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Case Name Gomes v. US Department of Homeland Security IM-NH-0001
Docket / Court 1:20-cv-00453 ( D.N.H. )
State/Territory New Hampshire
Case Type(s) Immigration and/or the Border
Special Collection COVID-19 (novel coronavirus)
Attorney Organization ACLU Affiliates (any)
Case Summary
COVID-19 Summary: Detained immigrants sued the U.S. Department of Homeland Security alleging that the conditions of detention during the COVID-19 pandemic placed them at substantial risk of harm in violation of their due process rights. The court provisionally certified a class for the purpose of ... read more >
COVID-19 Summary: Detained immigrants sued the U.S. Department of Homeland Security alleging that the conditions of detention during the COVID-19 pandemic placed them at substantial risk of harm in violation of their due process rights. The court provisionally certified a class for the purpose of conducting bail hearings.

Three immigration detainees filed this petition for habeas corpus and putative class-action lawsuit in the U.S. District Court for the District of New Hampshire on April 15, 2020. The putative class consisted of all civil immigration detainees held by the Strafford County Department of Corrections (SCDOC). Represented by private counsel, the Federal Defender's Office, and the American Civil Liberties Union of New Hampshire, the plaintiffs sued the Acting Secretary of the U.S. Department of Homeland Security, the Acting Director of Immigration and Customs Enforcement, and the Superintendent of the Strafford County Department of Corrections under 28 U.S.C. § 2241 et seq. The plaintiffs argued that the policies and practices at SCDOC put the class members at substantial risk of harm, thereby violating the Fifth Amendment of the U.S. Constitution. These policies and practices included a failure to adequately address the spread of COVID-19 within the detention center.

The case was assigned to Chief Judge Landya McCafferty.

On May 1, 2020, the court held a hearing regarding several issues including class certification and bail hearings to allow temporary release while the litigation proceeded. Three days later, the court provisionally certified a class consisting of "all individuals who are now held in civil immigration detention at SCDOC." 2020 WL 2113642. The court also ruled that the defendants were being too conservative when deciding which detainees had serious medical conditions. Judge McCafferty ordered that the detainees suffering from an illness on the CDC's high-risk list would presumptively be treated as high-risk.

Judge McCafferty held that civil immigration detainees at high risk of COVID-19 were entitled to bail hearings while the case proceeded in a May 14, 2020 opinion. She reasoned that detainees with serious medical needs were likely to succeed on the merits of their due process claim. But she did not decide whether low-risk detainees were also entitled to a bail hearing. 2020 WL 2514541.

On May 15, 2020, the defendants filed a motion to dismiss. They argued that the plaintiffs lacked Article III standing, that they could not seek relief via a habeas petition, that the alleged facts did not constitute a violation of the Fifth Amendment, and that the plaintiffs failed to put them on notice of the allegations.

During the May 1 hearings, the court had discovered that several inmates' medical records were incomplete. It turned out that ICE detention centers did not forward detainees' medical records when they were transferred. That meant some detainees struggled to establish that they suffered from illnesses that put them in a high-risk group. To remedy this problem, the court held that if no records were available from SCDOC, detainees could still establish they suffered from a serious medical problem by submitting credible testimony about it in a May 20, 2020 order. 2020 WL 2605762.

On May 21, 2020, the court denied the plaintiffs' motion for a preliminary injunction and an emergency request to grant bail hearings for eight detainees before transferring them from SCDOC. Judge McCafferty reasoned that the plaintiffs had neither shown that the court had the power to stop all SCDOC transfers nor that enjoining the transfers was necessary. But the court was "hopeful that respondents will reassess the situation and decide to test . . . detainees before transferring them," after one detainee tested positive for COVID-19. 2020 WL 2598180.

The court denied the defendants' motion to dismiss on July 16, 2020. Judge McCafferty had "no trouble finding that petitioners have standing" because COVID-19 was spreading rapidly through detention centers and had already infected two putative class members. She then observed that whether the plaintiffs could use a petition for habeas corpus to secure a less restrictive form of custody (here, home confinement) presented a "difficult intermediate case" but concluded they could under First Circuit precedent. She also rejected the defendants' due process and fair notice arguments. 2020 WL 3258627.

On July 1, 2020, Judge McCafferty found that low-risk detainees were not entitled to bail hearings before a ruling on the merits of their claims. She noted that the Supreme Court had not yet decided whether a willful indifference or objective standard applied to conditions-of-confinement claims by civil detainees. But it didn't matter: the detainees failed to meet even the objective test because COVID-19 did not pose a greater threat to the low-risk detainees than it did to "members of the society at large," and the defendants had taken reasonable steps to protect against it. 2020 WL 3577302.

That summer, the U.S. Supreme Court decided that an immigrant's request for an additional opportunity to seek asylum fell outside the traditional scope of the writ of habeas corpus in Thuraissigiam v. Department of Homeland Security. In response, the defendants sought reconsideration of the court's decision to deny their motion to dismiss. But Judge McCafferty found that Thuraissigiam "has little applicability" to this case because the plaintiffs did not seek review of asylum eligibility and denied the defendants' motion on September 28, 2020. 2020 WL 5769465.

Throughout August and September, the court conducted bail hearings for individual detainees. The case is ongoing as of October 19, 2020.

Jack Hibbard - 07/29/2020
Timothy Leake - 10/19/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Due Process: Substantive Due Process
Content of Injunction
Preliminary relief denied
COVID-19
Mitigation Granted
Mitigation Requested
Release Requested
Defendant-type
Corrections
General
Bathing and hygiene
Classification / placement
Conditions of confinement
Habeas Corpus
Placement in detention facilities
Sanitation / living conditions
Immigration/Border
Constitutional rights
Detention - conditions
Detention - criteria
Undocumented immigrants - rights and duties
Medical/Mental Health
Medical care, general
Plaintiff Type
Private Plaintiff
Special Case Type
Habeas
Type of Facility
Government-run
Causes of Action Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Defendant(s) Acting Director of Immigration and Customs Enforcement
Acting Secretary of the Department of Homeland Security
Superintendent of Strafford County Department of Corrections
Plaintiff Description Civil immigration detainees on behalf of a provisionally-certified class consisting of "all individuals who are now held in civil immigration detention at [the Strafford County Department of Corrections]."
Indexed Lawyer Organizations ACLU Affiliates (any)
Class action status sought Yes
Class action status outcome Granted
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 04/15/2020
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
D.N.H.
10/15/2020
1:20-cv-00453-LM
IM-NH-0001-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D.N.H.
04/17/2020
First Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 and Class Complaint for Declaratory and Injunctive Relief [ECF# 5]
IM-NH-0001-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
04/20/2020
Notice of Motion and Motion for Preliminary Injunction and Motion for Expedited Discovery [ECF# 7 & 7-1 to 7-5]
IM-NH-0001-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
04/20/2020
Notice of Motion and Emergency Motion for Expedited Bail Hearings for Plaintiffs and all Putative Class Members [ECF# 9 & 9-1]
IM-NH-0001-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
04/20/2020
Petitioners-Plaintiffs' Motion for Class Certification and Appointment of Class Counsel [ECF# 14, 14-1, 14-2 & 14-3]
IM-NH-0001-0008.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
05/04/2020
Order [ECF# 50] (2020 WL 2113642)
IM-NH-0001-0001.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
05/04/2020
Order [ECF# 52]
IM-NH-0001-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
05/14/2020
Order [ECF# 123] (2020 WL 2514541)
IM-NH-0001-0009.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
05/20/2020
Order on Medical Evidence [ECF# 154] (2020 WL 2605762)
IM-NH-0001-0003.pdf | WESTLAW | Detail
Source: Bloomberg Law
D.N.H.
05/21/2020
Order [ECF# 156] (2020 WL 2598180)
IM-NH-0001-0004.pdf | WESTLAW | Detail
Source: Bloomberg Law
D.N.H.
06/16/2020
Order [ECF# 204] (2020 WL 3258627)
IM-NH-0001-0010.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
07/01/2020
Order [ECF# 218] (2020 WL 3577302)
IM-NH-0001-0011.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D.N.H.
09/28/2020
Order [ECF# 293] (2020 WL 5769465)
IM-NH-0001-0012.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges McCafferty, Landya B. (D.N.H.) show/hide docs
IM-NH-0001-0001 | IM-NH-0001-0002 | IM-NH-0001-0003 | IM-NH-0001-0004 | IM-NH-0001-0009 | IM-NH-0001-0010 | IM-NH-0001-0011 | IM-NH-0001-0012 | IM-NH-0001-9000
Plaintiff's Lawyers Abramson, Ronald (New York) show/hide docs
IM-NH-0001-0005 | IM-NH-0001-0006 | IM-NH-0001-0008 | IM-NH-0001-9000
Ayer, Timothy C. (New Hampshire) show/hide docs
IM-NH-0001-9000
Bissonnette, Gilles R (New Hampshire) show/hide docs
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Calderon, Marx (Massachusetts) show/hide docs
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Cho, Eunice (District of Columbia) show/hide docs
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Deane, W. Daniel (Massachusetts) show/hide docs
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Fathi, David Cyrus (District of Columbia) show/hide docs
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Gilbert, Laurel (Massachusetts) show/hide docs
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Green, Cathy J. (Connecticut) show/hide docs
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Jadwat, Omar C. (New York) show/hide docs
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Kim, SangYeob (New Hampshire) show/hide docs
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Klementowicz, Henry (New Hampshire) show/hide docs
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Mirhashem, Behzad (New Hampshire) show/hide docs
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Missett, Colin (Massachusetts) show/hide docs
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Newman, John P. (New Hampshire) show/hide docs
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O'Connell, W. Scott (New Hampshire) show/hide docs
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Quillen, Henry Clay (New Hampshire) show/hide docs
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Strauss, Michael (New Hampshire) show/hide docs
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Tan, Michael K. T. (New York) show/hide docs
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Vicinanzo, David A. (Massachusetts) show/hide docs
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Warecki, Nathan P. (New Hampshire) show/hide docs
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White, Emily Assunta (New Hampshire) show/hide docs
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Defendant's Lawyers Cohen, Frances Susan (New Hampshire) show/hide docs
IM-NH-0001-9000
Davis, John S. (New Hampshire) show/hide docs
IM-NH-0001-9000
Dronzek, Anna (New Hampshire) show/hide docs
IM-NH-0001-9000
Konesky, Georgiana L. (New Hampshire) show/hide docs
IM-NH-0001-9000
Le, Cam T. (New Hampshire) show/hide docs
IM-NH-0001-9000
MacDonald, Georgiana (New Hampshire) show/hide docs
IM-NH-0001-9000
Ollila, Terry L. (New Hampshire) show/hide docs
IM-NH-0001-9000
Rabuck, Robert J. (New Hampshire) show/hide docs
IM-NH-0001-9000
Weiland, Kasey A. (New Hampshire) show/hide docs
IM-NH-0001-9000

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