Case: Velesaca v. Decker

1:20-cv-01803 | U.S. District Court for the Southern District of New York

Filed Date: Feb. 28, 2020

Case Ongoing

Clearinghouse coding complete

Case Summary

COVID-19 Summary: This case was initially filed in February 2020 to address the absence of bond hearings for ICE detainees in New York. Then on March 16, 2020, in light of the grave threat posed by congregate detention during the coronavirus pandemic, plaintiffs sought emergency relief: individualized determinations assessing whether detention is necessary in light of flight risk/public safety, and releases where it is not. On March 31, the Court issued an order granting this relief and enjoini…

COVID-19 Summary: This case was initially filed in February 2020 to address the absence of bond hearings for ICE detainees in New York. Then on March 16, 2020, in light of the grave threat posed by congregate detention during the coronavirus pandemic, plaintiffs sought emergency relief: individualized determinations assessing whether detention is necessary in light of flight risk/public safety, and releases where it is not. On March 31, the Court issued an order granting this relief and enjoining the government's "No-Release Policy." On December 18, the plaintiffs filed a motion to enforce the preliminary inunction and the case was referred to a Magistrate Judge for settlement proceedings.


On February 28, 2020, a noncitizen placed in a federal immigration detention facility and denied bond or release while awaiting immigration hearings filed this class-action suit in the United States District Court for the Southern District of New York. Represented by the New York Civil Liberties Foundation and the Bronx Defenders, the petitioner sued the U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, and individual agency officials; he filed a habeas petition to challenge that the absence of an adequate individual custody determination, which led to him being denied bond or release violated his statutory, regulatory, and constitutional rights. He sought declaratory relief that the ICE's practices were unlawful and an injunction ordering the government to conduct adequate individualized custody determinations for members of the proposed classes.

The policy challenged by the petitioner is referred to in the complaint as the "No-Release Policy." It is ICE's alleged policy of denying release and bond to all immigrant detainees arrested in the New York City area. The complaint asserted that the No-Release Policy violated federal law which requires that, within 48 hours of their arrest, many immigrant detainees get an individualized determination of whether they can be released while immigration proceedings go forward. According to data obtained by the petitioner's counsel under the Freedom of Information Act, "from 2013 to June 2017, approximately 47% of those deemed to be low risk by the government were granted release. From June 2017 to September 2019, that figure plummeted to 3%." Furthermore, the complaint alleged that in mid-2017, ICE had modified its risk-assessment tool's algorithm to prevent it from recommending that noncitizens be released--the tool was only able to recommend further detention. The petitioner claimed that the No-Release Policy resulted in thousands of detainees being denied individualized custody determinations and remaining in detention facilities "under harsh conditions of confinement akin to criminal incarceration."

The petitioner asserted four causes of action; violations of "the Immigration and Nationality Act and its implementing regulations, the Due Process Clause of the Fifth Amendment to the United States Constitution, the Administrative Procedure Act, and the Rehabilitation Act."

The two classes proposed by the petitioner were:

(1) The Petitioner Class: All individuals eligible to be considered for bond or release on recognizance under 8 U.S.C. § 1226(a)(1)-(2) by ICE’s New York Field Office who have been or will be detained without bond; and

(2) the Rehabilitation Act Subclass: All individuals with a disability, as defined by the Rehabilitation Act and its implementing regulations, who are eligible to be considered for bond or release on recognizance under 8 U.S.C. § 1226(a)(1)-(2) by ICE’s New York Field Office and who have been or will be detained without bond.

The case was assigned to Judge Hellerstein. The petitioner's motion for class certification is pending before the district court and the government has yet to file a response to the complaint.

On March 16, 2020, the petitioner filed a motion for a preliminary injunction, which argued:

This illegal practice of mass detention causes enormous and unnecessary irreparable harm, separating people from their families, jobs, and communities and exposing them to serious health risks without any individualized determination of whether the ongoing denial of liberty is justified. Exacerbating these harms—and increasing the urgency of the petitioners’ request for relief—is the threat posed by COVID-19, the pandemic experts predict will spread to New York City area immigration detention centers in a matter of days, bringing with it the threat of infection, pneumonia, sepsis, or even death.
The motion sought prompt provide individualized determinations for class members assessing "whether detention is necessary based on individualized assessments of the petitioners’ flight risk, danger to the community, and disability and issue class-wide preliminary declaratory relief ordering the same. Pursuant to its habeas jurisdiction, the Court should order release in the event of noncompliance with this procedural remedy."

In opposition to the motion for PI, defendants offered "a single core argument upon which most of its other contentions rely: The No-Release Policy does not exist." Instead, defendants claim that they are exercising discretion in the making of each individual custody determination. As their secondary argument, defendants asserted that "review is unavailable under the APA because Plaintiffs have not exhausted administrative remedies and because Plaintiffs do not challenge 'final agency action.'"

Following expedited briefing and a telephonic hearing, on March 31, Judge Hellerstein issued an order granting the plaintiffs' motion for preliminary injunction (PI). The order enjoined ICE's New York Field Office Director from following the No-Release Policy and to return to its pre-June 2017 practice of making individualized assessments about whether detention is justified by flight risk or danger. The defendants are required to file a report by April 17, 2020, identifying "all persons thus arrested by or under the authority of ICE's New York City Field Office and, of such persons, all such persons who have had their bond or recognizance application heard by an immigration judge." According to the NYCLU, "as a result of this ruling, many class members who are in ICE detention must be promptly evaluated for release. This expedited decision provides much-needed relief for people in detention who are exposed to the increasing threat of coronavirus spreading through crowded jails." In issuing the order, Judge Hellerstein did not provide a statement of its reasoning due to the expedited circumstances; however, "the Court, in due course, intends to deliver a more fulsome statement of its reasoning."

On April 27, plaintiffs filed a letter addressed to Judge Hellerstein requesting information regarding defendants' compliance with the PI. The defendants responded to the plaintiffs' letter on May 1. The Clearinghouse does not have access to these filings, so the extent to which the defendants have complied with the PI is unclear.

On May 4, Judge Hellerstein issued "a formal opinion explaining more fully the Court's reasoning for its oral ruling granting Plaintiffs' motion" for a PI. Judge Hellerstein concluded that "[p]laintiffs have established a clear and substantial likelihood of being able to demonstrate that the No-Release Policy exists . . . and that none of the procedural hurdles identified by Defendants preclude my awarding injunctive relief in Plaintiffs' favor." In concluding that the plaintiffs were likely to demonstrate that the No-Release Policy exists, Judge Hellerstein was persuaded by data provided by the plaintiff showing a "substantial increase in detention rates for final decisions in the New York Field Office beginning in 2017." Moreover, defendants acknowledged that a No-Release Policy "is inconsistent with the INA and regulations passed thereunder, at least without notice-and-comment rule making." Because "the Court ha[d] already found that Plaintiffs have shown they will suffer irreparable harm without relief and that the equities tilt in Plaintiffs' favor, injunctive relief is called for here." 2020 WL 2114984. (S.D.N.Y. May 04, 2020). Judge Hellerstein stated at the end of this opinion that the parties had disagreements regarding the implementation of the PI and that these disagreements "culminated in the government's filing of a motion to clarify and/or amend the injunction" on May 1.

After expedited briefing and hearing, Judge Hellerstein issued an order on May 15 denying the defendants' motion to clarify/amend the PI. Judge Hellerstein stated that

Defendants were required to: 1. Apply the injunction to all persons who were detained as of April 10, 2020 pursuant to 8 U.S.C. § 1226(a), except those persons already given an individualized custody determination by an immigration judge, and expeditiously determine, or redetermine, their custody status consistent with the injunction; and to 2. Report to the court on May 22, 2020, and weekly thereafter, as to the progress made, which shall be steady and expeditious. All custody determinations and redeterminations must be completed by June 5, 2020. If extensions are required, Defendants may make an application therefore, showing good cause.
Judge Hellerstein followed up his May 15 order, giving further explanation of his decision to deny the motion to amend or modify. On July 1, the parties filed a stipulated protective order.

On July 6, the defendants filed a notice of interlocutory appeal. The appeal was assigned USCA Case No. 20-2153. The appeal was withdrawn on October 13. 2020 WL 7973940.

On September 21, the district court filed an order directing the parties how to proceed. The court granted the Plaintiffs' request to conduct a deposition pertaining to training received by ICE personnel with respect to the court's earlier injunction.

On December 18, the plaintiffs filed a motion to enforce the preliminary injunction and the defendants filed their opposition on January 6, 2021. The plaintiffs filed their reply on January 13, however, the Clearinghouse does not have access to these documents.

The case was referred to Magistrate Judge Katherine H. Parker for settlement discussions; the parties engaged in various settlement conferences throughout the summer and fall of 2021.

Summary Authors

Aaron Gurley (5/18/2020)

Nicholas Gillan (11/12/2020)

Zofia Peach (2/13/2021)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/16909909/parties/velesaca-v-wolf/


Judge(s)
Attorney for Plaintiff

Belsher, Amy (New York)

Borchetta, Jennifer Rolnick (New York)

Attorney for Defendant

Berman, Geoffrey S. (New York)

Expert/Monitor/Master/Other

Aguirre, Guadalupe Victoria (New York)

Ding, Terry (New York)

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Documents in the Clearinghouse

Document

1:20-cv-01803

Docket [PACER]

Velesaca v. Wolf

Feb. 12, 2021

Feb. 12, 2021

Docket
1

1:20-cv-01803

Complaint

Feb. 28, 2020

Feb. 28, 2020

Complaint
44

1:20-cv-01803

Declaration of Andrea Saenz, Esq.

March 16, 2020

March 16, 2020

Declaration/Affidavit
43

1:20-cv-01803

Declaration of Marinda Van Dalen

March 16, 2020

March 16, 2020

Declaration/Affidavit
42

1:20-cv-01803

Declaration of Dr. Jamie Meyer

March 16, 2020

March 16, 2020

Declaration/Affidavit
41

1:20-cv-01803

Petitioners'-Plaintiffs' Memorandum of Law in Support of Motion for a Preliminary Injunction

March 16, 2020

March 16, 2020

Pleading / Motion / Brief

1:20-cv-01803

Teleconference (PI)

March 30, 2020

March 30, 2020

Transcript
67

1:20-cv-01803

Order Granting Plaintiffs' Motion for a Preliminary Injunction

March 31, 2020

March 31, 2020

Order/Opinion
78

1:20-cv-01803

Opinion and Order Granting Plaintiffs' Motion for a Preliminary Injunction

May 4, 2020

May 4, 2020

Order/Opinion

458 F.Supp.3d 224

91

1:20-cv-01803

Order Denying Motion to Modify and Clarify Preliminary Injunction

July 6, 2020

July 6, 2020

Order/Opinion

Docket

See docket on RECAP: https://www.courtlistener.com/docket/16909909/velesaca-v-wolf/

Last updated Dec. 17, 2024, 2:24 a.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: New York

Case Type(s):

Immigration and/or the Border

Special Collection(s):

COVID-19 (novel coronavirus)

Multi-LexSum (in sample)

Key Dates

Filing Date: Feb. 28, 2020

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

Persons placed in immigration detention facilities in the New York City area who were denied release or bond while awaiting immigration hearings.

Plaintiff Type(s):

Private Plaintiff

Attorney Organizations:

Bronx Defenders

New York Civil Liberties Union (NYCLU)

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Pending

Defendants

U.S. Department of Homeland Security, Federal

U.S. Immigration and Customs Enforcement, Federal

Facility Type(s):

Government-run

Case Details

Causes of Action:

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255

Declaratory Judgment Act, 28 U.S.C. § 2201

Mandamus, 28 U.S.C. § 1361

All Writs Act, 28 U.S.C. § 1651

Constitutional Clause(s):

Due Process: Procedural Due Process

Suspension Clause

Special Case Type(s):

Habeas

Available Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Non-settlement Outcome

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

Preliminary injunction / Temp. restraining order

Source of Relief:

Litigation

Content of Injunction:

Preliminary relief granted

Issues

General/Misc.:

Conditions of confinement

Fines/Fees/Bail/Bond

Pattern or Practice

COVID-19:

Mitigation Granted

Mitigation Requested

Release granted-group

Release-process created/modified

Release Requested

Immigration/Border:

Detention - conditions

Detention - criteria

Detention - procedures

Jails, Prisons, Detention Centers, and Other Institutions:

Habeas Corpus

Over/Unlawful Detention (facilities)

Placement in detention facilities

Medical/Mental Health Care:

Medical care, general