By Dave Simpson

Law360 (April 13, 2021, 11:01 PM EDT) -- U.S. Immigration and Customs Enforcement and a group of detainees told a Florida federal court Tuesday that they have reached a deal to end the detainees' class action over the agency's response to COVID-19 at three Florida facilities.

The joint filing is light on details but notes that the parties will be seeking court approval of a proposed injunctive order. They are in the process of preparing their proposal for the court but said that they wanted to flag the deal immediately, given the looming April 27 trial date. The government, in a separate filing, also asked the court for permission to file the proposal under seal.

"Once the proposed settlement agreement is reviewed by ICE headquarters and the Department of Justice, and final approval is granted, the settlement agreement can be made public," it said.

In a 111-page April 2020 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 took particular issue with the use of "cohort" quarantining, in which detainees believed to have been exposed to the coronavirus were held separately but in large groups.

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

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

The complaint sought to certify a class of all current and future civil immigration detainees at the three facilities, which it suggested 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, Broward holds on average 700 detainees and Glades, in Moore Haven, Florida, west of Lake Okeechobee, has about 400 detainees on average.

The detainees alleged that the government 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 confinement amounted to a "state created danger" that is excessive and amounts to impermissible punishment.

In March, U.S. District Judge Marcia G. Cooke backed a special master's call to further review ICE's social distancing measures at the three detention centers and ordered the agency to brief the court on how it has cohorted detainees and enforced social distancing.

Judge Cooke adopted special master Matthew Dates' report, despite ICE's objections. ICE had argued that occupancy was low in the three southern Florida detention facilities, and cited security as a reason against releasing the data.

"The court finds the Special Master's Report to be thorough, insightful, clear, and cogent," Judge Cooke said.

In June, Judge Cooke ordered ICE to improve conditions at the three facilities. The improvements included providing detainees with adequate masks and hygienic supplies and ceasing to cohort individuals who tested positive for the virus with those who did not. Ten days later, the detainees petitioned Judge Cooke to order ICE to comply with the injunction.

In July, Judge Cooke appointed Dates to audit the three facilities and report back on ICE's compliance. Though Dates found the centers generally clean and stocked with cleaning supplies and personal protective equipment, he reported that ICE's social distancing efforts were insufficient. He also noted that ICE refused to hand over the centers' floor plans, an omission connected to ICE's social distancing efforts. Dates ultimately recommended denying most of the motion to compel compliance, save for the injunction's social distancing provisions.

ICE refuted the report in February, saying the detainee population was lower than it was in July and August when Dates inspected the centers. They also challenged Dates' observations on how closely dormitory beds were spaced together, explaining that some weren't in use.

Representatives of the parties did not immediately respond to comment Tuesday. 

The detainees are represented by Gregory P. Copeland and Sarah T. Gillman of Rapid Defense Network, Scott M. Edson, Kathryn S. Lehman and Chad A. Peterson of King & Spalding LLP, Rebecca Sharpless and Romy Lerner of the University of Miami School of Law Immigration Clinic, Paul R. Chavez 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.

ICE 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. Meade et al., case number 1:20-cv-21553, in the U.S. District Court for the Southern District of Florida.

--Additional reporting by Alyssa Aquino and Nathan Hale. Editing by Michael Watanabe.

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