By Suzanne Monyak

Law360 (May 26, 2020, 5:07 PM EDT) -- The federal government is defending its authority to continue transferring detained immigrants between facilities during the coronavirus pandemic, after advocates involved in a proposed class action accused the government of moving detainees around to manipulate population statistics and shirk a federal court order.

In a Monday court filing in Florida federal court, the government argued that U.S. Immigration and Customs Enforcement's decision to transfer some detainees out of Florida detention centers to other centers does not conflict with U.S. District Judge Marcia G. Cooke's mandate that the centers reduce the detainee population to promote social distancing.

"ICE chose to reduce its detainee population by releasing some detainees, and transferring others, based upon its broad statutory authority," the government wrote. "This was an appropriate exercise of authority by a prison facility administrator to manage the population of a detention center, to facilitate the distancing requirements presented by the COVID-19 pandemic."

Additionally, any immigrants included in the proposed class action who have been transferred out of those facilities should no longer be covered by the lawsuit, the government said.

"If those transferred detainees believe the conditions of confinement at their current detention location violates their rights, then the appropriate course would be to file an action in that jurisdiction," the government wrote.

Attorneys for the proposed class of detained immigrants, including at King & Spalding LLP, Rapid Defense Network and the Southern Poverty Law Center, hit back in a brief filed Tuesday that by pointing to ICE's "black-letter policies while leaving undisputed sworn declarations showing that it is not consistently implementing those policies," the agency "has only confirmed its failure to actually and fully comply" with the court's order and national health guidelines. 

The proposed class had accused ICE earlier this month of flouting Judge Cooke's order to reduce overcrowding at Florida's Krome North Service Processing Center, Glades County Detention Center and Broward Transitional Center in a "naked" and "legally erroneous" attempt to avoid court oversight.

The agency is "merely shuffling people around the country to make the population statistics at Krome, Glades, and BTC look better on paper," the attorneys alleged.

Additionally, ICE has provided no evidence that it first evaluated transferred immigrants for the potential to be released, and the transfers are conducted in "highly unsanitary conditions," they claimed.

ICE contested those allegations in the government's Monday filing, asserting that immigrants have their temperatures checked before boarding flights to other detention centers and are required to wear masks during the flight and en route to the next facility. The agency also claimed that it conducts prompt custody determinations for all at-risk detainees.

The detained immigrants held at immigration detention facilities sued ICE in April claiming that their detention in the three facilities puts them at risk of contracting COVID-19, the disease caused by the novel coronavirus.

The lawsuit alleges that the immigrants, who are detained for civil offenses while their immigration cases continue, have been held in close quarters with limited access to soap and hand sanitizer. The suit also takes issue with ICE's practice of "cohorting," where potentially exposed immigrants are contained together in groups.

Later that month, Judge Cooke ordered ICE to lower the population at the facilities to 75% capacity and give detainees soap and other cleaning materials, scolding the agency for having "demonstrated deliberate indifference" with regard to the safety and well-being of immigrant detainees there.

The judge clarified shortly after that while ICE may achieve a lower population by transferring immigrants to other immigration detention centers, the agency must first evaluate those individuals for their eligibility to be released.

U.S. Magistrate Judge Jonathan Goodman, who is weighing the advocates' request to force ICE to comply with the earlier order, recommended on Friday that the court allow the immigrants to proceed as a class, which he said would include individuals who were transferred out of the Florida centers, to challenge the conditions at the three facilities.

The court will hold a hearing on the proposed class's request for relief on Wednesday.

Scott Edson of King & Spalding, an attorney for the proposed class, said in an email to Law360 on Tuesday that it is "deeply troubling" that ICE has continued to withhold adequate soap and sanitation products from detained immigrants. 

"ICE has all but refused to release even people with substantial preexisting health conditions that make them especially vulnerable if infected. And it has even taken the position that transferring someone is the same as releasing that person," he said. "We look forward to addressing these issues with the court tomorrow." 

A representative for ICE didn't immediately return requests for comment on Tuesday.

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.

--Additional reporting by Nathan Hale and Carolina Bolado. Editing by Jack Karp.

Update: This story has been updated with a comment from an attorney for the proposed class and details from Tuesday's reply brief. 

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