by Mark Wilson

On December 22, 2021, a Florida federal court approved the settlement of a class-action lawsuit challenging conditions during the COVID-19 pandemic in three U.S. Immigration and Customs Enforcement (ICE) detention facilities in Florida. Under the terms of the agreement, vaccinations will be offered to all detainees at the affected facilities, as cases of the disease continue to spike in ICE facilities nationwide.

On April 13, 2020, detainees at the three Florida centers—Krome Service Processing Center; Broward Transitional Center; and Glades County Detention Facility—brought a suit in U.S. District Court for the Southern District of Florida, alleging that ICE was exposing them to an imminent risk of contracting COVID-19 and seeking the release of thousands of detainees. The Court certified a class of plaintiffs and entered a preliminary injunction in their favor on June 6, 2020. See: Gayle v. Meade, 2020 U.S. Dist. LEXIS 100960 (S.D. Fla.).

The parties entered into settlement negotiations on March 8, 2021, negotiating for more than a month before alerting the Court on April 13, 2021, that they were unable to reach an agreement. Following “tenacious efforts” to assist negotiations by the Honorable Jaqueline Hogan Scola—a retired Miami-Dade state circuit court judge with more than 17 years of experience on the bench and an extensive background litigating federal cases before that—the parties were finally able to request the Court’s approval of a settlement on June 28, 2021.

The court granted its preliminary approval on September 14, 2021, holding a fairness hearing on October 29, 2021, after which Magistrate Judge Jonathan Goodman found the terms fair, reasonable, adequate, and in the best interests of the class on December 3, 2021. His report and recommendation was adopted by Judge Marcia G. Cooke on December 22, 2021, granting the parties’ joint motion for approval of the Settlement Agreement. Its terms include free masks, sanitation and hygiene products, as well as compliance with CDC and other federal guidelines concerning COVID-19 in detention facilities. Importantly, the terms also require:

• social distancing, which requires ICE to cap the population at 75% of capacity;

• providing free vaccinations to detainees upon request;

• detainee education about COVID-19, vaccines and prevention measures; and

• COVID-19 testing protocols and detainee transfer protocols.

The Court will retain jurisdiction to enforce the terms of the Settlement Agreement as an injunction “for six months following the entry of the Final Order or until each of the class members…has been given an opportunity to be vaccinated, whichever is later.”

Defendants agreed to continue submitting weekly certifications regarding the detention population, including each facility’s raw population numbers, population densities and number of detainees who have tested positive in each unit.

The Settlement Agreement’s release applies only to class-wide claims, making it clear that “[m]embers of the class retain the right to pursue individual habeas petitions and motions for release” and that
“[n]o pending motion for release or to intervene is rendered moot by the Final Order.” See: Gayle v. Meade, 2021 U.S. Dist. LEXIS 245039 (S.D. Fla.).

Vaccinations Begun, But No Program in Place

Within one week of the Court’s approval of the Agreement, ICE offered the first of two Moderna vaccine shots to Glades detainees, according to class counsel. Stunningly, it was just the second vaccine distribution to ICE detainees. The first happened in March 2021 in New York, after another class-action suit in which a federal judge lambasted ICE for “[d]oing nothing to get [detainees] the vaccine. Nothing. Zero.”

ICE still has not implemented a national vaccine program and cannot say how many detainees have been vaccinated, even as COVID-19 continues to rapidly spread through its facilities. Unlike the Federal Bureau of Prisons, ICE claims it is relying on state and local health departments to procure vaccine doses.

The vaccine was “an answered prayer” for Duan Dixon, a Jamaican citizen confined at Glades. “Whatever their plan is for us detainees, I’m just glad I was able to get the shot,” said Dixon. “I have kids that I want to live to see.” Held in ICE detention for eight months awaiting deportation, Dixon said “every additional day in here is a death risk, and at this moment, everybody is fighting for survival—including me.”

Not all detainees wanted a vaccine from ICE. One former Glades detainee, Edwin Zeron, explained it like this: “You think I’m going to trust ICE, the same people who imprisoned me, to inject what’s likely to be poison into my body? Hell no. I don’t trust them.”

As of mid-January 2022, CBS News reported that 37.6% of ICE detainees nationwide had refused a vaccine dose, though by the last week of that month the network was reporting the “infections have surged by over 800%” since the beginning of the year. Immigration advocates fear this opposition may be due to ICE’s failure to educate detainees about the public health risk and vaccines.

“While the recent vaccinations at Glades [are] an important, positive step, we continue to monitor the actions ICE is taking to provide relevant information regarding the vaccine to those in its custody and what steps ICE is taking to encourage people to accept the vaccination,” said Jessica Schneider, director of the detention program at Americans for Immigrant Justice (AIJ), one of the several national immigration law firms representing the detainees.

In addition to AIJ, plaintiffs are represented by the Southern Poverty Law Center, the Rapid Defense Network, the University of Miami School of Law Immigration Clinic, the Legal Aid Service of Broward County and the law firms of Prada Urizar PLLC in Miami and King & Spalding LLP in Washington, D.C.

“Class counsel have also agreed to forgo any request to recoup their fees and costs. Class counsel has not disclosed the amount of attorney time and costs they donated to the case, but there is no doubt that they are substantial. There are approximately 800 docket entries,” noted Magistrate Goodman. “Their efforts have been remarkably generous, and the results have been extraordinary…Had counsel with less focus and skill been involved in the case other than the attorneys who were involved…it is unlikely that a result as impressive as the one here would have been achieved.” See: Gayle v. Field Office Director Miami Field Office, USDC (S.D. Fla.), Case No. 1:20-cv-21553-MGC.  

Additional sources: CBS News, Miami Herald

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