Investigator to look at ICE detention centers

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Judge orders probe of three facilities in South Florida

Foreign nationals at the Krome detention center, where those with criminal records and deportation orders are often held, in Miami in September 2015. COVID-19 is running through the center.

JOSE A. IGLESIAS/MIAMI HERALD/TNS

BY MONIQUE O. MADAN
MIAMI HERALD/TNS

MIAMI — Citing possible “inhumane conditions, deliberate indifference and cruel and unusual punishment” at three South Florida immigration detention centers, a Miami federal judge appointed an independent investigator to determine whether or not U.S. immigration officials have violated her previous court orders aimed at preventing coronavirus cases behind bars.

“A continued failure to provide detainees with bare minimum necessities and supplies to survive the pandemic is evidence of deliberate indifference to medical needs, tantamount to the infliction of cruel and unusual punishment because it increases the risk of exposure to a lethal and highly contagious disease,” U.S. District Court Judge Marcia G. Cooke said Monday in an eight-page order.

She added: “The eighth amendment does not mandate comfortable prisons, but neither does it permit inhumane ones. … Accordingly, the Court finds it appropriate to appoint a special master … to assess whether ICE is committing an ongoing violation of the detainees’ constitutional rights.”

Miami lawyer chosen

In her strongly worded order — which is part of an ongoing lawsuit seeking the release of about 1,200 U.S. Immigration and Customs Enforcement detainees — Cooke appointed Michael B. Chavies, a longtime Miami trial lawyer and former Miami-Dade circuit judge, to inspect and investigate three ICE detention centers: the Krome Processing Center in MiamiDade, the Broward Transitional Center in Pompano Beach and the Glades Detention Center in Moore Haven.

Chavies, who specializes in civil litigation, appellate law and criminal defense, is a partner at Akerman LLP. Chavies also serves on the firm’s diversity and inclusion committee. He will be paid $650 an hour until Cooke’s order expires on Aug. 1. The cost will be split equally between ICE and the detainees’ lawyers.

The court gave Chavies the authority to request any records, physically inspect the three facilities and take photos and videos of the conditions inside. Cooke said Chavies’ findings will be filed under seal, until they are redacted and filed publicly.

Failures cited

Cooke’s designation of a “special master” is in response to a recent motion filed by immigration lawyers accusing ICE of violating the courts’ April 2020 order by: co-mingling COVD-19-positive detainees with individuals who have not been confirmed with the disease, failing to provide cleaning supplies and masks to detainees and not educating detainees about the COVID-19 pandemic.

The detainees and their attorneys also accuse the agency of not promoting or enforcing social distancing within the detention centers.

Cooke indicated at a June 25 hearing that she was considering having an independent fact finder gather evidence, after some detainees gave live testimony via telephone. She also noted that the court had received almost two hundred pages of handwritten notes by detainees behind bars, personally addressed to the judge.

On transfers

Immigration lawyers’ “voluminous sworn declarations and credible live testimony support these allegations, which also assert that ICE continues to transfer detainees without first confirming their COVID-19 status or providing new masks before commencing transfer,” Cooke said.

“In balancing (the) allegations with ICE’s submissions, each of (the) allegations, if true, would be in direct contravention of the preliminary injunction order.”

On June 6, Cooke ordered ICE to “cease the practice of commingling detainees with unconfirmed COVID-19 cases with those with confirmed COVID-19 cases; provide detainees with sufficient quantities of CDC-recommended cleaning supplies and disinfectants; provide all detainees and staff members with masks and educate them on the importance of its use; provide detainees with unrestricted access to hand soap, hand sanitizer, and hand towels, and educate detainees on the COVID-19 pandemic.”

Soap, sanitizer, education

During court hearings and in documents submitted to Cooke, ICE told the court the agency is obeying the court order by providing and replenishing adequate supplies of personal protective equipment, soap, hand sanitizer, water and cleaning materials. The agency also said that detainees have been educated on the virus.

The judge noted that ICE has admitted to Cooke that the agency has, in one instance, mixed COVID-19-positive detainees with those that have not been tested at Glades. However, the agency denies that it is currently commingling confirmed COVID-19 with asymptomatic individuals.

ICE did not respond to allegations concerning the lack of social distancing within the detention centers themselves, except to state that it has developed seating charts for its vans and buses “to maximize social distancing while transporting ICE detainees,” Cooke wrote.

The case, which was filed on April 13 by six national immigration law firms — 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 — will be going to trial in January 2021.

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