ICE tells federal judge its transfer policies aren’t causing coronavirus cases to spike
As coronavirus cases continue to rise behind bars, U.S. immigration officials told a federal judge that transferring detainees between detention centers is not contributing to the spread of COVID-19 at its facilities and that the agency has the right to transfer people however it chooses because it has “broad authority” to do so.
The 12-page document, filed in Miami federal court by U.S. Immigration and Customs Enforcement on Monday as part of an ongoing lawsuit seeking the release of detainees amid the health pandemic, comes after the Miami Herald reported that COVID-19 cases at an ICE detention center in Broward County skyrocketed last week after dozens of detainees were transferred there from Miami-Dade.
The story detailed how 16 out of 33 detainees transferred from the Krome detention center to the Broward Transitional Center tested positive after arriving. U.S. District Judge Marcia G. Cooke requested that ICE disclose whether “transfers have been known to result in an increase in COVID-19 cases” at any of its South Florida detention centers.
The agency said no.
“Recently, detainees that were transferred from Krome to BTC were reported to have tested positive for COVID-19. Those detainees were cleared medically prior to their transfer to the receiving facility, and COVID-19 checklists were also completed,” ICE said, noting that the agency has a system in place where new transfers are isolated in groups for 14 days when arriving at a new detention facility.
It’s unclear how ICE medically cleared the 16 coronavirus-positive detainees.
The agency noted in its response to the judge that “detainees that are in isolation, are symptomatic, have pending test results or that are cohorted due to exposure to a person with confirmed or suspected COVID-19 are not transferred or transported unless medically necessary.”
“In light of the cohorting procedures, ICE does not believe that the transfer has resulted in an increase in COVID-19 cases at BTC” because they had no contact with anyone who was already at the Broward detention center.
Cooke’s request for information is part of an ongoing lawsuit seeking to release 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 since the suit was filed by six national immigration law firms on April 13.
Though transferring detainees is common practice for ICE, the agency told the court that transfers were expedited when the litigation was filed to bring populations down. As a result, ICE moved detainees to centers in North Florida, Georgia, New Mexico, Louisiana, Texas and Arizona, among others.
While lawyers representing immigration detainees have called the practice a “shell game,” the judge had said the transferring of detainees to other centers to bring South Florida populations down was OK.
But now, the subject of transfers has raised more questions as cases continue to climb at Krome, BTC and Glades. As of May 22, Broward’s 19 detainee cases exceed the count of confirmed positive cases at the Krome detention center in Miami-Dade, which has slowly climbed to 13 over the last two months, according to the most recently available data.
Though ICE’s data doesn’t reflect Glades having any confirmed cases, ICE revealed in court documents –as part of a separate and similar lawsuit filed by the American Civil Liberties Union in Florida’s Middle District– that 99.4 percent of immigration detainees at the facility have been exposed to the coronavirus after two employees tested positive.
Over the last week, dozens of detainees with coronavirus symptoms at the detention center were separated after they had elevated temperatures; and 336 out of its 338 detainees were placed on lockdown, court records show. Many of them have been transferred from Krome and BTC. It’s unknown if any detainees have been tested.
‘Broad Authority’
ICE says it does not comment on its reasoning behind its transfer procedures for security reasons. However, in its Monday filing, it defended the practice citing the Immigration and Nationality Act of 1952, where Congress granted the U.S. Attorney General –who presides over ICE– the “broad authority” to “determine places of confinement for aliens in proceedings.”
The agency also cited a 1996 amendment to the law, which says the “Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.”
“ICE chose to reduce its detainee population by releasing some detainees, and transferring others, based upon its broad statutory authority,” the agency 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.”
In her filing late last week, Cooke also asked ICE to discuss whether or not the agency has complied with her previous court orders of supplying more “adequate amounts” of soap, water and cleaning materials,” as well as weekly masks to all detainees.
She also requested that ICE discuss whether the agency has filed its required weekly reports detailing how it intended to reduce the populations at the three detention centers to allow for better social distancing practices, as well as evaluate each detainee for “alternative detention” programs like GPS ankle monitoring.
ICE said it did all of the above, but that the agency was never “obligated” to provide “detailed” reports.
“ICE did evaluate each detainee’s eligibility for release, but it was not obligated to create a detailed analysis to support its decision not to release a particular detainee, nor was it obligated to provide an explanation to a detained individual as to why he or she was being transferred,” the agency wrote.
It added: “In the midst of the coronavirus global pandemic, which has challenged the prison administration system in ways unforeseen, substantial deference should be given to ICE detention facility administrators as they cope with the issues of creating sufficient space within its facilities, sanitizing its facilities, providing health care to detainees, and ensuring the health and welfare of detainees and staff,” the agency said. “These efforts require significant expenditures of time and attention to detail.”
ICE’s report— which was filed after Cooke ordered the agency to respond to immigration lawyers’ claims that ICE has failed to fulfil her order’s “most basic obligations,” — did not dispute the detailed allegations.
Some of the allegations chronicled in 199 pages of sworn testimony by detainees include: not providing the required masks, gloves, the lack of ability to practice social distancing during transfers, and retaliation.
The sworn testimonies also accuse ICE personnel of blocking “cameras to shield their noncompliance from oversight” and placing about 20 people in a “hielera” less than an arm’s length from one another for hours while awaiting a trip to the airport.
A hielera, Spanish for “Icebox,” is a nickname for frigid, cramped holding cells that detainees have been placed in prior to a transfer. According to national reports, detainees have been given foil blankets and have been denied mattresses and medicine.
“The unrebutted evidence shows that, rather than ameliorating the situation, ICE’s hasty transfers away from these facilities serve to subject the people transferred to additional risks of contracting COVID-19,” lawyers for the detainees wrote, noting that instead of refuting their claims, the ICE only cited the policies they have in place.
“By again pointing to its black-letter policies while leaving undisputed sworn declarations showing that it is not consistently implementing those policies, ICE has only confirmed its failure to actually and fully comply with this Court’s Orders and the [Centers for Disease Control and Prevention] guidelines.”
On Wednesday afternoon, Judge Cooke will preside over a virtual court hearing regarding the allegations and whether or not ICE has complied with Cooke’s orders in the case.
“Although ICE claims to have done this, it bristles at the suggestion that it should have documented its decision making in any way. This makes no sense,” attorneys said.
“Indeed if, in fact, ICE is neither tracking nor documenting the specific pre-transfer release decisions the Court mandated on May 2, then it cannot certify to the Court in good faith that it has scrupulously complied with this obligation as to each of the more than 100 people it has transferred. That sort of undocumented delegation creates the perfect conditions for arbitrary and capricious decisions.”
Also part of the debate is whether or not the ongoing suit should be reclassified as a class-action suit, and whether or not any of the 1,200-plus detainees who were once held at any of the three detention centers since the lawsuit was filed should be extended protections.
ICE’s position is no.
“A detainee who was once housed at Krome, BTC, or Glades, but has been transferred to another detention facility, no longer has standing to complain of conditions at those facilities, even though standing may have existed at the inception of the lawsuit,” ICE said.
“Petitioners complain that the conditions at the new detention centers are as bad, or worse than those at Krome, BTC, or Glades. 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.”
In response to ICE’s filing, attorneys representing the detainees told Judge Cooke that the risk of exposing detainees to COVID-19 “does not stop at the gates of Krome, Glades, and BTC.”
“Rather, as ICE transfers [them] around the country in unhygienic conditions, the risk of COVID-19 infection travels with them.”
