By Nathan Hale

Law360 (May 27, 2020, 10:14 PM EDT) -- Immigrants challenging the conditions in three Florida detention facilities told a federal judge Wednesday that U.S. Immigration and Customs Enforcement has provided insufficient information to show that it is complying with its rules or a court order requiring steps to curb the spread of COVID-19.

Miami-based U.S. District Judge Marcia G. Cooke did not issue a ruling during a video hearing on the future of her April 30 temporary restraining order and the detainees' motion for a preliminary injunction, but she expressed skepticism about some of the agency's efforts and set the stage for further arguments on what additional actions, if any, the court should take.

"The court is obviously taking this quite seriously, and we appreciate that," Scott Edson of King & Spalding LLP, one the attorneys representing the detainees, told Law360. "The court understands that time is of the essence here as the virus will not wait for the ordinary litigation process to work itself out."

Further arguments could come in the very near future, as the parties agreed that Judge Cooke lacks clear authority to unilaterally extend her temporary restraining order, which required ICE to reduce the facilities' populations below 75% capacity and provide masks, soap and other cleaning materials. It is due to expire Thursday.

The judge directed Assistant U.S. Attorney Dexter Lee, who is representing ICE, to inform the court by 1 p.m. Thursday whether it would agree to an extension, suggesting that with an additional seven days, the court could hold a hearing on Tuesday on the need for a preliminary injunction. She also touched upon the detainees' motion for class certification but said that issue was not yet ripe for consideration.

Edson told the court Wednesday that ICE has all the information at its fingertips and that the detainees' counsel has made substantial efforts to build a record of the conditions inside the three facilities — the Krome Service Processing Center in Miami-Dade County, the Broward Transitional Center in Broward County and the Glades County Detention Center.

But reports of "woefully deficient, woefully inadequate" conditions — including beds only 12 inches apart and masks not being replaced when they are broken or soiled — have continued to come in, and ICE has failed to rebut these claims in filed declarations that only say these things should not be happening under its rules and pandemic guidelines from the U.S. Centers for Disease Control and Prevention, which it insists it is following.

"The only evidence you have in the record is showing that they have not been implemented, and they have not been followed," Edson said.

"Maybe I was wearing the rose-colored glasses from reading the report, where it appeared that ICE was doing what it said their policy was," Judge Cooke said in response.

The lack of detailed information from ICE also has made it impossible to ascertain whether the agency has fully complied with Judge Cooke's earlier ruling that it could use transfers to lower the facilities' populations but only after first evaluating those individuals' eligibility for release, Edson said.

"There's obviously an inner connection between ICE's decision not to release someone and the ability to socially distance," he said, adding that if the agency believes it has good reason to hold someone, it should make a showing for each person.

A court-appointed special master could be useful for reviewing such disputes, he said.

Lee told the court that ICE has conducted those required initial reviews but determined that only six of the 58 named plaintiffs were deemed eligible and released.

When Judge Cooke asked whether ICE determined that the 52 other detainees all fell under a statutory "mandatory detention" status, Lee said he believed ICE exercised its discretion to maintain custody of some detainees based on findings that they posed a threat to the community. He also acknowledged that the agency had not informed the petitioners of the basis for its individual decisions on release.

"So how would I determine if ICE has complied with their own rules and guidelines in that particular area?" Judge Cooke said, noting later in the hearing that she had been unaware of the discretionary nature of some of the release evaluations.

Lee also asserted that ICE's decisions on releases are not reviewable by the courts, but Edson contested that point, saying the detainees still have due process rights and that other courts have released individuals labeled as mandatory detainees during the pandemic.

The parties also sparred over the health precautions ICE has taken when transferring detainees and its position that once a detainee leaves one of the three facilities, the court loses jurisdiction over his or her case.

"If they can transfer people and put them in unacceptable conditions elsewhere, then we haven't accomplished anything," Edson said.

ICE checks detainees for a high temperature and symptoms but lacks the resources to test asymptomatic individuals, Lee said.

"Ideally, if we had the capacity to do so, we would test everyone before we transfer them. Unfortunately, that capacity does not exist," he said.

Judge Cooke expressed concern that ICE might be "merely moving people from one side of the ledger to the other" and not really following the purpose of the temporary restraining order to "lower the population, limit the risk."

"Doesn't it actually go to the heart of one of the petitioners' other claims, which is that this case is ripe for class action?" she added.

U.S. Magistrate Judge Jonathan Goodman recommended on Friday that the court allow the immigrants to proceed as a class, which he said should include individuals who were transferred out of the Florida centers.

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 Haylee Pearl.

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