By Nathan Hale

Law360 (April 17, 2020, 10:57 PM EDT) -- Counsel for a proposed class of detainees at three Florida immigration detention centers insisted Friday that the federal government is not doing enough to prevent a COVID-19 outbreak at the facilities and that a court order requiring a substantial number of releases is necessary and possible despite logistical questions.

U.S. Magistrate Judge Jonathan Goodman questioned the attorneys at length during a 2½-hour video hearing about the scope of what they are asking for and the feasibility of carrying out their primary goal — the release of potentially more than 1,000 noncitizens they say are being held by U.S. Immigration and Customs Enforcement in crowded, unsafe conditions that have created an undue increased risk of severe illness or death.

Assistant U.S. Attorney Dexter Lee told the court that ICE does not believe it is violating guidelines issued by the U.S. Centers for Disease Control and Prevention to address the coronavirus pandemic, arguing the CDC "contemplated that some of these guidelines might not be applied in an ideal fashion" and that the facilities — the Krome Service Processing Center in Miami-Dade County, the Glades County Detention Center and the Broward Transitional Center in Broward County— are adapting to their physical limitations.

But Rebecca Sharpless, director of the University of Miami School of Law's Immigration Clinic, who is representing the detainees, argued repeatedly that releasing them is an available, and even necessary, option that ICE is not employing at a sufficient scale.

"Right now respondents are not releasing enough people to make it safe," she said, adding later, "It is nowhere near where it needs to be to prevent a crisis."

Judge Goodman is considering the detainees' request for a temporary restraining order and a preliminary injunction and will issue a report and recommendation to U.S. District Judge Marcia G. Cooke.

In the restraining order, the detainees are seeking a ban on the transfer of any of the putative class members to a different detention center as well as a ban on the admission of any new detainees, which they argue increases current detainees' risk of infection.

Lee said he would have to consult with ICE about the requests but said the agency has broad discretion on those matters. Sharpless told the court that the detainees were aware that transfers had already taken place in the days since they filed their April 13 complaint.

Judge Goodman characterized the demands for the preliminary injunction as falling into two categories — improved health protocols to prevent the spread of the coronavirus and an order releasing all detainees. Arguing that achieving safe conditions in the facilities is all but impossible, the detainees' counsel said release of a high percentage of the detainees is their main goal.

That prompted numerous questions from the judge about who would make determinations about the conditions of each detainee's potential release, including the need for bond and approval of where they would stay and shelter in place.

The detainees' counsel argued that ICE could make use of its existing Alternatives to Detention program, but also said they would welcome court intervention and oversight to speed up what is currently a slow-moving bureaucratic process. Sharpless said they would "be absolutely thrilled" if the court followed a Massachusetts district judge's decision to personally review individual cases, although she acknowledged the large number of detainees poses logistical challenges.

The parties sparred over how many detainees at the facilities have shown symptoms of COVID-19 and the government's testing efforts, with Sharpless saying she received medical records Thursday for a client who is being held in a group "cohort" quarantine, but they indicated he had not been checked since April 5, despite CDC requirements for twice-daily monitoring.

At one point, Lee cited well-publicized difficulties that even doctors and nurses across the country have had in getting tested and insisted that any shortcomings were "not due to indolence by staff at the facilities."

The parties also argued about whether the Miami-based court has authority to consider the claims regarding the Glades facility because its location, in Moore Haven, is in the Middle District of Florida. The detainees' counsel argued that the Southern District is an appropriate venue because Michael W. Meade, the director of U.S. Immigration and Customs Enforcement's Miami Field Office, who is named as a defendant along with U.S. Attorney General William Barr, has the power to order the requested releases.

In their complaint, the detainees allege that the government has violated the Fifth Amendment through its failure to abide by the CDC's guidelines 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.

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-home and social distancing orders that they say are impossible in the crowded facilities.

The detainees are represented by Rebecca Sharpless and Romy Louise Lerner 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, Andrea Montavon-McKillip of the Legal Aid Service Of Broward County Inc., and Lisa M Berlow-Lehner of Americans for Immigrant Justice.

The government is represented by Dexter 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 Breda Lund.

Update: This story has been updated to add additional attorney information for the plaintiffs.

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