By Alyssa Aquino

Law360 (February 3, 2021, 6:58 PM EST) -- Migrants detained in Florida have urged a federal judge to allow them to pursue allegations that U.S. Immigration and Customs Enforcement left them vulnerable to COVID-19, saying their dim prospect of vaccination was "glaring evidence" that the agency was indifferent to their health.

ICE has yet to establish how it will vaccinate migrants held in three southern Florida detention centers, the detainees said Tuesday, arguing that the lack of distribution plans exposed the agency's "deliberate indifference" to detainee health and undermined ICE's claims otherwise.

"[D]ue to defendants' failure to even develop a plan for vaccine distribution, there is still no vaccine for the class members in Defendants' care — and no prospect of having access to a vaccine," the detainees said.

The detainees argued that it had "been obvious for months" that vaccination would be critical to protecting their health. Moreover, the U.S. Federal Bureau of Prisons released guidance in early January concerning vaccine distribution in federal prisons, the detainees said.

An ICE spokesperson declined to comment on the litigation on Wednesday, but said that local and state health departments are generally responsible for allocating vaccines for detainees.

"Timelines vary based on availability and priorities within each state," the spokesperson said.

The detainees' Tuesday response was a sharp rebuke to ICE's attempts to shake off proposed class allegations that the agency disregarded detainee health in the Krome Services Processing Center, Glades County Detention Center and the Broward Transitional Center.

ICE said in its bid for summary judgment that it had reduced the centers' population, reconfigured dining and sleeping arrangements, and enacted other measures aimed at curbing the virus' spread. The agency was also critical of allegations that it had snubbed measures prescribed by the U.S. Centers for Disease Control and Prevention, saying those guidelines lacked the force of law.

But the detainees countered that ICE's filing had ignored the dozens of affidavits, multiple witnesses and several depositions contradicting its position. The "scrupulously avoided" evidence includes testimony from a migrant who had been transferred in and out of a Florida facility within a two-day time span and statements about insufficient hygienic supplies at the centers, the detainees said.

The detainees added that the court had already ruled against ICE in June 2020 and directed the agency to improve conditions at the three facilities.

"It is notable that defendants do not acknowledge their past transgressions and profess that they have cleaned up their act," the detainees said. "Instead, defendants' position is that the evidence indisputably shows they have never fallen down on the job."

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.

--Editing by Jill Coffey.

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