                                PRECEDENTIAL
                                     ICO-005E

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                 No. 20-1784
                _____________

AARON HOPE; IWAN RAHARDJA; JESUS DE LA PENA;
RAKIBU ADAM; DUC VIET LAM; YELENA MUKHINA;
   NAHOM GEBRETNISAE; ISMAIL MUHAMMED;
  GLENN WEITHERS; KONSTANTIN BUGARENKO;
     BRISIO BALDERAS-DOMINGUEZ; VIVIANA
CEBALLOS; WILDERS PAUL; MARCOS JAVIER ORTIZ
  MATOS; ALEXANDER ALVARENGA; ARMANDO
  AVECILLA; COSWIN RICARDO MURRAY; EDWIN
 LUIS CRISOSTOMO RODRIGUEZ; ELDON BERNARD
 BRIETTE; DEMBO SANNOH; JESUS ANGEL JUAREZ
           PANTOJA; ALGER FRANCOIS

                      v.

 WARDEN YORK COUNTY PRISON; WARDEN PIKE
      COUNTY CORRECTIONAL FACILITY;
    DIRECTOR PHILADELPHIA FIELD OFFICE
 IMMIGRATION AND CUSTOMS ENFORCEMENT;
 DIRECTOR UNITED STATES IMMIGRATION AND
         CUSTOMS ENFORCEMENT;
 SECRETARY UNITED STATES DEPARTMENT OF
          HOMELAND SECURITY,
                               Appellants
          ____________________________________

      On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                  (D.C. No. 1-20-cv-00562)
      District Judge: The Honorable John E. Jones, III
      ______________________________________

                 Argued June 18, 2020
 Before: SMITH, Chief Judge, HARDIMAN and SCIRICA,
                    Circuit Judges.1

                (Opinion filed: August 25, 2020)

David Byerley
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, DC 20044

Jeffrey S. Robins
United States Department of Justice
Office of Immigration Litigation
Room 6040
P.O. Box 878
Washington, DC 20044

Scott G. Stewart [Argued]
United States Department of Justice
950 Pennsylvania Ave., N.W.

      1
          Judge Shwartz is recused from this proceeding.




                                2
Washington, DC 20530
     Counsel for Appellants

Lawrence J. Joseph
Suite 700-1A
1250 Connecticut Avenue, N.W.
Washington, DC 200
       Counsel for Amicus Immigration Reform Institute in
       favor of Appellants

Eunice H. Cho
David C. Fathi
American Civil Liberties Union
915 15th St., N.W.
6th Floor
Washington, DC 20003

Carla G. Graff
Kelly A. Krellner
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104

Stephen B. Kang
Cecillia D. Wang
American Civil Liberties Union Foundation
39 Drumm Street
San Francisco, CA 94111

Erika B. Nyborg-Burch
Vanessa Stine
Muneeda S. Talukder




                              3
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19106

Witold J. Walczak, Esq. [Argued]
American Civil Liberties Union
P.O. Box 23058
Pittsburgh, PA 15222
       Counsel for Appellees

Kristin A. Macleod-Ball
American Immigration Counsel
1318 Beacon Street
Suite 18
Brookline, MA 02446
       Counsel for Amicus American Immigration Council in
       favor of Appellees

Susanna M. Buergel
Paul Weiss Rifkind Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019
      Counsel for Amicus Robert L. Cohen, M.D., Joe
      Goldenson, M.D., Michael Puisis, D.O., and Brie
      Williams, M.D., M.S., in favor of Appellees

                        _________

               OPINION OF THE COURT
                     _________




                            4
HARDIMAN, Circuit Judge.

       On April 7, 2020, the United States District Court for
the Middle District of Pennsylvania ordered the immediate
release of twenty-two immigration detainees (collectively,
Petitioners) from the York County Prison (York) and Pike
County Correctional Facility (Pike) amidst the COVID-192
pandemic. It did so ex parte, by granting Petitioners’ motion
for temporary restraining order (TRO) without affording the
Government an opportunity to be heard. After staying its April
7, 2020 order, the District Court again mandated Petitioners’
release on April 10, 2020. The Government appealed both
orders. As we explained in Hope v. Warden York County
Prison, 956 F.3d 156, 161–62 (3d Cir. 2020) (Hope I), the
District Court’s orders—which purported to be TROs—were
in effect mandatory preliminary injunctions. Having
determined in Hope I that we have jurisdiction, we now
consider the merits of the Government’s appeal.

                                I

       This case followed closely on the heels of a similar one
decided by the District Court. See Thakker v. Doll, — F. Supp.
3d —, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020). In
Thakker, immigration detainees sought release from their
detention in York, Pike, and a third facility. The District Court
held the detainees were likely to succeed on their claim that
their detention deprived them of substantive due process

       2
         COVID-19 “is a highly contagious respiratory virus
that poses unique risks in population-dense facilities.” Hope v.
Warden York Cnty. Prison, 956 F.3d 156, 157 n.2 (3d Cir.
2020) (Hope I) (quoting United States v. Raia, 954 F.3d 594,
595–96 (3d Cir. 2020)).




                               5
because of their advanced ages and medical histories. Id. at *9.
So it ordered their release.

       Three days after the District Court issued its order in
Thakker, Petitioners filed their “Verified Petition for Writ of
Habeas Corpus and Complaint for Emergency Injunctive
Relief” seeking release from custody and alleging they were at
risk of serious harm from COVID-19 while detained at York
and Pike. They filed a joint habeas petition even though they:
(1) vary in age from 28 to 69, with only one of them older than
65; (2) have divergent health conditions; (3) were detained for
various reasons; (4) have unique criminal histories; (5) have
individual flight risk profiles; and (6) have diverse home and
family situations. Despite those distinguishing characteristics,
the petition alleged they are “united by the fact that they are
over age 65 and/or adults who have a serious pre-existing
medical condition” and that “the United States Centers for
Disease Control has determined [their conditions] put[] them
at significantly higher risk of severe disease and death if they
contract COVID-19.” App. 28. The petition further averred
that conditions at York and Pike place Petitioners at higher risk
to contract COVID-19 because “risk mitigation is impossible”
there. App. 79. They claimed their confinement deprives them
of substantive due process because it constitutes punishment
and because Respondents are deliberately indifferent to their
serious medical needs. According to Petitioners, only release
will rectify their unconstitutional confinement.

       Petitioners provided a general description of their health
conditions and little detail about their immigration
circumstances. The petition stated that some are lawful
permanent residents, while others seek adjustment of status
through an ill spouse or because they have lived in this country
since they were children. The petition described the criminal




                               6
records and histories for very few of the Petitioners and did so
summarily. Federal law required some to be detained while
others were detained at the discretion of the Secretary of the
Department of Homeland Security or an immigration judge.
See 8 U.S.C. § 1226(a), (c); and 8 C.F.R. §§ 1003.19,
1236.1(c); see also Nielsen v. Preap, 139 S. Ct. 954, 958–59
(2019).

        The petition was accompanied by a motion for TRO, but
Petitioners did not request ex parte relief. In fact, they emailed
their filings to counsel for the Government and asked the Court
to “immediately schedule a hearing.” App. 86. Even though
Petitioners’ counsel promptly (and appropriately) engaged
opposing counsel in the adversary process, the District Court
entered its April 7 order ex parte without a hearing, relying
heavily on its prior findings and decision in Thakker.

       The April 7 order commanded the Government to
immediately release Petitioners “on their own recognizance.”
App. 14. It also required Petitioners to self-quarantine for
fourteen days after their release. Id. The terms of the injunction
were to expire on April 20, 2020 at 5:00 p.m. Id. Finally, the
Court ordered the Government—from which it had not yet
heard—to show cause “why the [order] should not be
converted into a preliminary injunction.” Id.

        Less than five hours after the April 7 ex parte order was
entered on the docket, the Government entered its appearance,
filed a motion to stay the immediate release order, and sought
reconsideration based on the declaration of Assistant Field
Office Director Joseph Dunn. The District Court granted a
temporary stay of its ex parte order and ordered Petitioners to
respond to the motion for reconsideration, which they did on
April 8. That same day, the Government responded to the




                                7
petition and motion for TRO. Also on April 8, the Court
scheduled a status conference for April 9, which it apparently
held off the record. On April 10, the Government filed another
declaration of Director Dunn.

        Later on April 10, and again without holding a hearing
and without discussing the Government’s response in
opposition to Petitioners’ filings, the District Court entered an
order: (1) denying reconsideration of its April 7 order; (2)
lifting the temporary stay; and (3) reiterating the relief
provided by the April 7 order, again mandating the release of
Petitioners that day. App. 20–21. Like the April 7 order, the
April 10 order instructed Petitioners to self-quarantine for
fourteen days after their release. App. 21.3

       The April 10 order purported to expire on April 20,
2020, but contradicted itself in two ways. It extended the
“release period . . . until such time as the COVID-19 state of
emergency as declared by the Governor of the Commonwealth
of Pennsylvania is lifted, or by further Order of this Court.” Id.
at 21. And it terminated the release period “immediately if a
Petitioner absconds.” Id.

       The April 10 order also imposed new conditions on
both parties, stating:

           a. This Order requires Petitioners to comply
              with all Executive Orders . . . as well as
              national, state and local guidance


       3
         The Government agreed to the release of Duc Viet
Lam and Iwan Rajardja, so they were not included in the
District Court’s second release order.




                                8
              regarding staying at home, sheltering in
              place, and social distancing;
         b.   This Order does not prevent the
              government from taking Petitioners back
              into custody should they commit any
              further crimes or otherwise violate the
              terms of their release;
         c.   The Petitioners shall report their
              whereabouts once per week to their
              attorneys, who in turn shall report to the
              Respondents if a Petitioner has
              absconded;
         d.   The Petitioners must appear at all
              hearings pertaining to their removal
              proceedings, and in the event that they are
              subject to a final order of deportation for
              which arrangements have been finalized
              within the period of this Order, they shall
              fully comply with the said order of
              deportation and all instructions pertaining
              thereto; and
         e.   Respondents       may     impose      other
              reasonable nonconfinement terms of
              supervision that would not require
              Petitioners to violate national, state and
              local guidance regarding staying at home,
              sheltering in place, and social distancing.

App. 21–22 (emphases added).

      The Government timely appealed the April 7 and April
10 orders.




                               9
                              II

      The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1292(a)(1).
Hope I, 956 F.3d at 159 n.5, 162.

                              III

        We review the District Court’s orders under the
standard of review for preliminary injunctions because they
granted preliminary injunctive relief within the meaning of 28
U.S.C. § 1291(a)(1). See Hope I, 956 F.3d at 162. Rule 65 of
the Federal Rules of Civil Procedure imposes preconditions on
the issuance of injunctions, including TROs. For an injunction
to issue:

      the plaintiffs had to demonstrate (1) that they are
      reasonably likely to prevail eventually in the
      litigation and (2) that they are likely to suffer
      irreparable injury without relief. If these two
      threshold showings are made the District Court
      then considers, to the extent relevant, (3) whether
      an injunction would harm the [defendants] more
      than denying relief would harm the plaintiffs and
      (4) whether granting relief would serve the
      public interest.

K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99,
105 (3d Cir. 2013) (internal quotations and citations omitted).
Because the Court granted a mandatory injunction, a
heightened standard applies. Bennington Foods, LLC v. St.
Croix Renaissance Grp., LLP, 528 F.3d 176, 179 (3d Cir.
2008). So Petitioners bore a “particularly heavy” burden,
Acierno v. New Castle Cnty., 40 F.3d 645, 653 (3d Cir. 1994),




                              10
requiring them to show a substantial likelihood of success on
the merits and that their “right to relief [is] indisputably clear,”
Trinity Indus., Inc. v. Chi. Bridge & Iron Co., 735 F.3d 131,
139 (3d Cir. 2013) (quoting Communist Party of Ind. v.
Witcomb, 409 U.S. 1235, 1235 (1972)).

        We review the District Court’s findings of fact for clear
error, its legal conclusions de novo, and its decision to grant
injunctive relief for abuse of discretion. See K.A. ex rel. Ayers,
710 F.3d at 105. An abuse of discretion exists when the
decision rests “on an erroneous view of the law or on a clearly
erroneous assessment of the evidence,” Cooter & Gell v.
Hartmax Corp., 496 U.S. 384, 405 (1990), which includes an
improper application of the correct law to the facts, United
States v. Reyes-Romero, 959 F.3d 80, 92 (3d Cir. 2020). Clear
error exists “when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

                                IV

       With the legal framework just described in mind, we
begin with the Government’s procedural challenges. It
contends the District Court erred by granting relief ex parte.
The Government also claims the District Court erred when the
Court absolved Petitioners of their duty to show entitlement to
injunctive relief by ordering the Government to show cause




                                11
why the Petitioners were not entitled to a mandatory injunction
and by applying reconsideration standards.

                               A

        “As the Supreme Court has observed, ‘our entire
jurisprudence runs counter to the notion of court action taken
before reasonable notice and an opportunity to be heard has
been granted [to] both sides of a dispute.’” Hope I, 956 F.3d at
160 (quoting Granny Goose Foods Inc. v. Bhd. of Teamsters,
415 U.S. 423, 439 (1974)). And the Court has described due
process in this way:

       Parties whose rights are to be affected are
       entitled to be heard; and in order that they may
       enjoy that right they must first be notified. It is
       equally fundamental that the right to notice and
       an opportunity to be heard must be granted at a
       meaningful time and in a meaningful manner.

Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (internal quotations
and citations omitted).

       Despite these principles, a TRO may be entered ex
parte, but only if safeguards in Rule 65(b) are met. For
example, Rule 65(b)(3) requires an expedited preliminary
injunction hearing after an ex parte TRO is entered. And a
court may not convert an ex parte TRO into a preliminary
injunction without a hearing or issue an ex parte preliminary
injunction. See Granny Goose, 415 U.S. at 439 & n.14 (Rule
65(b)’s stringent requirements restrict ex parte TRO’s to




                               12
“preserving the status quo” and “preventing irreparable harm”
only for the time “necessary to hold a hearing, and no longer”).

        Although Petitioners stated their prayer for relief
alternatively as a request for a TRO or for a preliminary
injunction, they never sought ex parte relief and their counsel
advised the Court that they promptly served the Government.
Accordingly, Petitioners’ counsel did not include a Rule
65(b)(1)(B) certification required for ex parte relief. The Court
failed to explain why the order had to issue without affording
the Government an opportunity to be heard, in violation of
Rule 65(b)(2). And it did so even though Petitioners requested
a hearing and counsel for Respondents were well known to the
Court from their involvement in the Thakker case.4 All this was
contrary to law.

                               B

         The District Court’s initial failure to include the
Government in the proceedings created problems downstream
when it issued the April 10 order. Instead of acknowledging
the Government’s substantive response to the petition and
motion consistent with the prerequisites for issuing injunctive
relief, the Court not only shifted the burden to the Government,
but also required it to surmount the high hurdle applicable to a

       4
         The Respondents in Thakker and Hope are identical
except for one party (Clinton County). Each Respondent in
Hope is represented by the same counsel from Thakker and the
same attorney entered her appearance on behalf of the
Respondent detention facilities involved in both actions.
Compare Thakker v. Doll, M.D. Pa. Docket No. 1:20-cv-
00480, with Hope v. Doll, M.D. Pa. Docket No. 1:20-cv-00562.




                               13
motion for reconsideration. Hope I, 956 F.3d at 162. Petitioners
counter that the Government invited the error by filing its
reconsideration motion. We disagree.

        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. See Gonzales
v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.
418, 429 (2006) (“The point remains that the burdens at the
preliminary injunction stage track the burdens at trial.”); see
also FED. R. CIV. P. 65(b)(3) (in expediting preliminary
injunction hearing held after TRO issues “the party who
obtained the order must proceed with the motion”). The burden
to prove clear entitlement to injunctive relief always stays with
the party requesting that relief. So the District Court erred
when its April 10 order required the Government to show: (1)
new evidence before it was ever afforded the chance to present
any evidence before the April 7 order was issued; (2) a change
in the law before it was allowed to brief the Court; and (3) the
need to correct a clear error of law or prevent manifest
injustice. App. 18 (citing Max’s Seafood Café by Lou Ann, Inc.
v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). For these
reasons, we hold that the District Court abused its discretion
when it applied reconsideration standards to issue the April 10
order.

                               C

       The April 10 order violates other provisions of Rule 65.
It mandates Petitioners’ release until the Governor of
Pennsylvania lifts the state of emergency or the Court orders
otherwise, while purporting to expire on April 20, 2020. The
contingent nature of the Governor’s state of emergency
rendered the order indefinite contrary to the fourteen-day time




                               14
limit in Rule 65(b)(2). See Hope I, 956 F.3d at 162. And it also
rendered the provision indeterminate in violation of the
specification requirements of Rule 65(d).

        Rule 65(d) provides that “[e]very order granting an
injunction and every restraining order must state its terms
specifically” and “describe in reasonable detail . . . the act or
acts restrained or required.” FED. R. CIV. P. 65(d)(1)(B) & (C)
(emphasis added). These requirements are not mere
technicalities. They “relate[] to the court’s awesome civil and
criminal contempt powers. Persons may not be placed at risk
of contempt unless they have been given specific notice of the
norm to which they must pattern their conduct.” Inmates of
Allegheny Cnty. Jail v. Wecht, 754 F.2d 120, 129 (3d Cir. 1985)
(citations omitted). We recognize that temporary and
preliminary injunctive relief orders issue in the context of
“exigent circumstances and at times may lack the precision of
final decrees.” Ideal Toy Corp. v. Plawner Toy Mfg. Corp., 685
F.2d 78, 84 (3d Cir. 1982). But “Rule 65(d) was designed to
prevent uncertainty and confusion on the part of those faced
with injunctive orders, and to avoid the possible founding of a
contempt citation on a decree too vague to be understood.”
Schmidt v. Lessard, 414 U.S. 473, 476 (1974). In short, a party
must “receive fair and precisely drawn notice of what the
injunction actually prohibits [or requires].” Granny Goose, 415
U.S. at 444.

       Other terms of the District Court’s April 7 and 10 orders
are too indefinite to satisfy Rule 65(d). Under that subsection,
an injunction “should be phrased in terms of objective actions,
not legal conclusions.” United States v. Askins & Miller
Orthopaedics, P.A., 924 F.3d 1348, 1362 (11th Cir. 2019)
(internal quotations and citations omitted). The April 10 order
permits the Government to impose “reasonable




                               15
nonconfinement terms of supervision.” App. 22. But
“reasonable” is capacious enough to provoke disagreement
between Petitioners and the Government regarding the
propriety of any additional terms of supervision. The order also
permits the Government to re-detain Petitioners if “they
commit any further crimes” or “violate the terms of their
release.” App. 21. That provision raises more questions than it
answers, however. Do “further crimes” include traffic
violations? We doubt that was the District Court’s intention.
Perhaps the Court meant only felonies? But Petitioners could
“violate the terms of their release” without committing any
crime at all. So the April 10 order is not just vague, it is also
over- and under-inclusive. The Government would be acting at
its peril if it were to re-detain Petitioners.

        The April 7 and April 10 orders also require affirmative
acts by Petitioners, subject to contempt and re-detention if they
fail to comply. Both orders mandate self-quarantine without
explaining what that entails. The April 10 order requires
Petitioners “to comply with all . . . national, state and local
guidance regarding staying at home, sheltering in place, and
social distancing,” id., but does not specify what constitutes
“guidance.” It also compels Petitioners to report their
whereabouts to their counsel, who in turn are required to report
absconsion. App. 21–22. Must counsel report only known
absconsion? What about likely absconsion or a failure to report
each week? The lack of specificity as to affirmative acts
required by Petitioners and their counsel in the order also
contravenes Rule 65(d).

       Finally, the District Court failed to order bond. Under
Rule 65(c), the absence of a bond precludes issuance of an
injunction. See Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d
412, 426 (3d Cir. 2010) (court can excuse bond required for




                               16
injunction only on “specific finding” that “rare exception”
applies). These violations of Rule 65 were legal error.

                                V

        Procedural missteps often lead to substantive errors, and
that is true in this case as well. The District Court abused its
discretion when it held that Petitioners showed a substantial
likelihood of success on the merits of their claims. Before we
address that issue, however, we must determine whether
Petitioners properly brought their claims via petition for writ
of habeas corpus.

        The parties dispute whether release sought on the basis
of conditions of confinement is cognizable under the habeas
statute. “Of course, the party who brings a suit is master to
decide what law he will rely upon.” Fair v. Kohler Die &
Specialty Co., 228 U.S. 22, 25 (1913). Petitioners brought an
action seeking only the writ of habeas corpus pursuant to 28
U.S.C. § 2241, and they reiterate on appeal that they do not
“seek[] to modify their conditions [of confinement]” and “the
only relief sought by Petitioners—the only adequate relief for
the constitutional claims—is release, which is unequivocally a
habeas remedy.” Pet’rs’ Br. 50 (internal quotations and
citations omitted).

       The Government contends that “[h]abeas [] is an
improper vehicle . . . for detainees to challenge their conditions
of confinement.” Gov’t’s Br. 29. If the Government is correct,
Petitioners cannot show likelihood of success. The District
Court held that Petitioners properly brought their petition for
release as one seeking the writ of habeas corpus. We agree.




                               17
       The traditional function of the writ of habeas corpus is
to secure release from unlawful executive detention. Munaf v.
Geren, 553 U.S. 674, 693 (2008). Where a petitioner seeks
release from detention, habeas (not a § 1983 action seeking
release) is proper. Even where a complaint seeks both damages
pursuant to § 1983 and habeas relief, the damages action
should be stayed while habeas is exhausted. Tedford v.
Hepting, 990 F.2d 745, 749 (3d Cir. 1993).

        The Government argues that under Leamer v. Fauver,
288 F.3d 532, 542 (3d Cir. 2002), Petitioners cannot challenge
their conditions via habeas. Leamer was a prisoner who filed a
§ 1983 action challenging prison restrictions that denied him
required treatment. We determined that Leamer’s claim was
properly brought under § 1983. Leamer, 288 F.3d at 542. Our
discussion of challenges requiring resort to habeas and our
holding that the use of § 1983 was appropriate in that case does
not undermine the availability of habeas to Petitioners here,
however.

      In addressing the nature of habeas and § 1983, we
observed:

       Although both § 1983 and habeas corpus allow
       prisoners to challenge unconstitutional conduct
       by state officers, the two are not coextensive
       either in purpose or effect. Habeas relief is
       clearly quite limited: “The underlying purpose of
       proceedings under the ‘Great Writ’ of habeas
       corpus has traditionally been to ‘inquire into the
       legality of the detention, and the only judicial
       relief authorized was the discharge of the
       prisoner or his admission to bail, and that only if
       his     detention     were     found     to     be




                               18
       unlawful.’” Powers of Congress and the Court
       Regarding the Availability and Scope of
       Review, 114 Harv. L. Rev. 1551, 1553
       (2001) . . . . There is only a narrow subset of
       actions that arguably might properly be brought
       as either, that is, where the deprivation of rights
       is such that it necessarily impacts the fact or
       length of detention. In a series of decisions, the
       Supreme Court has made it clear that for those
       cases, the narrower remedy, the habeas petition,
       is the only available avenue of relief.

Leamer, 288 F.3d at 540. We expressly recognized that where
the remedy sought was release from detention, the party was
required to “proceed by way of habeas petition.” Id. at 540–41
(citing Edwards v. Balisok, 520 U.S. 641 (1997)).

       As early as 1949, our Court recognized the potential for
habeas as a means of challenging unconstitutional conditions
of confinement. See Johnson v. Dye, 175 F.2d 250, 256 (3d Cir.
1949) (en banc) (holding that habeas relief releasing petitioner
was the appropriate remedy to avoid cruel and unusual
punishment inflicted in Georgia prisons), rev’d on other
grounds, Dye v. Johnson, 338 U.S. 684 (1949) (exhaustion
required). And in Preiser v. Rodriguez, 411 U.S. 475, 499
(1973), the Supreme Court recognized that a challenge to
conditions of confinement rendering otherwise lawful custody
unconstitutional arguably would lie in habeas. As recently as
2017, the Supreme Court observed that this remains an open
question, however. Ziglar v. Abbasi, 137 S. Ct. 1843, 1862–63
(2017).

       We have never held that a detainee cannot file a habeas
petition to challenge conditions that render his continued




                               19
detention unconstitutional. Although the context of the vast
majority of habeas cases involve challenges to criminal
judgments, the language of the habeas statute justifies resort to
the writ by non-prisoner detainees. Under 28 U.S.C. § 2241,
district courts may grant the writ, but their power to grant it is
restricted. For example, the writ is unavailable to persons
detained as enemy combatants. See 28 U.S.C. § 2241(e). This
suggests that, where the exclusion in § 2241(e) does not apply,
the writ is available to immigration detainees like Petitioners
here, who are not challenging convictions or sentences. So the
fact of Petitioners’ present confinement at York and Pike and
the constitutionality of their conditions of confinement is a
matter properly challenged by petition for the writ. Accord
Wilson v. Williams, 961 F.3d 829, 838 (6th Cir. 2020).

        In recognizing the viability of this § 2241 claim we are
not creating a garden variety cause of action. As the Supreme
Court has instructed: “habeas corpus is an extraordinary
remedy whose operation is to a large extent uninhibited by
traditional rules of finality and federalism, its use has been
limited to cases of special urgency, leaving more conventional
remedies for cases in which the restraints on liberty are neither
severe nor immediate.” Hensley v. Mun. Court, San Jose
Milpitas Judicial Dist., 411 U.S. 345, 351 (1973). We
acknowledged as much. See Ali v. Gibson, 572 F.2d 971 (3d
Cir. 1978), superseded by statute on other grounds as
recognized in Callwood v. Enos, 230 F.3d 627, 633 (3d Cir.
2000). There, we noted that the petitioner, who had been
convicted in the Virgin Islands of several counts of first-degree
murder, assault, and robbery, and who was later incarcerated
in Georgia, might not be able to assert a § 2241 claim. We
observed that, at best, his claim rose “to a possible habeas
attack on the conditions of confinement, cognizable in a federal




                               20
habeas action only in extreme cases.” Id. at 975 n.8. (emphasis
added). Given the extraordinary circumstances that existed in
March 2020 because of the COVID-19 pandemic, we are
satisfied that their § 2241 claim seeking only release on the
basis that unconstitutional confinement conditions require it is
not improper.5

       For these reasons, we hold that Petitioners’ claim that
unconstitutional conditions of confinement at York and Pike
require their release is cognizable in habeas.

                              VI

        We turn now to likelihood of success on the merits.
Petitioners claim their conditions of confinement violate the
Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution. As immigration detainees, Petitioners are entitled
to the same due process protections as pretrial detainees. E.D.
v. Sharkey, 928 F.3d 299, 306–07 (3d Cir. 2019). Petitioners
are in federal custody pursuant to the INA and housed in state
facilities, so they are protected by the Due Process Clauses of
the Fifth and Fourteenth Amendments. See Plyler v. Doe, 457
U.S. 202, 210 (1982). Although the Eighth Amendment does
not apply here, Whitley v. Albers, 475 U.S. 312, 318 (1986),
the substantive due process guarantees afforded detainees like
Petitioners are at least as robust as Eighth Amendment
protections afforded prisoners, Boring v. Kozakiewicz, 833
F.2d 468, 472 (3d Cir. 1987). Applying this framework, we
conclude the District Court abused its discretion when it held



       5
       We do not address at this time whether a § 2241
claim may be asserted in less serious circumstances.




                              21
that Petitioners showed a substantial likelihood of success on
the merits of their claims.

                               A

        Petitioners advanced their substantive due process
claim under two separate but related theories: (1) because of
their age and healthcare needs, the conditions at York and Pike
subject them to punishment; and (2) the Government was
deliberately indifferent to their serious medical needs. The
District Court determined Petitioners were likely to succeed
under both theories.

       The Government contends Petitioners can proceed only
under the deliberate indifference theory, citing to Sharkey, 928
F.3d at 309. There are two problems with this argument. First,
in Sharkey, we held the detainee plausibly stated a claim for
unconstitutional punishment for an alleged sexual assault by a
detention facility employee. Our discussion of deliberate
indifference related to the detainee’s claim against Sharkey’s
fellow employees and supervisor for their failure to protect the
detainee against the known risk of serious harm. 928 F.3d at
308. Second, we held long ago that substantive due process
proscribes punishment of non-prisoners. See Hubbard v.
Taylor, 399 F.3d 150, 158 (3d Cir. 2005) (Hubbard I). So the
District Court was correct to address both theories.

                               B

       We first address Petitioners’ claim that their detention
is unconstitutional punishment. In accordance with the
Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520, 549
(1979), detainees may not be punished before they are
adjudicated guilty. Hubbard v. Taylor (Hubbard II), 538 F.3d




                              22
229, 231 (3d Cir. 2008). Petitioners asserted—and the District
Court found—that, if Petitioners are exposed to COVID-19 and
if they contract the virus, their ages and medical conditions put
them at “imminent risk” of serious illness, including possible
death. App. 2, 9, 39–40 & nn. 2–3; Supp. App. 7. The District
Court articulated its findings as to the conditions of each
Petitioner that subjected the Petitioner to increased risk if they
contracted COVID-19. These individual findings are not clear
error. Nevertheless, the District Court erred in holding that
because age and medical conditions put them at increased risk
if they contracted the virus, Petitioners were likely to show the
Government subjected them to punishment.

        The touchstone for the constitutionality of detention is
whether conditions of confinement are meant to punish or are
“but an incident of some other legitimate governmental
purpose.” Hubbard II, 538 F.3d at 232 (quoting Bell, 441 U.S.
at 538). “[T]he ultimate question” is whether conditions are
“reasonably related to a legitimate governmental objective.”
Id. at 236 (quoting Bell, 441 U.S. at 549). If Petitioners are
subject to conditions unrelated to a legitimate governmental
objective, “we may infer ‘that the purpose of the governmental
action is punishment that may not be constitutionally inflicted
upon detainees qua detainees.’” Sharkey, 928 F.3d at 307
(quoting Hubbard II, 538 F.3d at 232). Hubbard I further
instructs that we consider the totality of the circumstances of
confinement, including any genuine privations or hardship
over an extended period of time, and whether conditions are
(1) rationally related to their legitimate purpose or
(2) excessive in relation to that purpose. Hubbard I, 399 F.3d
at 159–160; see, e.g., Union Cnty. Jail Inmates v. DiBuono,
713 F.2d 984, 995–96 (3d Cir. 1983) (though double-bunking
involved cramped, crowded cells for sleeping, it was not




                               23
punishment because it eliminated floor mattresses and
permitted more recreational space).

        In assessing whether conditions and restrictions are
excessive given their purposes, the courts must acknowledge
that practical considerations of detention justify limitations on
“many privileges and rights.” Bell, 441 U.S. at 545–46.
Though not a convicted prisoner, a detainee “simply does not
possess the full range of freedoms of an unincarcerated
individual.” Id. at 546. Thus, “[t]he fact of confinement as well
as the legitimate goals and policies of the [] institution limits
[Petitioners’] retained constitutional rights.” Id.

       Important here—and largely ignored by the District
Court and Petitioners—are the legitimate objectives and
difficulties of managing a detention facility, Hubbard II, 538
F.3d at 233, and the objectives of immigration detention:
ensuring appearance at detention proceedings and protecting
the public from harm. See DiBuono, 713 F.2d at 993; 8 U.S.C.
§ 1226(c).

       As the Supreme Court cautioned in Bell v. Wolfish:

       In determining whether restrictions or conditions
       are reasonably related to the Government’s
       interest in maintaining security and order and
       operating the institution in a manageable fashion,
       courts must heed our warning that such
       considerations are peculiarly within the province
       and professional expertise of corrections
       officials, and, in the absence of substantial
       evidence in the record to indicate that the
       officials have exaggerated their response to these




                               24
       considerations, courts should ordinarily defer to
       their expert judgment in such matters.

441 U.S. at 540 n.23 (citations omitted); see also Block v.
Rutherford, 468 U.S. 576, 584 (1984) (noting the “very limited
role that courts should play in the administration of detention
facilities”). We defer to administrators on matters of
correctional facility administration “not merely because the
administrator ordinarily will . . . have a better grasp of his
domain than the reviewing judge, but also because the
operation of our correctional facilities is peculiarly the
province of the Legislative and Executive Branches of our
Government not the Judicial.” Bell, 441 U.S. at 520.

       The District Court could see “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 Petitioners.” App. 10 (quoting Thakker, 2020
WL 1671563, at *8). But Petitioners’ confinement implicates
multiple legitimate governmental objectives, including: (1)
ensuring Petitioners’ appearances at removal proceedings; (2)
protecting the public; and (3) managing the detention facilities.
The District Court erred when it failed to consider these
legitimate objectives.

        As to the conclusion that conditions at York and Pike
were “unsanitary,” the District Court relied on evidence from
a prior case and ignored the Government’s improvements at
the facilities. In its April 7 decision, the Court made the
following findings as to conditions at York and Pike based on
its findings in Thakker and after considering only Petitioners’
filings:




                               25
       • four Pike detainees (other than Petitioners)
         and four Pike employees tested positive for
         COVID-19;
       • one York detainee tested positive;
       • staff leave the facilities and return but do not
         reliably wear gloves and masks when
         interacting with inmates;
       • temperature checks, even as to those thought
         to be exposed to the virus, were infrequent;
       • cell blocks housing individuals testing
         positive are not thoroughly evacuated and
         cleaned; and
       • symptomatic inmates remain in general
         housing for days, and even once
         quarantined, others exposed to them were
         not tested.

App. 7–8, 10. The Court observed (before the Government
could respond) that it saw no indication from Petitioners’
filings that conditions had improved since its decision in
Thakker because people tested positive at both York and Pike,
and it “assumed” positive COVID-19 cases must be much
higher. App. 7.

       Then, in its April 10 decision, when the Court
considered only the Government’s reconsideration motion, it
made just one additional comment we construe as a “finding”
as to conditions: “[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.” App.
20. The Petition and supporting declarations described as
“ideal” the social distancing parameter of six feet. The Court
made that “ideal” a sine qua non of constitutional detention for




                              26
individuals at higher risk of serious harm if they contract
COVID-19. In doing so, the Court was not “mindful that these
inquiries spring from constitutional requirements and that
judicial answers to them must reflect that fact rather than a
court’s idea of how best to operate a detention facility.” Bell,
441 U.S. at 539.

        Even more fundamentally, the District Court never
addressed the Government’s substantive response to the
petition and motion for TRO. Nor did it meaningfully consider
pertinent evidence on conditions provided by the Government,
including social distancing efforts at York and Pike. According
to the Government’s filings, in the wake of COVID-19, it is
complying with guidance from the CDC and epidemiologists
from ICE Health Services Corps., and both York and Pike were
operating at approximately 60 percent capacity (York can hold
2,245 inmates but had 1,341; Pike can hold 375 but had 221).
Upon admission, detainees were screened for disabilities and
conditions, as well as for fever, respiratory illness, exposure to
an area with many COVID-19 cases, and known contact with
someone who tested positive within the previous two weeks. If
there had been such contact, any exposed detainees would be
placed in a cohort for 14 days with daily monitoring for
symptoms. If a detainee presented with COVID-19 symptoms,
he or she was isolated and tested. Detainees who began to show
any COVID-19 symptoms were isolated, as were their
cellmates. Those testing positive were placed in medical
isolation and quarantined. In addition, York and Pike provided:
masks to detainees; hand sanitizer and hygiene education to
staff; and soap, water, and hard surface disinfectant to every
housing unit. Both facilities encouraged staff to use sanitizer,
soap, water, and disinfectant often and liberally. They
encouraged staff to clean high traffic and high contact areas




                               27
multiple times throughout the day and medical staff were on-
site around the clock with the ability to admit patients to the
local hospital. York and Pike also administered temperature
checks to staff and vendors and suspended tours and visitation.
Professional visits were contactless. Finally, all staff,
contractors, ICE Enforcement and Removal Operations
personnel, and medical staff wore N95 masks; kitchen staff
wore surgical masks; and isolated detainees wore N95 masks
when they left their cohort housing unit. At Pike, movement
was staggered and meals were served in cells. All of these
efforts were material to the District Court’s assessment of the
conditions challenged as punishment, yet it addressed none of
them.

        Bell requires us to consider whether the Government
imposed the challenged conditions for the express purpose of
punishment, and if not, whether they are rationally connected
to a legitimate purpose but excessive in relation to its purpose.
441 U.S. at 538.

       [I]f a particular condition or restriction of pretrial
       detention is reasonably related to a legitimate
       governmental objective, it does not, without
       more, amount to “punishment.” Conversely, if a
       restriction or condition is not reasonably related
       to a legitimate goal—if it is arbitrary or
       purposeless—a court permissibly may infer that
       the purpose of the governmental action is
       punishment that may not constitutionally be
       inflicted upon detainees qua detainees.

Id. at 539.




                                28
       Petitioners do not argue the Government subjected them
to any conditions at York and Pike intended to harm them.
Instead, they contend broadly the Government has no
legitimate interest in detaining them in violation of their
constitutional rights. But that truism sheds no light on the
merits of their claims. Nor did the District Court’s
determination that the Government has no legitimate interest
in detaining Petitioners in “unsanitary, tightly-packed
environments.” App. 10. In so concluding, the Court ignored
legitimate governmental objectives and did not assess the
conditions at York and Pike as of April 10.

        We also reject—as contrary to Supreme Court
precedent and federal statute—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. Detention of aliens
pending their removal in accordance with the INA is
constitutional and is supported by legitimate governmental
objectives. See Demore v. Kim, 538 U.S. 510, 531 (2003);
Wong Wing v. United States, 163 U.S. 228, 235 (1896). In fact,
Congress has deemed the detention of criminal aliens so
important that it is required by statute. 8 U.S.C. § 1226(c).
These congressional objectives held constitutional by the
Supreme Court—detention of aliens in removal proceedings
and mandatory detention of criminal aliens—render unsound
the District Court’s conclusion that civil detention of aliens in
removal proceedings is tantamount to punishment. See Nielsen,
139 S. Ct. at 959 (quoting § 1226(a)) (Congress, through 8
U.S.C. § 1226(a), “empowers the Secretary of Homeland
Security to arrest and hold an alien ‘pending a decision on
whether the alien is to be removed from the United States.’”);




                               29
see also 8 U.S.C. § 1226(c) (mandatory detention for those
convicted of crimes of moral turpitude, controlled substances
offenses, and terrorism offenses); 8 U.S.C. § 1231(a)(2)
(mandatory detention for certain aliens ordered removed); 8
U.S.C. § 1231(a)(6) (detention beyond removal period for
aliens ordered removed and determined a risk to the public or
not likely to comply with the order).

        Considering all the responsive measures specifically
implemented to detect and to prevent spread of the virus, the
challenges of facility administration during an unprecedented
situation, and the purposes served by detention—Petitioners
did not show a substantial likelihood of success on their claim
that the conditions of their confinement constitute
unconstitutional punishment. We therefore hold the District
Court erred as to its punishment determination.

                                C

        Petitioners argue in the alternative that the Government
deprived them of substantive due process 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). See Helling v. McKinney, 509 U.S. 25, 34–35
(1993) (recognizing claim of deliberate indifference of
officials to exposure to tobacco smoke that poses unreasonable
health risk); Palakovic v. Wetzel, 854 F.3d 209, 224 (3d Cir.
2017) (particular vulnerability to suicide due to mental health
conditions); Natale, 318 F.3d at 582 (particular vulnerability
due to insulin dependent diabetes). To establish deliberate
indifference, Petitioners must show the Government knew of
and disregarded an excessive risk to their health and safety.
Nicini v. Morra, 212 F.3d 798, 811 (3d Cir. 2000) (citing
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).




                                30
       Our decision in Palakovic—which involved a pretrial
detainee’s “particular vulnerability”—is relevant here. 854
F.3d at 218. There we addressed allegations that officials
showed deliberate indifference toward a detainee’s exposure to
a substantial risk of serious damage to his future health—that
his particular vulnerability to suicide combined with detention
conditions created a substantial risk of suicide and attempted
suicide. Id. at 226. We recognized even if detention officials
afford some care to the detainee, it still might not satisfy the
Constitution’s demands in every situation. Id. at 228. But
“mere disagreement” as to the response to the risk to
Petitioners in light of their medical condition will not support
constitutional infringement. Monmouth Cnty. Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987).
Deliberate indifference requires significantly more than
negligence. County of Sacramento v. Lewis, 523 U.S. 833,
849–50 (1998). Indeed, deliberate indifference “is a ‘subjective
standard of liability consistent with recklessness as that term is
defined in the criminal law.’” Natale, 318 F.3d at 582 (quoting
Nicini, 212 F.3d at 811).

       The context of the Government’s conduct is essential to
determine whether it shows the requisite deliberate
indifference that “shocks the conscience” for a substantive due
process violation. Lewis, 523 U.S. at 846. Just as we afford
leeway to prison medical officials in diagnosing and treating a
detainee’s physical and mental health, deference is due prison
administrators here. The Supreme Court cautioned in Lewis:

       Rules of due process are not . . . subject to
       mechanical application in unfamiliar territory.
       Deliberate indifference that shocks in one
       environment may not be so patently egregious in
       another, and our concern with preserving the




                               31
       constitutional proportions of substantive due
       process demands an exact analysis of
       circumstances before any abuse of power is
       condemned as conscience shocking.

523 U.S. at 850 (emphasis added).

       The District Court correctly observed that COVID-19
presents “highly unusual and unique circumstances,” App. 12,
that have “radically transformed our everyday lives in ways
previously inconceivable,” App. 6, and have “altered [our
world] with lightning speed . . . and unprecedented [results.]”
App. 13. So we must evaluate the Government’s response to
the virus in that context. But the Court’s orders do not indicate
any serious consideration of the Government’s recent efforts at
York and Pike, save for a passing reference in the April 10
order that the Government had “ramped up [] sanitation
protocols.” App. 20.

       In this context, Petitioners urge that because the virus
has no vaccine or cure, exposure to it is per se unconstitutional.
They also claim “[s]ocial distancing and proper hygiene” are
the only “effective means” to prevent Petitioners from
contracting the virus in detention, and “[p]reventative
measures remain impossible at [York and Pike].” App. 106. In
essence, they argue that the Government must eliminate
entirely their risk of contracting COVID-19. That task is not
the constitutional standard, however. Although the District
Court criticized the Government for the lack of “effective
containment measures,” and for not doing “nearly enough” to
combat COVID-19, App. 7–9, those critiques are not
tantamount to establishing the Government’s deliberate
indifference.




                               32
        Nor does a failure to eliminate all risk establish that the
Government was deliberately indifferent to their serious
medical needs. Recognizing challenges inherent in the
detention setting, CDC guidance suggests placing detainees
into cohorts where social distancing is not practical. CDC,
Interim Guidance on Management of Coronavirus Disease
2019 (COVID-19) in Correctional and Detention Facilities,
(last          visited           Aug.           3,          2020),
https://www.cdc.gov/coronavirus/2019-
ncov/community/correction-detention/guidance-correctional-
detention.html (explaining that social-distancing strategies
“will need to be tailored to the individual space in the facility
and the needs of the population and staff” and that “[n]ot all
strategies will be feasible in all facilities”). The petition and
supporting declarations rely on CDC literature and
recommendations. And the District Court relies heavily on its
decision in Thakker, which in turn relies on CDC guidance for
support. Yet the Court said nothing about CDC guidance
specific to detention facilities.

        The record shows that the Government increased its
efforts to minimize risk by improving hygiene and decreasing
exposure even as information on the virus changed. But the
Court undertook no analysis of those efforts. Instead, the Court
summarily concluded that the efforts were not enough. The
Court made no specific findings regarding how each Petitioner
was housed. Instead, it determined “that inmates are incapable
of social distancing in the facilities.” App. 20.

       In sum, we hold that Petitioners fell well short of
establishing that the Government was deliberately indifferent
toward their medical needs. Considering the record as a whole,
we have a definite and firm conviction that a mistake has been
committed. Petitioners did not show a likelihood of success,




                                33
much less a strong likelihood of success, that their substantive
due process rights were violated by either punishment or
deliberate indifference to their serious medical needs.

                               VII

       In addition to its errors regarding Petitioners’ likelihood
of success on the merits, the District Court erred in evaluating
irreparable harm to Petitioners in the absence of relief,
balancing the harms to each side, considering the public
interest, and fashioning an “all-or-nothing” remedy.

                                A

       Assuming Petitioners could succeed in showing
likelihood of success, before balancing the harms and
considering the public interest, the District Court was required
to find that each Petitioner showed they would suffer
irreparable injury absent relief. See Reilly v. City of
Harrisburg, 858 F.3d 173, 176, 179 (3d Cir. 2017).

       After finding Petitioners are “all at heightened risk for
severe complications from COVID-19,” the District Court
found they faced irreparable harm “should they contract” the
virus. App. 9. This circular reasoning does not support relief
because it applies regardless whether Petitioners are detained
or released.

       Moreover, in assessing irreparable harm, the Court
should have considered several factors for each individual
(beyond just their ages and medical conditions) because “the
personal nature of constitutional rights” is a “cardinal
principle[] of our constitutional order,” New York v. Ferber,
458 U.S. 747, 767 (1982). Yet a fundamental problem pervades




                               34
the District Court’s analysis: it treated Petitioners as a unit
instead of as individuals with their own unique medical
histories, medical risks, healthcare access needs, detention
conditions, and release circumstances. It should have assessed
all of these factors for each Petitioner to determine whether
they would suffer more harm in detention than if released.

        For example, the District Court did not consider the
particular confinement conditions of each Petitioner at York
and Pike. Nor did it compare the conditions of the particular
communities to which each Petitioner would be released.
Questions abound on this point. How prevalent was the virus
in their home communities? Would they live in close quarters
with many family members or others? Were their families or
roommates exposed to the virus or at risk of exposure? How
would their access to healthcare at home compare to that
provided at York and Pike? In other words, were they more
likely to contract the virus than if they remained detained? In
sum, the District Court’s failure to make a particularized
inquiry and individualized findings as to the comparative risk
faced by each Petitioner inside and outside of detention was
error.

                               B

        The District Court’s failure to make particularized
findings also pervaded its balancing of harms, which likewise
was error. The comparison of harm to the Government as
opposed to the harm to Petitioners turns mostly on matters of
public interest because these considerations “merge when the
Government is the opposing party.” Nken v. Holder, 556 U.S.
418, 435 (2009). And the District Court’s consideration of risk
to the public’s safety before providing preliminary injunctive
relief is crucial. Yet the District Court did not address risk of




                               35
harm to the public in terms of the Petitioners’ individual
criminal history and risk of flight nor did it adequately consider
associated burdens on public healthcare by each Petitioner’s
release.

       The District Court said it “cannot find, in the face of the
scope of the COVID-19 pandemic that is washing through this
country and the subject facilities, that the public interest favors
continued detention of civil immigration detainees with
underlying health conditions that render them particularly
vulnerable were they to contract COVID-19.” App. 19–20.
This analysis of the public interest suffers from the same flaw
we addressed in Continental Group, Inc. v. Amoco Chemicals
Corp., 614 F.2d 351 (3d Cir. 1980), where the public interest
“was expressed only in general and abstract terms.” Id. at 357.
By merely acknowledging that the public’s interest is not
served by the Government violating constitutional rights, the
District Court rendered the public interest “no more than a
makeweight for the court’s consideration of the moving party’s
probability of eventual success on the merits.” Id. at 358. The
Court thereby improperly eliminated the public interest from
the required showing for preliminary injunctive relief.

       Although the District Court ordered Petitioners to self-
quarantine, it neither specified what that entails nor assessed
each Petitioner’s ability to do so, and it undertook no
consideration of the risk that Petitioners might spread COVID-
19 when released into the public. The notion that release
lessens burdens on local healthcare resources requires a
comparison of individual circumstances. Because nearly all
Petitioners contended they have urgent and continuing health
needs, the District Court should have considered burdens
associated therewith on public healthcare resources.




                                36
        In its April 10 decision, the Court stated it “respects the
Respondents’ position that certain Petitioners pose a flight risk
or danger to the community,” App. 19, and surmised that
because of travel restrictions associated with COVID-19,
including worldwide travel restrictions, the risk of absconding
“is low,” App. 12. So the District Court treated Petitioners as
if they all had the same low flight risk, and it did so without
even considering whether any of them had a prior history of
failing to appear or danger to the community.

       Moreover, the Court made no findings as to risks posed
in light of each Petitioner’s criminal history. Instead, in its
April 10 decision it stated to “allay some of the Respondents’
fears,” App. 20, it would include terms of release to “quell[]”
concerns of flight risk and danger, App. 19. Petitioners’
individual criminal histories directly relate to the harm to the
public by their release and the District Court’s failure to
analyze those histories is especially problematic since many
Petitioners were detained by congressional mandate or after an
immigration judge had determined that detention was required
to protect the public. Indeed, some of their criminal histories
involve serious offenses, such as aggravated assaults,
threatening sexual assault, first degree robbery, and weapons
violations.

        Finally, the District Court erred in not considering as
part of the balancing of harm practical difficulties involved in
locating and re-detaining Petitioners should the Government
ultimately prevail or should a Petitioner abscond, commit a
crime, or violate another term of release. See Hope I, 956 F.3d
at 162.




                                37
                               C

      The District Court also erred in fashioning relief. The
Court too readily accepted the Petitioners’ all-or-nothing
proposition that anything short of immediate release cannot
remedy their plight.6

       Because it improperly elevated ideal social distancing
to a constitutional standard, the District Court granted release
without fully considering other options potentially available to
it. Without a hearing and without considering the
Government’s opposition under the appropriate standard, it’s
no surprise that in addition to failing to consider the

       6
         Petitioners rely on Brown v. Plata, 563 U.S. 493, 521
(2011), to justify release as the remedy for the asserted
unconstitutional conditions of confinement. But that case
involved the Prison Litigation Reform Act (PLRA), 18 U.S.C.
§ 3626, and a remedial injunction stipulated to by the state to
address mental and medical care in overcrowded California
prison populations. The PLRA includes release as a potential
remedy to address unconstitutional prison conditions, but it
does not apply to civil immigration detainees. See 18 U.S.C.
§ 3626(g)(3). And even if it did, Petitioners’ quest for
immediate release would have been a non-starter because the
statute mandates that relief for unconstitutional prison
conditions (1) be “narrowly drawn;” (2) “extend no further
than necessary to correct the harm the court finds requires
preliminary relief;” (3) be “the least intrusive means necessary
to correct that harm;” and (4) include release only where a
proper order was entered as to conditions, the respondent had
a reasonable amount of time to comply with it, and compliance
failed. See 18 U.S.C. § 3626(a)(2) and (3).




                              38
Government’s increased social distancing and sanitation
efforts at York and Pike in response to evolving circumstances,
the Court failed to explore alternatives to avoid any irreparable
harm to Petitioners.

        The Petitioners’ quest for nothing short of release
appeared to leave little room for a remedy short of the most
extreme one. See, e.g., Wilson v. Williams, 961 F.3d 829, 838
(6th Cir. 2020) (habeas vehicle limits type of relief); O.M.G. v.
Wolf, 2020 WL 4201635, at *8 (D.D.C. 2020) (immigration
detainees seeking only “wholesale release” in light of risk of
contracting COVID-19 by application for preliminary
injunction not entitled to relief because they failed to show that
nothing short of that relief can redress their injuries). In view
of the legitimacy of mandatory and discretionary detention,
even after a district court makes findings on the merits
sufficient to support preliminary relief, it must carefully
consider whether alternatives to release are appropriate before
ordering release.

        As to the terms of Petitioners’ release, the Court did not
explain why it rejected the Government’s alternative request
that if the Court ordered release that it should also order that:
the Detainees’ “counsel report each Petitioner’s whereabouts
every 7 days;” they “be placed on home detention;” and they
“wear ankle bracelets affixed by ICE.” App. 194 (emphasis
added). The need for significant measures designed to ensure
the Petitioners, once released, would not be “in the wind”




                               39
seems quite obvious,7 particularly with respect to those who
had a history of failing to appear or of flight.

       True enough, the District Court’s April 10 order
imposed some terms on the Petitioners’ release to “allay” fears
and “quell” concerns, such as reiterating their legally mandated
appearance at any removal hearings and adding that they report
their whereabouts to their own attorneys. But its orders did not
require any report to the Government, which would have
provided some additional protection against risk of absconsion.
Indeed, when asked at argument about the court-mandated
weekly report by each Petitioner, their counsel admitted that
Petitioners’ reporting obligation had not been regularized. See
Oral Argument June 18, 2020 at 53:10–53:24. Finally, the
Court did not explain its decision to release Petitioners on their
own recognizance, instead of, at the very least, ordering home
detention and monitoring by the Government.

                              VIII

       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. For the reasons we
have explained, the District Court committed procedural and
substantive errors that require us to vacate the April 7 and April
10, 2020 orders and remand the case for further proceedings
consistent with this opinion.



       7
       Some detainees released on their own recognizance in
Thakker, 2020 WL 1671563, at *10, absconded.




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