By Nathan Hale

Law360 (June 2, 2020, 6:51 PM EDT) -- A doctor testified Tuesday that U.S. Immigration and Customs Enforcement's transfer of detainees out of three Florida facilities could be a medically responsible step to prevent the spread of COVID-19, but the government has already said it is not following all of the precautions he said would be needed.

Dr. Joseph Shin, an associate professor at Weill Cornell Medical College in New York who was presented as a witness by immigrant detainees challenging the conditions of their confinement, appeared during a video hearing before U.S. District Judge Marcia G. Cooke, who is weighing whether to convert an April 30 temporary restraining order she issued into a preliminary injunction against ICE.

Shin, who said he has conducted medical research on jails, prisons and immigration detention centers, told the Miami-based judge he does not consider transfers conducted without medical evaluations and other risk-mitigating steps to be consistent with COVID-19 guidelines issued by the U.S. Centers for Disease Control and Prevention.

"To only adopt some of them but not all of them, that's really like trying to fight a battle with one hand tied behind your back," he said. "The goal is to try to minimize all risks as much as you can."

ICE transferred numerous detainees out of 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 — after Judge Cooke said that was acceptable to satisfy her order that it reduce their populations below 75% capacity to facilitate social distancing.

But Shin warned about the risks of transfers, saying that limiting people's movement is an important part of preventing the spread of the novel coronavirus and that transfers open up a chain of events with many potential weak links that could lead to new infections.

"That question needs to be analyzed in detail: Is that transfer really necessary?" the doctor said.

He recommended several procedures that should be followed in a transfer. Given evidence of asymptomatic cases, having a positive or negative test result can help gauge the risk level, he said, but he also cautioned that research has indicated an approximately 30% rate of false negatives from tests. Infected detainees can be transported together, but others should ideally be moved individually, he said.

Anyone who has contact with a transferee should follow stringent use of protective personal equipment, including masks, gloves, eye or face shields and ideally even gowns, Shin said. The vehicle also should be cleaned before and after the transfer, and upon arrival, the transferee needs to go into some sort of medical isolation or cohort with detainees with the same medical status.

Asked during cross-examination by Assistant U.S. Attorney Dexter Lee whether transferring detainees to relieve overcrowding could be a "responsible decision" by a facility administrator during the pandemic, Shin said that under certain circumstances that might be possible, depending on the context and the steps being taken to reduce the risks.

"In medicine, we're often making decisions accepting risk if the overall outcome is better," Shin said. "As long as in balance the risks are minimized and the benefits are maximized, then yes, that could be a responsible decision."

But when the transfers came up during a May 27 hearing, Lee told the court that only individuals who are exhibiting a fever, respiratory issues or other common COVID-19 symptoms are being tested by ICE.

"Ideally if we had capacity to do so, we would test everyone before we transfer them," Lee said. "That capacity does not exist."

During Tuesday's testimony, Shin also said his review of declarations detainees filed about the conditions at the three facilities "point to many breaches" in the CDC guidelines.

He suggested that releasing detainees may be the best option when possible, saying that if they have a safe place to stay, they are often better able to comply with social distancing recommendations and access items such as soap, hand sanitizer and face masks in that setting.

The detainees' counsel wanted to also present testimony from a detainee in each of the three facilities Tuesday, but ICE said it is against Department of Homeland Security policy to download the Zoom videoconferencing app used for the hearing on its devices.

Judge Cooke sided with Lee's argument that the detainees' delivery of their witness list Monday afternoon had not left the government sufficient time to come up with an alternative by Tuesday morning, but she left the door open to hearing their testimony Wednesday if a solution could be worked out.

Scott Edson of King & Spalding LLP, who is representing the detainees, told Law360 after the hearing that they are in contact with the government's counsel and expressed optimism that they will be able to present the testimony.

A spokeswoman for ICE said agency policy prevents her from commenting on pending litigation.

With an extension on the temporary restraining order set to run out at midnight Saturday morning and ICE having said it will not agree to another extension, Judge Cooke is expected to issue her ruling by Friday. The detainees' motion for class certification is also pending before the judge.

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 Amy Rowe.

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