By Jennifer Doherty

Law360 (March 4, 2021, 9:02 PM EST ) A New York federal judge says he would consider ordering U.S. Immigration and Customs Enforcement to release vulnerable individuals from its Batavia detention center if that is the only way they can get access to the COVID-19 vaccine.

At a hearing Thursday, U.S. District Judge Lawrence J. Vilardo told counsel for ICE leadership and migrants held in the Buffalo Federal Detention Facility in Batavia, New York, that he did not want to "swat a fly with a sledgehammer." But, he said he was determined to ensure that the detained individuals' right to due process and safe conditions of confinement were upheld — rights he found ICE to be violating by not providing vaccinations.

"There are ways to get this stuff," the judge said. "If the way is threatening to release these folks unless they are vaccinated by a certain date, which would certainly, I think, light a fire under a whole lot of people to get the vaccine to Batavia, I'll do that."

Judge Vilardo rejected an analogy raised by Assistant U.S. Attorney Adam Khalil, who equated current social distancing practices at Batavia to administering an EpiPen to someone having an allergy attack instead of taking the person to a hospital. While ICE's COVID-19 protocols would be better if they included vaccinations, Khalil said, they did not amount to deliberate indifference as the detainees have claimed.

"We have detainees — including vulnerable detainees — who have contracted COVID at the facility, so those measures that you're taking are not working. They're not protecting these folks," the judge responded. "The vaccine will do a better job of protecting these folks and you're doing nothing to get them the vaccine. Nothing. Zero."

He was slightly more sympathetic to arguments that ICE officials had been trying unsuccessfully to get New York state and Genesee County officials to provide the facility with doses. However, since that approach was not working, it was time for ICE to look for solutions elsewhere, he said.

The judge and ICE's counsel both raised the prospect of expanding the detainees' suit to include New York state, the Centers for Disease Control and Prevention or other authorities with a hand in the country's ongoing vaccination campaign.

The judge ordered John Peng of Prisoners' Legal Services of New York, who represents the migrants, to look for available vaccination appointments in and around Genesee County, where the detention center is located, and come up with a draft schedule for migrants deemed vulnerable to COVID-19 under Centers for Disease Control guidelines to get vaccinated outside the detention center.

The judge declined to set a geographic limit on Peng's search. He also encouraged counsel to provide other ideas for how ICE could get vulnerable detainees at the facility vaccinated, short of releasing them.

On ICE's side, transporting detainees presented not only logistical hurdles but also public safety burdens, given that five of the migrants in the suit had criminal histories, according to Khalil.

Judge Vilardo responded that the prospect of transporting the detainees out into the public domain for their shots might motivate ICE leadership to get on the phone with federal public health officials to get doses to Batavia.

"These folks deserve a chance to get this vaccine and Mr. Peng is absolutely right that the United States government has taken the responsibility for these folks' health by detaining them," the judge said. "And I'm not going to let the United States ignore them."

In a statement to Law360 following the hearing, representatives for the New York Civil Liberties Union, which represented the Batavia detainees in a related class action last year, emphasized that the U.S. Department of Veterans Affairs, the U.S. Department of Defense and the Bureau of Prisons have all been able to acquire doses.

"ICE did not have a response for why they could not do the same," the NYCLU said.

Representatives for ICE did not immediately respond to a request for comment Thursday.

The migrants are represented by Robert F. Graziano, Siana McLean of Muscato & Shatkin LLP, Joseph David Moravec, John H. Peng of Prisoners' Legal Services of New York and Grace Ellen Zaiman of Journey's End Refugee Services.

The secretary of homeland security and ICE officials are represented by Adam A. Khalil of the U.S. Attorney's Office for the Western District of New York.

The case is Jones et al. v. Mayorkas et al., case number 1:20-cv-00361, in the U.S. District Court for the Western District of New York.

--Editing by Bruce Goldman.

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