ICE Says It Protected Fla. Detainees In Bid To End Virus Suit

By Alyssa Aquino
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Law360 (January 5, 2021, 8:56 PM EST) -- U.S. Immigration and Customs Enforcement hit back at claims that it left detainees vulnerable to the coronavirus in three detention centers, telling a Florida federal judge on Monday that it took steps to slow the virus' spread.

The federal immigration agency said it reduced the detainee population, reconfigured dining and sleeping arrangements, and ended social visits at the Krome Service Processing Center, Glades County Detention Center and the Broward Transitional Center, rebuffing allegations that it treated detainee health recklessly amid the national health emergency.

"The efforts expended by defendants to combat and mitigate the spread of the COVID-19 virus … all demonstrate that ICE has been diligent and conscientious in its efforts to curb the spread of the COVID-19 virus in all three facilities and to protect the health and well-being of detainees and staff at those facilities," the agency said.

Detainees at the three centers first petitioned the Florida federal court for release in April, saying in an over 100-page complaint that they were incapable of social distancing in the detention centers' congregate housing and had inadequate supplies of soap and personal protective gear. By failing to provide these protections against the coronavirus, ICE had endangered detainees' safety and violated their constitutional rights, the detainees argued.

In June, U.S. District Judge Marcia G. Cooke ordered ICE to improve conditions at the three facilities, finding that the detainees were likely to win on claims that the agency treated them with deliberate indifference.

But ICE pressed Judge Cooke to end the suit on Monday, arguing that detainees based their suit on measures prescribed by the U.S. Centers for Disease Control and Prevention and internal agency standards, which lack the force of law.

"[They] are not regulations at all, but general statements of policy and procedure in the operation of detention centers," ICE said.

The agency further argued that the CDC's guidelines provided "ample flexibility" to facility administrators like itself. ICE relied in part on the Eleventh Circuit's April decision to overturn a prison release order in Swain v. Junior after finding that not all of the CDC's virus protection strategies were feasible across the board.

"[T]he same guidelines allowed facility administrators to tailor the individual space to the needs of the population and staff," ICE said. "That is what defendants did. When the detainee population was reduced, ICE was able to stagger the occupancy of the bunkbeds to allow for social distancing, or … to reduce the number of occupants in each room."

King & Spalding LLP's Scott Edson, who represents the detainees, told Law360 on Tuesday that he disagreed with ICE's arguments, saying the agency had overlooked contrary detainee testimony and evidence in its motion.

"We're concerned about the clients who are still in there," Edson said. "We're still getting updates on the circumstances and concerns about vaccine issues. … It's important that the court keep oversight because it's a very vulnerable population."

ICE declined to comment Tuesday, due to pending litigation.

The detainees are represented by Gregory P. Copeland and Sarah T. Gillman of Rapid Defense Network, Scott M. Edson, Kathryn S. Lehman and Chad A. Peterson of King & Spalding LLP, Rebecca Sharpless and Romy Lerner of the University of Miami School of Law Immigration Clinic, Paul R. Chavez of the Southern Poverty Law Center, Mark Andrew Prada and Anthony Richard Dominguez of Prada Urizar PLLC, Lisa Lehner of Americans for Immigrant Justice and Andrea Montavon McKillip of the Legal Aid Service of Broward County Inc.

ICE is represented by Dexter A. Lee and Natalie Diaz of the U.S. Attorney's Office for the Southern District of Florida.

The case is Gayle et al. v. Meade et al., case number 1:20-cv-21553, in the U.S. District Court for the Southern District of Florida.

---Additional reporting by Nathan Hale. Editing by Bruce Goldman.

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