Immigration advocates try to close ICE loopholes in lawsuit

Immigration advocates, fresh from a victory Thursday in which a federal judge ordered immigration authorities to release some detainees at three South Florida detention centers, moved Friday to try to close what they say may be a loophole in the ruling.

Late Thursday, U.S. District Judge Marcia G. Cooke issued a scathing 12-page order saying U.S. Immigration and Customs Enforcement must report to the court how it plans to release detainees from the Krome Processing Center in Miami-Dade, the Broward Transitional Center in Pompano Beach and the Glades County detention center in Moore Haven.

What the order didn’t address: Whether ICE, rather than release detainees, could simply move them to other detention centers to relieve crowding that the judge said amounts to “cruel and unusual punishment” during the coronavirus pandemic.

Though the judge acknowledged that ICE is “required to restrict transfers” under guidelines from the U.S. Centers for Disease Control and Prevention, she didn’t outright say the agency is prohibited from transferring people.

Such transfers have already taken place in the weeks after the lawsuit was filed on April 13. The Miami Herald has reported on dozens of ICE transfers that bused detainees in large groups from the three

South Florida facilities to other centers, including the Baker County Detention Center in North Florida, the Folkston ICE Processing Center in Georgia, and the LaSalle and Pine Prairie ICE Processing Centers in Louisiana.

“It’s like a shell game,” said Mark Prada of the Miami law firm Prada Urizar, one of the lead attorneys on the case. “If the goal is to reduce the population at these three centers to a safe level by simply transferring detainees to other locations, then that’s not curing the issue, but just shifting the problem to another place.”

Prada and other members of the legal teams — lawyers for the University of Miami’s immigration law clinic, the Southern Poverty Law Center, the Rapid Defense Network in New York, Americans for Immigrant Justice, the Legal Aid Service of Broward County, and Washington, D.C.-based law firm King & Spalding — filed a motion Friday afternoon asking Cooke to clarify her order.

“We don’t know if ICE is going to spread its detention populations across its facilities to attain safe levels at all facilities across the board, or if they are just going to shift people to other facilities that will supersede its capacity and that are not under the microscope of a federal lawsuit,” Prada said. “If ICE is choosing to do the latter, even though it superficially appears that the three facilities are in compliance with the Constitution, in reality they are just sweeping the problem under a different rug.”

Asked whether the government plans to appeal the judge’s order, Marlene Rodriguez, special counsel to the U.S. Attorney’s Office, which is representing ICE in the case, said “the government is considering its options.”

In the order filed late Thursday, Cooke said ICE is acting with “deliberate indifference” about the “cruel” conditions of its detainees as the number of coronavirus cases continues to rise behind bars.

“Such failures amount to cruel and unusual punishment because they are exemplary of deliberate indifference,” Cooke said in her order, which was filed just hours after the Miami Herald published a story detailing current conditions inside Krome. “Accordingly, there is sufficient evidence in this record to determine that the present conditions at the three detention centers constitute a violation of the Petitioners’ Fifth and Eighth Amendment rights.”

In the order, the judge also said the agency has to submit weekly reports on the releases in the next 10 days, then twice weekly after that. She also ordered ICE to provide masks to all detainees within two days of her ruling, and replace them once a week.

Cooke said ICE must shrink its detainee populations to 75 percent of the capacity at each center. The capacity for the Krome Processing Center in Miami-Dade is 572, Broward Transitional Center’s is 700, and Glades County detention center’s is 463,

ICE spokesman Nestor Yglesias said Friday.

According to federal records filed on April 20 — the most current population tally publicly available — populations at the three centers have hovered around 600 for Krome, 440 for BTC and 410 at Glades. ICE says it does not provide daily population totals for detention centers because they change by the hour.

At the Glades detention center detainees told the Herald that about two dozen people are being transferred out each day. Detainees at Krome say that staffers were given a list of the detainees who were named in the federal lawsuit because they’ll “be moved soon.”

One ICE staffer, who works at Krome, confirmed transfers were happening “to discreetly bring the population down.”

“They are moving a lot of people out,” said one detainee, who asked not to be named fearing retribution. “I heard there’s a motion out there where they are going to release a lot of detainees, so they are moving all they can before it comes true.”

But transferring detainees to remote facilities, including ones that are outside the jurisdiction of the presiding immigration court, is common practice for ICE, according to a December 2018 report by the American Immigration Council.

The report says that a majority of adult detainees were transferred to different cities, states, or federal judicial circuits.

“About 60 percent of adults who were detained in fiscal year 2015 experienced at least one interfacility transfer during their detention,” the report said. “Of those adults who were transferred, about 86 percent experienced at least one intercity transfer, 37 percent experienced at least one interstate transfer, and 29 percent experienced at least one transfer across different federal judicial circuits.”

A policy directive issued by ICE in 2012 details officially sanctioned reasons for transfers, including “medical or mental health care to the detainee” and the “safety and security of the detainee, other detainees, detention personnel or any ICE employee.”

Advocates and researchers, however, have reported a variety of other reasons for transfers, “including retaliation against detainees for speaking up or organizing. To our knowledge, ICE does not maintain electronic records of why any given detainee is transferred, nor how ICE’s placement and transfer policies work in practice on the ground,” the report says.

The judge’s temporary restraining order lasts 14 days, at which point it could expire or be extended for however long she decides. Generally, her order can’t be appealed before the 14 days are over, though there are some exceptions.

“A lot of unknowns,” said Paul Chavez, a lawyer on the case and senior supervising attorney for the Southern Poverty Law Center. “We don’t know what’s gonna happen with this pandemic. The judge’s order was very open-ended.”

Though ICE would not comment on its future moves, the agency’s stance has been that the federal court’s “directives as to how ICE is to exercise its detention authority exceeds this court’s jurisdiction to adjudicate cases and controversies. There is no basis for this court’s oversight of ICE’s administration of its sound policies.”

In response to a very similar ruling in Southern California, in which a judge ordered ICE to reduce the number of people at a detention center in San Bernardino County, the agency appealed the order. A federal appeals court has temporarily halted the order.

But for detainees in South Florida, the thought of a possible appeal makes their “bones tremble,” said Miguel Torres, a 38-yearold Mexican national who has been in ICE custody for six months.

When the news broke Thursday night about the judge’s order, TVs carrying the 11 o’clock news were turned off, Torres said.

“Our biggest worry is that we get moved,” said Torres, who is one of at least 350 detainees at Krome who have been identified by ICE as having been exposed to COVID-19 and then segregated en masse.

“Everyone is already sick in here,” he added. “A lot of us barely have family here, not to mention lawyers, so being dispatched to a far-away prison, heightening our exposure to coronavirus even more, would be just sending us to die, die alone.”