Detainee Who Contracted Virus In ICE Facility Can't Go Home

By Hailey Konnath
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Law360 (September 23, 2020, 6:43 PM EDT) -- A detainee who contracted COVID-19 at a Florida detention center cannot go home to be cared for by her family, a Sunshine State federal judge ruled Tuesday, saying that her release would risk spreading the virus to other community members.

Miryam Lopez told the court on Monday that U.S. Immigration and Customs Enforcement had repeatedly ignored her requests for accommodations due to several medical ailments, including respiratory conditions that make her particularly susceptible to the deadly virus. And now she has the disease, a direct result of the government's inaction, she said in an emergency motion.

Lopez, 55, is a member of a class of detainees suing over allegedly hazardous conditions at three Florida immigration facilities during the pandemic. She says she has chronic obstructive pulmonary disease, asthma and chronic bronchitis, as well as hepatitis-C and other ailments.

U.S. District Judge Maria G. Cooke on Tuesday said that she was sympathetic to Lopez's medical conditions, but that there was no reason to transfer her to home confinement. Aside from the risk of transmission, Lopez has not shown that she would receive medical treatment that would not otherwise receive as a detainee in the medical ward at Broward Transitional Center in Broward County, the judge said.

Under 11th Circuit precedent, the appropriate relief from prison conditions that violate the law is to require that any improper practices be discontinued, Judge Cooke said.

"Requiring the discontinuance of a practice, however, does not amount to releasing detainees who complain of prison conditions," she said.

According to the case, Lopez was transferred to the Broward Transitional Centeron April 27 because officials couldn't keep her medically safe at the Glades County Detention Center. But even at the Broward Center, officials have failed to keep her from exposure to inmates with known positive COVID-19 results and to protect her according to guidelines from the U.S. Centers for Disease Control and Prevention.

Linda Osberg-Braun, counsel for Lopez, told Law360 on Monday that she has "never been more worried about a client."

"The liability on our government to continue to house her given her known chronic medical conditions cannot be justified and keeping her detained is playing Russian roulette with her life and permanent damage to her health — only her ailments of COPD, chronic bronchitis, hep-C, etc. add more bullets to the chamber," Osberg-Braun said at the time.

Lopez arrived in the United States legally on a tourist visa in July 2002, according to the suit. In March 2009, she became a lawful permanent resident based on her marriage to a U.S. citizen. She also has a permanent resident daughter, according to her case.

In March 2012, she was arrested and pled guilty to a charge of possession of cocaine with intent to sell, manufacture or deliver. She was sentenced to 12 months of probation. Immigration authorities did not institute removal proceedings, and she served her probation requirements without violation, according to the case.

She remained in the country until September 2016, when she briefly left to attend her father's burial. When she returned to the U.S. the next month, her customs inspection was deferred. She reported for deferred inspection several times over the next three years, when, despite her compliance, she was taken into custody in January 2019, she said.

She has now spent 18 months in custody, first at Krome Detention Center in Miami-Dade County, then at Glades and now at BTC, the three facilities that are the subject of the class action.

On June 6, Judge Cooke granted the detainees' motion for class certification as well as their request for a preliminary injunction after finding that they were likely to succeed on claims that ICE violated their rights under the Fifth and Eighth amendments by creating an undue increased risk of severe illness or death, including through "deliberate indifference."

The injunction requires ICE to adhere to the CDC's COVID-19 guidelines by providing detainees unrestricted access to soap, masks, disinfectants and other cleaning supplies. The order also demanded stepped-up cleaning routines, education on the coronavirus for detainees and staff, and limited transfers of detainees.

An ICE representative declined to comment, citing agency policy not to comment on pending litigation. Counsel for Lopez did not immediately return a request for comment Wednesday.

Lopez is represented by Linda Osberg-Braun of Osberg-Braun Immigration.

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

--Additional reporting by Nathan Hale. Editing by Peter Rozovsky.

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

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