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Law360 (May 1, 2020, 2:12 PM EDT ) A Florida federal judge ordered U.S. Immigration and Customs Enforcement on Thursday to significantly reduce the number of people in its custody at three Florida facilities because of the COVID-19 pandemic and to hand out soap, cleaning materials and masks to all detainees.
U.S. District Judge Marcia G. Cooke ordered ICE to reduce the population of detainees at the three facilities to 75% of capacity within two weeks, after pointing to evidence showing the impossibility of social distancing in ICE facilities, where bunk beds are often just 12 inches apart.
The judge said ICE has "demonstrated deliberate indifference" with regard to the safety and well-being of immigrant detainees, whose Fifth and Eighth amendment rights are being violated.
"While the [Centers for Disease Control and Prevention] guidelines allow flexibility, that does not absolve ICE of its responsibility with respect to the mandatory provisions of the guidelines designed to protect the health of detainees," Judge Cooke said. "ICE is still expected to follow its own regulations."
The judge also ordered ICE to evaluate each of the 34 named detainees who filed suit over the allegedly inadequate conditions and inform the court within a week which ones can be released promptly. ICE will have to provide masks, soap and cleaning materials to all detainees within two days, according to the order.
Judge Cooke said she realizes this creates "several procedural and logistical hurdles for ICE," but pointed to the more than 1,000 people who have already died of COVID-19 in Florida.
"Time is of the essence," the judge said. "Accordingly, the court fully expects ICE to work with a sense of urgency to meet the deadlines set forth and refrain from requests for extensions of time absent extenuating circumstances."
The order partially adopts the 69-page report and recommendation issued last week by U.S. Magistrate Judge Jonathan Goodman, who concluded that ICE should significantly reduce its detainee population to protect people in custody but said the district court lacks the legal authority to order immediate releases. He suggested immigration authorities should be ordered to take mitigating steps and speed up consideration of possible releases under court oversight.
The 34 detainees at the Krome Service Processing Center in Miami-Dade County, the Glades County Detention Center and the Broward Transitional Center in Broward County filed their proposed class action April 13 alleging that crowded, unsafe conditions have created an undue increased risk of severe illness or death.
In their complaint, the detainees allege that the government has violated the Fifth Amendment through its failure to abide by the CDC's guidelines during the COVID-19 pandemic. The conditions of their current confinement amount to a "state-created danger" that is excessive and amounts to impermissible punishment, according to the suit.
Paul Chavez, an attorney with the Southern Poverty Law Center's Immigrant Justice Project who is representing the plaintiffs, called the decision "a promising step in the right direction to end the cruel and unusual punishment of nearly 1,400 individuals detained in South Florida."
"We look forward to holding ICE accountable to this order and will be filing for class action certification soon," Chavez said in a statement. "The urgency of the situation cannot be understated. By ignoring the advice of doctors and public health experts, the agency is knowingly putting detained peoples' lives in grave danger."
An ICE representative did not respond to a request for comment Friday.
The detainees are represented by Rebecca Sharpless and Romy Louise Lerner of the University of Miami School of Law Immigration Clinic; Gregory P. Copeland and Sarah T. Gillman of the Rapid Defense Network; Mark Andrew Prada and Anthony Richard Dominguez of Prada Urizar PLLC; Paul R. Chavez and Maia Fleischman of the Southern Poverty Law Center; Andrea Montavon-McKillip of the Legal Aid Service Of Broward County Inc. and Lisa M. Berlow-Lehner of Americans for Immigrant Justice.
The government is represented by Dexter Lee and Natalie Diaz of the U.S. Attorney's Office for the Southern District of Florida.
The case is Gayle et al. v. Meade et al., case number 1:20-cv-21553, in the U.S. District Court for the Southern District of Florida.
--Additional reporting by Nathan Hale. Editing by Abbie Sarfo.
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