By Nathan Hale

Law360 (June 3, 2020, 9:47 PM EDT) -- Detainees being held by U.S. immigration authorities in three Florida facilities told a federal judge Wednesday about conditions their counsel said are not "remotely sufficient" for safeguarding against COVID-19, but the government insisted there is flexibility in federal health guidelines and court intervention is not warranted.

During a virtual hearing, U.S. District Judge Marcia G. Cooke heard testimony from three detainees at the Krome Service Processing Center in Miami-Dade County, the Broward Transitional Center in Broward County, and the Glades County Detention Center as she considers whether to issue a preliminary injunction in a proposed class action against U.S. Immigration and Customs Enforcement.

ICE has reported compliance with the Miami-based judge's April 30 temporary restraining order, which required it to reduce the detention centers' populations below 75% capacity and provide detainees with masks, soap and other cleaning materials, but the witnesses described a lack of social distancing, scarce cleaning supplies and unexplained transfers carried out without precautions recommended by health experts.

"It is business as usual, with some modifications, but nothing remotely sufficient to meet the moment," argued Scott M. Edson of King & Spalding LLP, who is representing the detainees.

Steve Cooper, a 39-year old Jamaican national who has been held at Glades for over a year, testified that there have been minimal changes, if any, to living arrangements in recent months. While he confirmed that ICE has closed the barbershop and limited the number of people who can use the detention center's law library at a given time, Cooper also described sleeping, eating and watching television in close proximity to the 60 to 70 other detainees in his "pod." He also said he has seen detainees who have fallen down and have high fevers but have not been removed from the housing unit.

Two of the witnesses also testified about concerns over ICE's handling of detainee transfers, which Judge Cooke said were acceptable for satisfying the temporary restraining order's requirement to relieve overcrowding.

Cuban nationals Alejandro Ferrera Borges, 25, who is in BTC, and Deivy Perez Valladares, 35, who is currently at Krome, both said that they had been transferred in mid-May to Stewart Detention Center near Atlanta, where they were each held with 17 other detainees for several hours in a cold, cement room they called "the icebox" before being shipped back to Florida without explanation. In Perez's case, he said he was taken from BTC to Stewart, back to BTC and then to Krome within a matter of days.

Assistant U.S. Attorney Dexter Lee, who is representing ICE, later said the agency had intended to transfer Perez to Stewart but brought him back to Florida after learning he was a plaintiff in the case.

Ferrara and Perez also said they were not tested for COVID-19 at any time during the trip and reported that guards did not wear masks and detainees sat within 6 feet of one another during the 12-hour bus rides.

Such practices contradict the U.S. Centers for Disease Control and Prevention's COVID-19 guidelines, which say prisons and detention centers should transfer inmates only when "absolutely necessary," and fall short of the recommendations made by a medical doctor who testified for the detainees on Tuesday, Edson said.

All three detainees testified that they've been issued new masks every few days, but they also described minimal education on the importance of wearing them and testified their use was not universal among detainees and even some guards.

In a stark example, which Edson highlighted, Perez said that even as he was testifying on the issue, the guard who was sitting next to him was not wearing a mask.

Arguing for Judge Cooke to convert the temporary restraining order, which expires at 11:59 p.m. Friday, into a preliminary injunction, Edson said the record before the court showed that while ICE had met the ordered population reductions, it had not taken additional steps to get much below the 75% threshold.

The agency also has reported that 278 of the 1,195 detainees in the three facilities as of June 1 have not been designated for "mandatory detention" and 310 have no convictions or pending charges, but ICE provided no explanation why it will not release them, Edson said.

"I think it is abundantly clear that ICE will not significantly reduce detainee population unless ordered to do so," he told Judge Cooke.

Lee asserted that with populations at between 60% to 64% capacity, all three facilities are in compliance with the temporary restraining order. He argued that while the courts can review constitutional and statutory challenges to detainees' custody, ICE believes its decisions on releases and transfers fall under its discretion and are not subject to judicial review.

He did not substantially dispute the witnesses' accounts but argued that the CDC guidelines are not as "ironclad" as the detainees suggest and asserted that they specifically acknowledge a need for flexibility in individual facilities.

Lee also argued that the efforts ICE has made, such as limiting the number of detainees in the Glades law library and passing out masks on a regular basis, defeat the detainees' claims that it is violating their rights.

"All of these things were done in response to the pandemic, and this is certainly not conduct that is more blameworthy than negligence, so the petitioners do not have a substantial likelihood of prevailing on their deliberate indifference claim," he argued.

The suit was originally filed April 13 and currently features 58 named plaintiffs. They allege that ICE has violated their due process rights by creating an undue increased risk of severe illness or death and also violated their Fifth Amendment rights by failing to abide by the CDC guidelines and the agency's own rules.

The proposed class is represented by Scott M. Edson, Kathryn S. Lehman and Chad A. Peterson of King & Spalding LLP, Gregory P. Copeland and Sarah T. Gillman of Rapid Defense Network, Rebecca Sharpless and Romy Lerner of the University of Miami School of Law's immigration clinic, Paul R. Chavez and Maia Fleischman 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.

The federal government 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. Field Office Director Miami Field Office et al., case number 1:20-cv-21553, in the U.S. District Court for the Southern District of Florida.

--Editing by Aaron Pelc.

For a reprint of this article, please contact reprints@law360.com.