re Grand Jury Subpoena,

(1st Cir. 2018). The petitioners argue for both types.

A. Supervisory Mandamus

Supervisory mandamus "is available when 'the issuance

(or nonissuance) of [a district court] order presents a question

about the limits of judicial power, poses some special risk of

irreparable harm to the [party seeking mandamus], and is palpably

erroneous.'"

(alterations in original) (quoting United States

v. Horn,

(1st Cir. 1994)). At least one of the

necessary conditions for supervisory mandamus is not met here, so

we do not discuss the others.

Petitioners have made no showing that the district court

"palpably" erred. The harm that the petitioners originally

complained of was "unconstitutional overcrowding" during the

height of the COVID-19 pandemic. Savino, 453 F. Supp. 3d at 447.

Remedying overcrowding does not require releasing every detainee

on bail. Indeed, the court stated that "effectively minimiz[ing]

the concentration of people in [BCHOC]" would "protect everyone

from the impending threat of mass contagion" and therefore started

- 8 - granting bail to some detainees. Id. at 452. It properly

recognized that granting bail under these circumstances "requires

individualized determinations, on an expedited basis, and . . .

should focus first on those who are detained pretrial who have not

been charged with committing violent crimes." Id. at 454 (quoting

Comm. for Pub. Counsel Servs. v. Chief Just. of Trial Ct.,

, 537 (Mass. 2020), aff'd as modified,

(Mass. 2020)); cf. United States v. Zimny,

(1st

Cir. 2017) (discussing that, in the criminal context, the district

court makes an individualized determination as to whether the

defendant is a flight risk or danger to the community).

The district court followed this standard and the

petitioners have not shown that the district court violated this

standard. Each of the petitioners here, as the district court

knew, had committed serious, violent crimes, many of which were

felonies. Based on their criminal histories, it was reasonable to

deny bail to these petitioners because they each posed dangers to

the community and/or were flight risks. See Savino, 453 F. Supp.

3d at 451 ("Detainees with a serious criminal background might

have a tougher time demonstrating that the government could 'have

easily prevented that harm' by releasing them on bond . . . ."

(quoting Leite v. Bergeron,

(1st Cir. 2018))).

The court chose to grant other detainees bail, but not the

petitioners remaining here, after individualized determinations as

- 9 - to each bail petition. Doing so, it succeeded in decreasing the

population of detainees at BCHOC by about 45% by the beginning of

May 2020, reducing the risk of any potential harm to the detainees

remaining at BCHOC. See

("[A] common question . . . is whether

the government must modify the conditions of confinement . . . or

. . . release a critical mass of Detainees . . . such that . . .

those held in the facility will not face a constitutionally

violative 'substantial risk of serious harm.'" (quoting Farmer v.

Brennan,

(1994))). There is no basis for

supervisory mandamus relief.

B. Advisory Mandamus

Advisory mandamus is available in rare cases where the

standard for supervisory mandamus is not met. It is appropriate

only where there is an unsettled issue of law "of substantial

public importance," where the issue is "likely to recur," and where

"deferral of review would potentially impair the opportunity for

effective review or relief later on." United States v. Pleau,

(1st Cir. 2012) (en banc) (citing Horn,

-

70); see also In re Justs. of Superior Ct. Dep't of Mass. Trial

Ct.,

(1st Cir. 2000). These standards were not

met here.

The petitioners argue that they present two unsettled

questions of law of substantial importance warranting advisory

mandamus: (1) whether the COVID-19 pandemic is a per se exceptional

- 10 - circumstance warranting bail for all detainees regardless of

individual circumstances and (2) the bail standard applicable for

a habeas petitioner. Advisory mandamus is not warranted to decide

either question.

First, issuing a writ of advisory mandamus to determine

whether the pandemic is an exceptional circumstance is

inappropriate because the question is a factual one, not a legal

one. See Sampson v. United States,

(1st Cir. 2016)

("We typically exercise [advisory mandamus] to settle substantial

questions of law when doing so would give needed guidance to

lawyers, litigants, and lower courts." (alteration in original)

(emphasis added) (quoting Sampson v. United States,

(1st Cir. 2013))). Many contextual factors -- including, for

example, rapidly evolving scientific knowledge about COVID-19 and

how it spreads, the population density at BCHOC, and the

availability of treatments and vaccines for the virus -- affect

whether COVID-19 constitutes an exceptional circumstance

warranting bail for BCHOC detainees at any given point in time.

Next, petitioners argue that a writ of advisory mandamus

is necessary to clarify that "bail is appropriate either where a

habeas petitioner has shown likelihood of success on the merits or

where there are exceptional circumstances." But regardless of

whether the district court misspoke in its articulation of the

proper bail standard, the issue is irrelevant here for the reasons

- 11 - discussed earlier. It was reasonable for the district court to

conclude that these petitioners were unlikely to succeed on their

habeas petitions because of their criminal histories. And the

court properly recognized that reducing the detainee population at

BCHOC by granting bail to some detainees would mitigate whatever

exceptional circumstances existed due to the COVID-19 pandemic for

the remaining detainees. Petitioners would not have been admitted

to bail even under the standard they say the court should have

used, and there is no reason to exercise our discretion to grant

a petition for advisory mandamus here.

III. Conclusion

The petition for a writ of mandamus is denied as without

merit.

- 12 -