- In orders issued on April 7 and April 10, a district court judge ordered 22 aliens released from immigration detention due to concerns that they were at serious risk of harm if they contracted the coronavirus, due to their ages and medical conditions.
- The first order was issued ex parte, without giving the government the opportunity to respond, although the aliens had not sought an ex parte order or complied with the requirements to obtain one
- Before issuing the second order, the judge improperly placed the burden on the government to show why the aliens should not be released.
- The Third Circuit held that the district court had committed procedural and substantive errors in issuing those orders.
- It found: "The District Court turned due process on its head when it required the party against whom it ordered injunctive relief to prove why such relief should not be continued."
- That April 10 order also violated a rule of civil procedure in that it failed to "state its terms specifically" and to "describe in reasonable detail ... the act or acts restrained or required." As a consequence, the Third Circuit held: "The Government would be acting at its peril if it were to re-detain" the aliens.
- The district court also erred in concluding that because the aliens' ages and medical conditions put them at a heightened risk if they contracted the coronavirus, their detention was "punishment", which is unconstitutional in the immigration-detention context.
- Significantly, the Third Circuit concluded: "We acknowledge difficulties faced by trial courts in emergent matters and the need to act immediately, particularly during a pandemic. But exigent circumstances do not empower a court to jettison fundamental principles of due process or the rules of procedure that govern such matters."
On Tuesday, August 25, the Court of Appeals for the Third Circuit issued a precedential opinion finding that a district court judge had erred in numerous ways in ordering DHS to release 22 immigration detainees from county prisons in Pennsylvania. The detention of "many" of those aliens had either been mandated by Congress or by DHS or immigration judges "to protect the public", and no wonder: the criminal histories of some "involve[d] serious offenses, such as aggravated assaults, threatening sexual assault, first degree robbery, and weapons violations." It was a stinging rebuke, to say the least.
The first error occurred when the district court issued a temporary restraining order (TRO) on April 7, four days after the petitioners in the case filed a "Verified Petition for Writ of Habeas Corpus and Complaint for Emergency Injunctive Relief", seeking release of the 22 aliens from ICE detention in York and Pike County Prisons.
That petition alleged that the aliens were at serious risk of harm from Covid-19 due to their ages and/or preexisting medical conditions, contending that "risk mitigation is impossible" at the two facilities. The aliens ranged in age from 28 to 69 (the only one older than 65), had "divergent medical conditions", were in detention for various different reasons, posed different risks of flight, possessed "unique criminal histories" (summarily described), and would be returning to different housing situations.
That TRO was ex parte, that is, it was issued without a hearing at which the government could be heard, and ordered release of each on their own recognizance. It also directed the government (from which it had yet to hear) to show cause why the TRO "should not be converted into a preliminary injunction" — essentially (and improperly) shifting the burden to the government of showing why those aliens should be detained.
The government quickly (within five hours of issuance of the TRO) responded, moving to stay the TRO and asking the court to reconsider based upon a statement by the local ICE assistant field office director (AFOD). The court stayed the TRO, and directed counsel for the aliens to respond to the motion to reconsider, which they did the next day, April 8.
That day, the government responded to the aliens' petition, and their motion for a TRO. On April 9, the court held an off-the-record status conference, and on April 10, DOJ filed another statement from the AFOD.
That day, and again without holding a hearing or (largely) discussing the government's response, the court issued an order lifting its stay, denying reconsideration, and mandating the aliens' direct release.
As an aside, that order was internally contradictory, as it purported to expire on April 20, but extended release until the governor of Pennsylvania lifted his Covid-19 state of emergency, or until the court ordered otherwise (as discussed below). Unhelpfully, it also terminated release if the alien absconded.
Under that order, the government could take any of the 22 back into custody if they committed any additional crimes, but did not specify what crimes would qualify for re-detention. The government could also impose "other reasonable nonconfinement terms of supervision", but not if those terms required the aliens "to violate national, state and local guidance regarding staying at home, sheltering in place, and social distancing" (whatever that means).
The court denied the government's request that, if it were to order release of the 22 aliens, it place them in home detention, order them to wear ankle bracelets, and require their attorneys to report the whereabouts of each every seven days. It did require the aliens to report to their attorneys once a week, and for the attorneys to notify the government if any absconded (although it came out at oral argument that the aliens' "reporting obligation had not been regularized" — again, whatever that means).
Notably, the district court never explained why it ordered the aliens released on their own recognizance, instead of home detention or government monitoring. Not surprisingly, the government appealed.
Before I go further, I will note that the judge was not writing on a blank slate. Three days before the petition was filed, he had ordered 10 other aliens released from ICE custody at York, Pike, and Clinton County Prisons, a case that I alluded to in an April 30 post after he had ordered seven of them returned to custody. In footnote seven in its order, the Third Circuit noted that some of those aliens had absconded.
The Third Circuit's decision gets extremely weedy on the standards for injunctive relief (including TROs), and whether the aliens could seek relief through habeas (it held they could).
Briefly, to get injunctive relief, the aliens bore the burden of showing, among other things, that they were likely to prevail eventually and that they would suffer irreparable harm if their requests were denied. Those burdens were higher in this case because the aliens were seeking a mandatory injunction. If they were able to meet those burdens, the court would then have to weigh the harm to the aliens against the harm to the government, and decide whether it would serve the public interest to grant that relief.
The government argued on appeal that the district court erred in granting ex parte relief without giving it a chance to respond, and in flipping the burden to the government to show why the aliens were not entitled to the mandatory injunction.
On the first point, the Third Circuit held that the district court did err in granting ex parte relief — which the aliens did not seek, and for which they failed to show they were eligible. This error was compounded when the district court issued its subsequent order without holding a hearing (which the aliens had actually requested). Simply put (although the circuit court did not put it so simply), the government was denied its right to be heard.
That error was compounded when the district court then "not only shifted the burden to the Government, but also required it to surmount the high hurdle applicable to a motion" to reconsider the court's earlier order. The government had requested reconsideration in its initial response, but the district court failed to consider the other points the government had made in that response, as well.
As the circuit court put it bluntly: "The District Court turned due process on its head when it required the party against whom it ordered injunctive relief to prove why such relief should not be continued." Ouch.
The errors did not end there. By mandating release of those aliens indefinitely — until the Pennsylvania governor lifted his state of emergency — the April 10 order violated the rule of civil procedure that TROs issued without notice to the non-movant (here, the government) terminate within 14 days.
That order also violated the aforementioned rule in that it failed to "state its terms specifically" and to "describe in reasonable detail ... the act or acts restrained or required." Why is this important? Violations of those terms could lead to the government being held in contempt — a sanction requiring that the party to whom the terms apply actually know what those terms are.
Here, did the order terminate on April 20 as it stated, or on the lifting of the state of emergency as it also stated? Good question. That order also allowed the government to issue "reasonable nonconfinement terms of supervision", as noted. What would be "reasonable" in this case? What "further crimes" would allow the government to take those aliens back into detention? Traffic stops? Doubtful. Only felonies? Possibly. But the terms were unclear. The circuit concluded that "[t]he Government would be acting at its peril if it were to re-detain" the aliens.
By the way, the threat of contempt cuts both ways. The district court ordered the aliens to self-quarantine, without explaining what that entails. And they were required "to comply with all ... national, state and local guidance regarding staying at home, sheltering in place, and social distancing", raising the question what that "guidance" includes.
Then there is the part about the lawyers for the aliens reporting if they absconded. Does that apply only if they know the aliens absconded, or just if they think they did (by, for example, not reporting)?
Finally, under the rule governing TROs, a non-government movant must provide "security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained", here, bond. But the orders of the court did not require bond.
And those were just the procedural mistakes. The circuit held that there were substantive ones, too.
Specifically, the district court erred in concluding that because the aliens' ages and medical conditions put them at a heightened risk if they contracted the coronavirus, their detention was "punishment", which is unconstitutional in the immigration-detention context.
In particular, the district court concluded that it found "no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments — [because] doing so would constitute a punishment to" the aliens.
The circuit court concluded this was in error on two grounds. First, it found that the lower court and the aliens themselves failed to consider "the legitimate objectives and difficulties of managing a detention facility ... and the objectives of immigration detention: ensuring appearance at detention proceedings and protecting the public from harm."
Second, it concluded that the district court, in finding that conditions at the two facilities were "unsanitary", had relied on his findings in the earlier case and ignored the improvements that both (and DHS) had implemented since then. Of course, it did not give the government the opportunity to offer proof of those improvements before it issued its April 7 order, and then gave those (rather substantial) improvements short shrift in its April 10 order, noting "[w]hile [the facilities] may have ramped up their sanitation protocols, the simple fact that inmates are incapable of social distancing in the facilities remains."
Significantly, the circuit court categorically rejected the district court's "view that, because the Government has means other than detention to effectuate the INA's provisions for exclusion or expulsion of aliens, Petitioners' civil detention cannot be rationally related to a legitimate government purpose."
On these grounds and others, the circuit court held that the district court erred in concluding that the aliens would "show a substantial likelihood of success on their claim that the conditions of their confinement constitute unconstitutional punishment."
The circuit court also rejected the aliens' alternative argument that the government had deprived them of their substantive due process rights "when it acted with deliberate indifference to their serious medical needs (i.e., their vulnerability to Covid-19 because of their ages and medical conditions)."
It noted: "In essence, they argue that the Government must eliminate entirely their risk of contracting Covid-19." The circuit found, however, that such a "task is not the constitutional standard", and that "a failure to eliminate all risk" did not "establish that the Government was deliberately indifferent to their serious medical needs."
Here, the circuit court held the government had taken steps to address the dangers of the coronavirus in the detention setting, but the district court "undertook no analysis of those efforts". After detailing those steps, the circuit concluded that the aliens "fell well short of establishing that the Government was deliberately indifferent toward their medical needs." Therefore, it concluded (again, bluntly): "Considering the record as a whole, we have a definite and firm conviction that a mistake has been committed." Again, ouch.
Finally, the circuit held that the district court erred in failing to assess the harm to each of the aliens from continued detention (rather than considering them as a whole), in failing to balance the harm that would accrue the aliens if they were detained against the harm to the government if those aliens were ordered released, in failing to consider the public interest if the aliens were released, and in "fashioning an 'all-or-nothing' remedy".
Specifically, the fact that the aliens were "all at heightened risk for severe complications from Covid-19" and would face irreparable harm if they contracted the coronavirus would be true whether the aliens were detained or released. And (similarly), the circuit court held that the district court erred in considering the 22 aliens as a whole, rather than looking at the specific risks each faced and the conditions under which they would be released. Simply put, it failed to consider, with respect to the coronavirus, whether the aliens "would suffer more harm in detention" — where, in particular, they would have access to healthcare — "than if released".
The district court also failed to consider the harm to the public if the aliens (who posed different criminal and flight risks) were released, or the burden they would place on the healthcare system in their individual communities. And it failed to consider the burden on the government in re-arresting those aliens if they absconded; if the government prevailed; or if any, each, or all committed a crime or violated the terms of their release.
The circuit court concluded:
We acknowledge difficulties faced by trial courts in emergent matters and the need to act immediately, particularly during a pandemic. But exigent circumstances do not empower a court to jettison fundamental principles of due process or the rules of procedure that govern such matters.
Due to the district court's procedural and substantive errors, the court vacated the April 7 and April 10 orders, and remanded the case.
This published opinion will likely have ramifications far beyond the 22 aliens involved.
There have been numerous efforts (many successful) to run roughshod through congressional mandates and administrative determinations to obtain from courts the release of aliens in immigration custody, due to purported risks of detention resulting from the pandemic.
This well-reasoned — and blunt — decision puts the focus back where it should be: on the rules that govern injunctive relief, the government's right to be heard in those cases, and on the public interest served by immigration detention.