by Christopher Zoukis

As a result of a ruling June 5, 2020, hundreds of immigrant detainees held by federal Immigration and Customs Enforcement (ICE) in south Florida may have to be released. That day a federal judge for the Southern District of Florida agreed the agency was likely “[shuffling] people around the country to make (its) population statistics…look better on paper” and said she remained skeptical that ICE’s commitment to protect them from COVID-19 “has meaningfully shifted since the start of the pandemic.”

The order by U.S. District Court Judge Marcia Cooke came a month after she appeared to walk back a two-week deadline she had given ICE to release 1,000 detainees in her original ruling April 30, 2020. The detainees were held in three detention centers in southern Florida: the Krome Detention Center (Krome) in Miami, the Broward Transitional Center (BTC) in Pompano Beach, and the Glades County Detention Center (Glades) in Moore Haven. In her April 30 ruling, Cooke excoriated the agency for a “deliberate indifference” to detainees’ risk of contracting the disease that “amount(s) to cruel and unusual punishment.”

However, in a clarification of that initial order issued May 5, 2020, Cooke allowed ICE instead to transfer its at-risk detainees to other detention centers “after first evaluating each detainee and making a determination as to the detainees’ eligibility for release.” Her ruling contained no guidelines for ICE to follow, leaving it up to the agency to make its own determination and sparking outrage from the lead attorney for plaintiffs in the case.

“The court is giving too much credit to ICE to do the right thing here,” said Rebecca Sharpless, director of the Immigration Clinic at the University of Miami. “My fear is that they will not release people and just move them around — a fear that already appears to be well-founded.”

Even before the clarification was issued, ICE had shipped hundreds of detainees from the three detention centers to other ICE facilities, including the Baker County Detention Center in North Florida, the Folkston ICE Processing Center in Georgia, and Pine Prairie ICE Processing Centers in Louisiana.

With her latest order in June, though, Cooke found that ICE had failed to make a good-faith effort to protect detainees from exposure to the disease — neither those transferred by ICE agents who often didn’t wear masks, nor those left behind in facilities still too crowded to practice social distancing — so she reiterated that ICE must comply with her original decision.

While not forced to release any detainees, ICE is still required to dramatically reduce its detainee population at risk for the disease without unnecessary transfers and without mass quarantine – effectively tying the agency’s hands and forcing releases, say attorneys for the immigrant detainees, who celebrated the most recent ruling.

The dizzying parade of orders by Judge Cooke came in response to litigation originally filed by the Southern Poverty Law Center (SPLC) on behalf of 34 immigrant asylum seekers whose underlying health conditions left them particularly vulnerable to COVID-19. All 34 were housed at Krome, BTC or Glades.

Cooke’s initial order mandated that ICE must reduce the “non-criminal and medically vulnerable populations” at the three centers from a combined total of about 1,400 to 350 because of problems detailed at all three facilities.

At Krome, the judge found that “social distancing is currently impossible . . . because the sleeping arrangements and some of the toilet and shower arrangements are too tight to permit it.” The same was determined true for Glades, where “the bunk beds are a paltry 12 inches apart [and] the distance between the upper bunk and the lower bunk is 34 inches.”

“Further, ICE has failed to provide detainees in some detention centers with masks, soap and other cleaning supplies, and failed to ensure that all detainees housed at the three detention centers can practice social distancing,” the opinion continued.

The judge’s newest order makes clear that ICE cannot transfer any detainee from the three centers without first advising the court of its intention to do so in a weekly report that also must include the results of a verbal screening for potential exposure to the coronavirus and a temperature check for the fever that accompanies COVID-19, as outlined in guidelines from the federal Centers for Disease Control and Prevention (CDC).

Moreover, the agency must quarantine new detainees and those suspected of COVID-19 infection – but not yet confirmed by testing – for 14 days, and they must be individually isolated. ICE has been massing quarantined detainees, a practice known as “cohorting,” by transferring all of them to Glades. Cooke’s original ruling looked at the practice and found ICE out of compliance with both CDC guidelines for correctional facilities and ICE’s own Pandemic Response Requirements (PRR).

As a result, ICE is still ordered to provide weekly PRR compliance reports and twice-weekly reports from the three facilities, with details about inmates housed in each. In addition, ICE must comply with CDC guidelines pertaining to providing masks, adequate soap and water, as well as cleaning materials, and the agency must provide COVID-19 educational and training materials to detainees and staff.

Importantly, Cooke’s new order also certifies a class of plaintiffs, not just the original 34, which includes anyone held in any of the three detention centers at any time and for any period since the original lawsuit was filed April 13, 2020. For example, a detainee booked into Krome on April 13, 2020, remains part of the class protected by the lawsuit no matter where he or she is subsequently transferred by ICE.

As of May 7, 2020, ICE reported 674 positive tests for the coronavirus at 41 of over 200 facilities nationwide holding more than 40,000 detainees. Its first detainee death was reported on May 6, 2020: 57-year-old Carlos Ernesto Escobar, a Salvadoran who had been held at OMDC since January.

Some 700 ICE detainees nationwide had been released because of coronavirus-related concerns. That includes about 35 percent of BTC detainees who were over age 60. In April 2020, the agency said it would receive 2,000 kits monthly to test for the coronavirus from the federal Department of Health and Human Services. As of mid-May, fewer than 2,000 detainees had been tested.

In addition to SPLC, plaintiffs in the Florida suit were represented by attorneys from the Legal Aid Service of Broward County, Inc., Americans for Immigrant Justice, University of Miami School of Law, Rapid Defense Network, King & Spalding, Rapid Response Network and Prada and Urizar PLLC. See Gayle v. Meade, USDC (S.D. Fla.), Case No. 1:20-cv-21553 (May 1, 2020); Gayle v. Meade, USDC (S.D. Fla.), Case No. 1:20-cv-21553-MGC (June 5, 2020). 

Additional sources: miamiherald.com, nydailynews.com, thecentersquare.com, norwalkreflector.com, kpbs.org

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