SDNY COURTHOUSE, Oct 15 – On October 9
Inner City Press covered the habeas corpus hearing on
Oscar Bergal, shot in Marble Hill by ICE the day before,
DOJ wrote in they intended to detain him in MDC Brooklyn,
and live tweeted here
and below.
On the evening of Tuesday, October 13 his
lawyer wrote in that he "is willing to concede that he was
not detained in this District when he filed the petition,"
and set out three ways the case could be dismissed, and
presumably re-filed.
On October 14 it was refiled in EDNY in Brooklyn, and assigned to Judge Hector Gonzalez. But unlike before Judge Cronan in SDNY, filings were not available on PACER. So Inner City Press wrote in
"requesting that the docket in the
above-captioned case be made available via PACER and
CourtListener. This was the case for the antecedent habeas
corpus petition in the U.S. District Court for the
Southern District of New York, where District Judge John
P. Cronan on October 13 ordered: 'The Clerk of Court shall
therefore make all previous and future filings on the
docket publicly available via remote access.'
Just after, that petition was
voluntarily dismissed and this case was filed. It too
should be available to the public. The identity of the
petitioner is already widely known, and the disposition of
the issues, and arguments made, are of significant public
interest. Currently, even for the Petition,
PACER says "You do not have permission to view this
document." Inner City Press stands ready
to submit further briefing if the Court deems it
necessary, but made this request prior the opening of
court on October 15, hoping for public access as soon as
possible."
Judge Gonzalez to his credit put Inner City
Press' letter in the docket, presumably for the US
Attorney's Office (and Legal Aid) to agree (or not) - but
tellingly, Inner City Press' letter itself cannot be
viewed, other than in the EDNY courthouse terminal. That's
just the point...
From October 9:
All rise! Judge John P. Cronan: This
morning another judge in this District, Judge Oetken,
sitting in Part 1, enjoined moving the petitioner out of
the District, EDNY or DNJ about further order of the
court. Now I have the case.
Judge Cronan: Around 1 pm the Government
wrote in that they intend to detain the Petitioner in
MDC-Brooklyn. Is that still the Government's position?
AUSA Waterman: Yes. Judge: Was he located in SDNY when the
petition was filed? AUSA: No. He was in New Jersey.
AUSA: He was driven over the George
Washington Bridge toward Newark. Judge Cronan: Assuming
arguendo that I have jurisdiction, does Judge Oetken's
order remain in effect, to not move him out of SDNY, EDNY
or DNJ? AUSA: That is how we do it.
Judge Cronan: What if I deny the TRO since
Judge Oetken's may last longer [than 14 days]? I'll do
that. If Petitioner was not in this District, do you agree
I do not have jurisdiction? Petitioners' lawyer: We may
not contest on venue - but would it be transferred?
Petitioner's lawyer: Give us some time.
Judge Cronan: What was the basis of his detention? AUSA
Waterman: ICE is getting back to me. Judge Cronan: When
can Petitioner's lawyer get back to me on next steps?
Petitioner's lawyer: Tuesday, by letter
Judge Cronan: Are you challenging only
detention? Or also removal? Petitioner's lawyer:
Only detention. But we will seek to amend. Judge Cronan:
Understandable. I look forward to your letter on Tuesday.
Have a good weekend.
Adjourned.
The case is Bergal v. Genalo et al., 1:26-cv-8928 (Cronan)
