ICE Promises Soap, Shots In Fla. COVID-19 Detainee Deal

By Jennifer Doherty
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Law360 (July 6, 2021, 5:18 PM EDT) -- A Florida federal court unsealed a proposed settlement between U.S. Immigration and Customs Enforcement and migrants linked to three ICE detention centers Tuesday, revealing commitments including "unlimited soap," COVID-19 vaccines and continued social distancing measures.

First announced in a joint filing in April, weeks before the suit was scheduled for trial, the deal follows more than a year of litigation between the agency and detainees who claimed conditions at the Krome Service Processing Center, the Glades County Detention Center and the Broward Transitional Center violated their due process rights by putting them at high risk of severe illness or death in confinement during the COVID-19 pandemic.

"Once available, The Detention Facilities shall make COVID-19 vaccinations that are authorized for emergency use available free of charge to the population detained at all three detention facilities upon request, subject to availability and priorities as set forth in ICE's COVID-19 Vaccination Guidelines and Protocol," the proposed deal states.

For individuals released before receiving their second dose, ICE committed to providing a vaccination card and information in the migrant's primary language about when and how to obtain their follow-up shot. In addition, the deal promises free seasonal flu shots at each of the detention centers.

"The detention facilities will provide unlimited soap and hand sanitizer to detainees at no cost," the deal states, listing nine locations in each detention center where dispensers are to be placed and setting out guidelines for logging refills.

Soap and hand sanitizer were a major sticking point in the detained individuals' 111-page complaint last spring, with petitioners reporting that they received "two small bottles" of soap each week at the Broward facility and just one 4 oz. bottle weekly at Glades.

The deal, if approved, will also prevent ICE from creating mixed "cohorts" — quarantining groups of people who tested positive for COVID-19 with those who have been exposed, but are not yet confirmed positive or symptomatic.

"A sticking point was ICE cohorting COVID-positive people with people who are not COVID-positive, or even designating an entire facility as being a 'cohort,'" King & Spalding partner Scott Edson, counsel for the detainee class, told Law360. "By incorporating the CDC Guidelines, the agreement requires ICE to follow CDC's guidance regarding the use of cohorting. Moreover, it requires signage to alert when people are being cohorted or quarantined together to better delineate the distinctions."

"We vigorously negotiated every provision in this agreement, and retired Judge Jacqueline Hogan Scola spent many hours going back and forth between the parties. We believe the resulting agreement is an excellent outcome for our clients because it commits ICE to protecting them from COVID-19 and it ensures that the Court has continuing oversight the conditions at these three facilities," Edson continued.

The deal continues limitations on detainee transfers set forth in U.S. District Judge Marcia G. Cooke's preliminary injunction last summer. It also stipulates that ICE will work to facilitate social distancing, another troublespot in the complaint.

The agreement would also maintain all three facilities at 75% of their housing capacity to facilitate social distancing, in keeping with current CDC guidelines and ICE's current Pandemic Response Requirements document.

The deal comes as ICE's detention numbers have spiked in recent months, reaching 26,789 at the end of June after hitting a two-year low of 13,258 in February according to data from ICE and Syracuse University's Transactional Records Access Clearinghouse, with new outbreaks emerging.

As of June 30, ICE reported that Broward was the only one of the three detention centers with confirmed infections currently under monitoring or isolation, with five people testing positive for the disease.

With a status conference scheduled for July 14 to be followed by a hearing on the sides' motion for approval, Kathryn S. Lehman, Edson's co-counsel, called the agreement an "outstanding result" in a statement to Law360. 

"We negotiated over several weeks to ensure the best possible outcome for our clients," Lehman said, noting that negotiations began with court-ordered mediation in March. "At the upcoming status conference, we hope to explain the benefits of the settlement and lay the groundwork for court approval of the agreement."

Representatives for the U.S. Department of Justice did not immediately respond to a request for comment Tuesday.

Scott M. Edson and Kathryn S. Lehman of King & Spalding LLP signed the settlement on behalf of the ICE detainees.

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.

--Editing by Emily Kokoll.

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