Will ICE detainees testify virtually? Federal judge asks agency ‘to work something out’
A Miami federal court judge has asked U.S. immigration officials to “work out” a way for three South Florida detainees to testify virtually from behind bars.
“This virtual world is pretty good,” said U.S. District Court Judge Marcia G. Cooke Tuesday during a virtual hearing via Zoom, the program many courts are using to keep cases active. “We’ve been able to do a lot of things that even I have been reluctant to do in the past... See if you can work something out.”
Cooke’s request is part of an ongoing lawsuit seeking the release of detainees in the custody of Immigration and Customs Enforcement in Miami-Dade, Broward and Glades counties amid the COVID-19 pandemic. Tuesday’s hearing was scheduled for both parties to argue whether Cooke’s temporary restraining order, which mandated that ICE lower detainee populations at its three South Florida faculties, should become a more enduring preliminary injunction.
The detainees planned to testify about their “health and the conditions of detention, including without limitation the availability of healthcare, the ability to social distance, sleeping conditions, eating conditions, the availability of soap and personal protective equipment such as masks, and transfers,” court records show.
Six immigration lawyers, who are proposing that the detainees be released on GPS monitors, filed the lawsuit in early April. The group had requested late Monday that ICE help coordinate the detainees’ remote attendance from the Krome Processing Center in Miami-Dade, the Broward Transitional Center in Pompano Beach and the Glades County detention center in Moore Haven.
ICE denied the request, saying that it could not do so because the Department of Homeland Security, which oversees the immigration agency, does not allow Zoom to be downloaded on government computers.
DHS “has forbidden the downloading of the Zoom app on DHS-issued computers, desktops and even iPhones,” said Dexter Lee, an assistant U.S. attorney representing ICE. It’s unclear whether using the web browser version of the program is allowed or if a private computer could be taken to the centers.
“They have to be put in front of a DHS computer and they do not allow that application. The petitioners have known since last Thursday that this hearing was going to be reconvened on June 2, but they waited until yesterday afternoon. Now, there may be ways to find alternate arrangements via some virtual medium, but not in the amount of time that they gave us to do.”
Judge Cooke responded: “I’m sort of in agreement with Mr. Lee on this one.”
“I think letting him know [Monday], even with magical powers, he could not have made it possible,” she added, noting that both parties now will have until Wednesday at 11:30 a.m. to “work something out.”
Scott Edson, a class action defense attorney with King & Spalding in Washington D.C., one of the law firms representing 58 named detainees in the case, told Cooke he “appreciate[s] what the court is saying,” citing “access to counsel issues” inside the three facilities.
“We just want the court to understand that it’s not like we were sitting on our thumbs,” Edson said. “My colleagues were scrambling to make contact with these folks... and to get people lined up to see if they were willing to testify on short notice.”
Historically, getting in contact with people in ICE detention has been challenging for detainees’ family members as well as their legal counsel, lawyers say. Detainees can call only when phones are available and during certain times. Incoming calls are not allowed and the detainee has to have money in their detention center account to speak. Translators and/or interpreters also need to be involved.
Though the three detainees were not in attendance, immigration attorneys asked Dr. Joseph Shin – an assistant professor of medicine at Weill Cornell Medicine, a founding member of the Cornell Center for Health Equity, and past medical director for the Weill Cornell Center for Human Rights – to testify about the risk of contracting COVID-19 behind bars.
As part of his sworn statement, Shin also discussed how the “degree of transmission increases significantly” inside detention.
Shin recited U.S. Centers for Disease Control guidelines – social distancing and hand hygiene - that are vital to slowing the spread, but suggested that detention facilities implement a “mask-on” policy, which would require everyone who enters the building to wear a mask at all times to slow the spread inside the densely populated facilities.
He also said the same measures should be used during transfers between detention centers “for anybody coming into contact with that person,” including bus drivers, operational staff or airport officials facilitating deportations.
“That means personal protective equipment, gloves, masks , and a gown covering the body,” Shin said. “Each person transferred brings a new risk.”
During cross-examination, Lee, ICE’s attorney, told Shin that the government has heard of “anecdotal evidence that physicians like yourself who are treating COVID-19 patients are being asked, or are having to resort, to use the same equipment over and over again. It’s not the proper standard, but people reuse it from patient to patient, because a used mask is probably better than no mask. Is that accurate?”
Shin responded: “We know that some equipment can be effectively reused if adequately cleaned or protected. Now reusing PPE, if done incorrectly, can actually increase the risk of transmission…Unfortunately we’ve seen some evidence of some healthcare workers getting infected and some have passed while they are working on the front lines... So yeah, I think you are pointing out a real tragedy.”
During a hearing last week, Lee admitted that ICE is not conducting COVID-19 testing on every detainee who gets transferred from one detention center to another, saying the agency doesn’t have enough tests to do so. Instead ICE is only testing people who have symptoms — a protocol that has resulted in the agency transferring some detainees who are asymptomatic but still carry the virus.
Though frequently transferring detainees is common practice for ICE, the agency told the court that the moves were sped up when the litigation was filed to bring populations down, per Cooke’s order. At the time, the judge cited conditions inside the detention centers that she said amounted to ”cruel and unusual punishment,” as well as constitutional violations. She ordered ICE to lower detainee populations to 75 percent capacity at each facility to allow for social distancing.
On Tuesday, Lee alluded to the agency’s efforts to comply with Cooke’s order, which he said was the best and only option given the “national shortage” of testing kits.
“Would you regard [ICE’s decision] to transfer people out to relieve overcrowding a responsible decision?” Lee asked the doctor.
“It depends,” Shin said. “In medicine we are often making decisions and accepting certain risks if the benefit is better. While a decision to transfer, in of itself, might have been made by leadership at some facility, one also needs to take into account the other part of that equation.”
Last month, that equation resulted in COVID-19 cases at the Broward Detention Center to significantly rise after 33 detainees were transferred there from Miami-Dade; 16 of the 33 ultimately tested positive for the illness hours after arriving at the facility.
Lee compared the rising numbers of coronavirus cases in ICE detention centers to that of nursing homes and assisted living facilities, noting that despite the nature of the facilities, discharging all the patients “is not a “viable solution, is it? These are people that unfortunately don’t have caregivers at home.”
Shin said he agreed that if someone has complex medical needs, a setting like a nursing home or hospital would be better than being released. However, if someone has the ability to be home, it could “decrease the risk of getting ill or maybe dying,” he added.
As of Monday, Krome has had 15 detainees test positive for the coronavirus, Broward has had 20 and Glades has had 2, ICE data shows. According to federal court documents, 13 staff members at Krome and 6 staffers at Glades have tested positive. Glades currently has 320 people who have been exposed to COVID-19, Krome has 37 and Broward has 84.
During a Senate Judiciary Committee hearing in Washington on Tuesday, ICE officials spoke about the detention policies during the pandemic.
Dr. Ada Rivera, deputy assistant director for clinical services at ICE, said the agency started ‘testing at intake” at 22 of its 200-plus detention centers.
“Our goal is to test everyone at intake,” said Henry Lucero, ICE’s executive associate director for the agency’s Enforcement and Removal Operation department.
As of May 31, 52.6 percent of detainees who have been tested have been positive for COVID-19, ICE data shows.
Scott Allen, who serves as a medical expert in detention health for DHS’ Office of Civil Rights and Civil Liberties, testified in writing during the hearing.
“I urge you to recognize that this virus does not care who you are or what uniform you wear. It can easily move in and out of facilities undetected in the absence of aggressive testing-based surveillance and containment,” his statement said. “Inmates, detainees, corrections officers, and correctional healthcare staff are not biologically different from everyone else. Therefore, there should be parity in the public health standards driven by solid public health principles and evidence of best practices as they evolve.”
