Judge says ICE should ‘substantially’ cut detention center populations, give detainees masks
A Miami federal magistrate judge recommended Wednesday that U.S immigration officials “substantially” reduce detainee populations at three South Florida detention centers as COVID-19 positive cases continue to climb behind bars.
In his 69-page recommendation — which still needs to be reviewed by U.S. District Judge Marcia G. Cooke — Magistrate Judge Jonathan Goodman said U.S. Immigration and Customs Enforcement should be required to prove that it is accelerating the release process for non-criminal detainees in an effort to stop the spread of the coronavirus. Those who qualify for release would be subject to detention alternatives like parole, telephone monitoring, physical check-ins or GPS monitoring through an electronic ankle bracelet.
Goodman stopped short of recommending that roughly 1,200 detainees be released from the Krome Processing Center in Miami-Dade and Broward Transitional Center in Pompano Beach and the Glades County detention center in Moore Haven. A lawsuit filed by immigration advocates sought an order for ICE to release as many as 90 percent of the detainees in the three facitilies. Goodman said the court does not have the authority to issue such an order.
“The law in the Eleventh Circuit (which comprises federal courts in Florida, Georgia, and Alabama) does not permit a detained person to pursue a ‘habeas corpus’ remedy of being released from custody even if cruel and unusual punishment were to be established,” Goodman wrote. “Instead, in our circuit, the remedy is to discontinue the practice or correct the condition causing the unconstitutional punishment.”
Instead of releasing detainees en masse, Goodman said ICE should have to submit twice-weekly reports to the court detailing the number of detainees who were released from each facility.
He also said a “neutral, court-appointed expert” should inspect the three centers. The independent monitor would file a report with opinions on the number of detainees who would need to be released in order “to achieve the most amount of social distancing possible.” They would also file a report on whether ICE is following its own “pandemic response” protocols in accordance with CDC guidelines.
Judge Cooke is expected to review the magistrate’s recommendations early next week and make the final decision on whether to issue a temporary restraining order. Responses and objections need to be filed with the court by Sunday.
Detainees’ “legitimate worry about contracting COVID-19 is real and serious and bone-chilling and should not be minimized in any way,” Goodman wrote. “On the other hand, there are real-world realities about prisons and detention centers which cannot be ignored.”
Goodman explained that “operating and administering a very large physical prison or detention facility“ is an “extraordinarily difficult task” and that other courts evaluating petitions for the large-scale release of prisoners or detainees have also sometimes recognized the potential “common-sense consequences of a mass release of prisoners.”
“To eliminate any confusion, this [report] does not technically require ICE to actually release anyone. It requires ICE to only conduct its own, internal review in a good faith effort to cause the release of a substantial number of detainees,” Goodman added. “Thus, ICE would not be violating an order if it refused or otherwise failed to release detainees at the three centers. That hypothetical result would be horribly disappointing and extremely distressing, and it would undermine the spirit of this [order].”
Goodman said that “to encourage ICE to be reasonable and to help the court evaluate whether ICE is acting in good faith,” the agency should be required to also submit twice-weekly reports on how many of its detainees — and at which of the three centers — have no prior criminal convictions and no pending criminal charges, as well as those with criminal histories.
Goodman’s recommendation, filed in response to a lawsuit filed by immigration advocates last week seeking the immediate release of 90 percent of the detainees at the three South Florida centers, says the order he’s recommending would require ICE to immediately “make all efforts to reduce the population to 75 percent of capacity at each of the three detention centers” within two weeks, a “percentage sufficient to permit social distancing.”
What the population goal is for each facility won’t be known until an independent monitor investigates and reports back to the courts.
The decision to not order ICE into immediately releasing detainees but rather having the agency, as well as a neutral party, report to the courts on a weekly basis is still somewhat of a victory for immigration advocates who sued ICE and U.S. Attorney General William Barr.
The lawsuit cited legal experts and health scholars who said U.S. immigration officials are violating federal guidelines by grouping inmates together by the hundreds if they have COVID-19 symptoms or have been exposed to the coronavirus., a measure ICE calls “cohorting.”
The suit also detailed how detainees don’t have access to personal protective equipment or hand sanitizer and in some cases very little soap. As part of Wednesday’s recommendation, the judge said ICE must immediately “provide adequate amounts of soap and water and cleaning materials to detainees.” ICE would also be ordered to give masks, which should be replaced each week, to all detainees exhibiting COVID-19 symptoms, as well as detainees being “cohorted.”
“We are pleased that Magistrate Judge Goodman recognizes the urgency of the situation at Krome, Glades, and BTC. He has asked the court to order oversight of ICE’s actions to reduce the number of people in detention, among other important measures,” said Rebecca Sharpless, director of the Immigration Clinic at the University of Miami and the lead attorney on the case. “We disagree with the legal conclusion that the court lacks the authority to order release and will be filing objections to the court.”
The lawsuit was filed by the University of Miami’s immigration law clinic, the Southern Poverty Law Center, the Rapid Defense Network in New York, the Legal Aid Service of Broward County, Americans for Immigrant Justice and Prada Urizar, a private Miami law firm.
Earlier last week, the lawsuit prompted the judge to order ICE to disclose how many detainees and staffers have tested positive for the coronavirus. The order came after a Miami Herald story reported that the agency did not consider its third-party contractors ICE “staff,” and that the agency said it had no obligation to include them on its website detailing how many employees at its detention centers nationwide had contracted the virus. The Herald also reported that the agency got around having to disclose that a Miami detainee was sick with COVID-19 because the detainee was technically no longer at the detention center, but rather at a hospital. All three detention centers in South Florida — as well as 214 out of its other 222 centers nationwide — are operated by third-party contractors.
“That isn’t something we have to provide,” the agency said, later noting that ICE’s role isn’t to publish or discuss information about a third party.
The judge told ICE that “the purpose of the declarations is to provide the Court with information, and the information should be comprehensive and not limited by technicalities, such as whether a guard or officer is a government employee or an employee of a third-party contractor or contracting vendor.”
“For purposes of gauging the health risk to detainees, it matters little whether a COVID-19-infected guard or officer receives a paycheck from the United States or from” a contractor, he said.
In Wednesday night’s filing, Goodman said “as an initial point, it is clear that ICE can, if it makes a conscious and substantial effort, significantly reduce the number of detainees at a center.”
“At Broward, for example, all detainees over 60 years of age have been released and the overall detention population has decreased by 35%,” Goodman wrote. “So, it is clear that ICE fully understands the benefit of reducing the detainee population and the benefit a reduction has to eliminating the risk of transmitting COVID to detainees, staff members, the families of employees and independent contractors and vendors/others who visit the facilities.”
During a virtual court hearing last week, Dexter Lee, an assistant U.S. attorney for the Department of Justice representing ICE in the lawsuit, said the agency was unwilling to agree to the release of detainees, and that ICE had already determined who were the most medically vulnerable and has granted their release.
Lee suggested that instead ICE would reconfigure their detention centers to allow for social distancing or instead put up makeshift tents outside, stressing that the agency is concerned that the burden of releasing detainees “will disproportionately fall on the shoulders of ICE” because the agency is responsible for making sure they have a safe place to go.
In response, Goodman said ICE must notify the court if it has “any plans, even preliminary ones, to modify any of the detention centers, to construct new immigration detention facilities in South Florida or to erect provisional housing, such as ‘tent cities,’ at either existing or new South Florida locations.”
Lee did not immediately respond to an email requesting comment. Last week ICE told a reporter the agency doesn’t comment on pending litigation.
As of Wednesday, only two detainees in Florida have tested positive for the virus and they are being housed at Krome. Eight staff members at Krome also tested positive.
After one of those infected detainees was granted release, the Miami Herald published a story about how the 27-year-old Mexican national would be stranded with nowhere to go because his family is scared of getting the virus. The story cited experts who weighed in on whether ICE bears the responsibility of arranging a safe place to self-isolate in post release since he caught the virus in ICE custody.
On Monday, three days after the story ran, ICE told the detainee and his legal team that his release was granted in “error” and rescinded it, federal records show.
Immigration officials said Monday they need proof that he has a place to go before “considering” granting his release again.
This story was originally published April 22, 2020 at 7:38 PM.
