ICE opposes class-action suit, says it would rather litigate 1,200 lawsuits instead
U.S. immigration officials would rather deal with some 1,200 individual lawsuits instead of litigating one class-action suit seeking the release of South Florida detainees amid the coronavirus pandemic, an attorney representing the agency told a Miami federal judge Thursday.
An ongoing lawsuit — filed by six national immigration law firms on April 13 on behalf of 58 detainees in ICE custody at three South Florida detention centers — seeks to have the courts release not just the named petitioners, but also the approximately 1,150 other detainees who were, are or will be held at the Krome Processing Center in Miami-Dade, the Broward Transitional Center in Pompano Beach and the Glades County detention center in Moore Haven.
Federal magistrate judge Jonathan Goodman heard arguments via Zoom on Thursday on whether or not the ongoing suit should be reclassified as a class-action suit.
“If 1,200 people wanted to file their own lawsuits, they can certainly do so,” said Dexter Lee, a senior attorney for the Department of Justice representing ICE, reiterating that the agency does not think a class-action lawsuit would be appropriate because each detainee’s case should be reviewed individually.
“It may sound harsh, but yes, that’s the method by which these claims would be adjudicated,” he added.
The hearing was held days after ICE filed documents with the court saying it had complied with a federal judge’s order to cut populations at Krome, BTC and Glades. Citing “cruel and unusual punishment” behind bars, last month Miami U.S. District Judge Marcia G. Cooke issued a 14-day temporary restraining order saying ICE must shrink its detainee populations at the centers to 75 percent of the capacity to allow for social distancing.
On Thursday, ICE told the court it did so by transferring detainees to other detention centers in other states, deporting them and in a few cases, releasing them on parole or GPS monitoring devices. Cooke’s temporary restraining order is set to expire on Friday.
If Cooke decides to extend it, she would have to file her decision by Friday midnight. If she doesn’t, ICE will no longer be ordered to file weekly memos to the court on how it is considering the release of each detainee. Populations at the centers will be able to exceed the 75 percent capacity threshold again.
As part of their arguments against a “class” certification, ICE said that when detainees are transferred to other facilities outside of the three detention centers at question, they no longer have grounds to “complain” within the court’s jurisdiction and that their case should be “mooted.”
“The individual ceases to be detained when they depart the detention center,” Lee said. “They lose the standing to complain because they are no longer there.”
But the attorneys representing the detainees — 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, Washington, D.C.-based law firm King & Spalding and Miami law firm Prada Uriza — disagreed.
“Release is not the same as a transfer; they are still very much in ICE custody,” said Scott Edson, a class action defense attorney with King and Spalding. “Even if ICE momentarily satisfies” guidelines from the Centers for Disease Control and Prevention for social distancing and hygiene, he added, “it still would not moot their case because tomorrow ICE can send them back to live in squalor.”
Magistrate Goodman then asked the ICE attorney: “How do you respond to the plaintiffs’ theory or suspicion” that “ICE keeps playing this ‘shell game’ and treating the detainee as a ‘pawn’ in a never-ending game of keeping the detainee out of the jurisdiction of the court and arguing that he/she no longer can complain about this facility because they are at some other facility?”
Lee responded that “there is no evidence to support such a claim at this point.”
“Indeed if that were to happen, and it happened, two, or three, or four times, then it would become more likely to be true — that there was a ‘shell game’ being perpetrated,” Lee said. “At that point a court could do something about it, but we are nowhere near that.”
Goodman asked if there was any “actual evidence to suggest that these transfers were done in bad faith” other than their “general suspicion” and “fundamental, in the-core-of-your-gut distrust of ICE.”
Immigration attorneys told the judge that they have no way of obtaining concrete evidence because ICE has not disclosed information and data regarding its transfer activity during the course of litigation. And the agency has not allowed the attorneys to inspect the facilities, they added.
Goodman said he prefers that ICE release their transfer data “voluntarily.”
“To me this request sounds reasonable,” Goodman told Lee, and gave ICE a Monday deadline to decide whether the agency will agree to produce the records. “At the end of the day, you might as well have a candid conversation and persuade your clients to voluntarily produce it. I also want to flag a potential issue. If [ICE’s] concern is that it may reveal personal health information, they could redact appropriate language.”
Though transferring detainees is common practice for ICE, the agency told the court in its filings that transfers were accelerated when the litigation was filed to bring populations down. As a result, detainees were shuffled in the middle of the night to detention centers in North Florida, Georgia, New Mexico, Louisiana, Texas, and Arizona, among others.
As of May 7, Krome’s population was reduced to 71 percent capacity, Glades’ population was at 74 percent capacity and BTC’s at 65 percent.
The capacity at Krome is 572, at BTC it is 700 and at Glades it is 463.
As of 6 a.m. May 14, ICE says it has 1,194 detainees in custody at Krome, BTC and Glades. Out of those, 860 are subject to mandatory detention because of their criminal history. Out of the remaining 334, 293 detainees don’t have criminal convictions but have pending criminal charges; 41 detainees don’t have criminal convictions or pending charges.
This story was originally published May 14, 2020 at 12:00 AM.
