Fla. Detainees Sue Feds Over COVID-19 Threat In ICE Facilities

By Nathan Hale
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Law360 (April 13, 2020, 10:26 PM EDT) -- A group of detainees in three South Florida immigration detention centers sued the federal government Monday for allegedly failing to comply with its own guidelines for preventing the spread of COVID-19 and asked for the release of a proposed class of vulnerable prisoners.

In a 111-page complaint, the detainees, who are being held at the Krome Service Processing Center, the Glades County Detention Center and the Broward Transitional Center, allege that their continued detention violates their due process rights by creating an undue increased risk of severe illness or death.

They seek their release while awaiting court dates under a writ of habeas corpus, in many cases saying they could stay in the area with family members with whom they would be able to follow stay-at-home and social distancing orders that they say are impossible in the crowded facilities.

The complaint, which names Michael W. Meade, the director of U.S. Immigration and Customs Enforcement's Miami Field Office, and U.S. Attorney General William P. Barr as defendants, takes particular issue with the use of "cohort" quarantining, in which detainees believed to have been exposed to the coronavirus, are held separately but in large groups.

"ICE's practice of grouping exposed people together not only virtually ensures that they will fall ill but makes it more likely that staff, healthcare providers, and others who travel in and out of the detention centers will become vectors for the virus in our larger community," said Rebecca Sharpless, director of the University of Miami School of Law's Immigration Clinic, who is representing the plaintiffs. "ICE must stop this practice and release people before a bad situation gets worse."

The plaintiffs also describe being held in close and possibly overcrowded quarters with limited access to soap and hand sanitizer. They say staff and officers have only recently started to wear masks and other protective equipment while denying them the same, and medical services often have been delayed.

Additionally, they say ICE has created an increased risk of infection by continuing to transfer new detainees into the three facilities.

The suit seeks to certify a class of all current and future civil immigration detainees at the three facilities, who they suggest dividing into three subclasses: those who have a stable location or residency where they could self-quarantine upon release, those without a stable self-quarantining location, and all other detainees who opt out of those subclasses.

According to the complaint, the Krome facility at the western end of Miami-Dade County has typically held between 500 and 875 people since 2006, BTC holds on average 700 detainees, and Glades, in Moore Haven, Florida, west of Lake Okeechobee, has about 400 detainees on average.

The detainees allege that the government has violated the Fifth Amendment through its failure to abide by guidelines issued by the Centers for Disease Control and Prevention during the COVID-19 pandemic and because the conditions of their current confinement amount to a "state created danger" that is excessive and amounts to impermissible punishment.

The complaint suggests that ICE has been secretive about the testing and any positive test results for detainees and staff, and alleges that at the very least, the government has exhibited deliberate indifference to a substantial risk of serious harm.

"The harm that petitioners fear — i.e., that their confinement will result in a COVID-19 infection that will seriously injure and possibly kill them — need not become a reality to establish a violation of their constitutional rights," the suit says. "Courts do not require a plaintiff to 'await a tragic event' before seeking relief from a condition of confinement that unconstitutionally endangers them."

According to the suit, ICE has operated an "alternatives to detention" program that uses supervised release and case management instead of detention for more than 15 years. These alternatives have resulted in lower costs for the agency than jailing individuals and government data has found that in 2017, supervision and case management resulted in a 99% appearance rate for all immigration court hearings.

The detainees say they suffer from a variety of ailments and medical conditions, including respiratory issues, HIV, diabetes and heart disease. They describe being around sick cellmates and in some cases say they have themselves fallen ill or shown COVID-19 symptoms, such as coughing.

Representatives for ICE did not immediately respond to a request for comment on the suit Monday.

The plaintiffs are represented by Rebecca Sharpless of the University of Miami School of Law Immigration Clinic, Gregory P. Copeland and Sarah T. Gillman of the Rapid Defense Network, Mark Andrew Prada and Anthony Richard Dominguez of Prada Urizar PLLC, Paul R. Chavez and Maia Fleischman of the Southern Poverty Law Center and Andrea Montavon-McKillip of the Legal Aid Service Of Broward County Inc.

Counsel information for the government was not immediately available Monday.

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 Jay Jackson Jr.

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

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