By Asher Stockler

Law360 (March 18, 2021, 5:51 PM EDT ) A federal judge on Thursday ordered U.S. Immigration and Customs Enforcement to facilitate vaccinations of immigrants detained at the agency's Buffalo Service Processing Center in upstate New York.

New York District Judge Lawrence J. Vilardo said that counsel for the eligible detainees should attempt to schedule vaccine appointments within the state of New York. If appointments are available, ICE will be required to transport the detainees to and fro.

"Counsel for the petitioners shall make a good-faith effort to schedule COVID-19 vaccine appointments for all interested and eligible detainees," Judge Vilardo said. "Once vaccine appointments are secured, the respondents shall transport the detainees to and from their scheduled vaccine appointments, including a second vaccine appointment if applicable."

Judge Vilardo also noted that his order would not prevent ICE officials from attempting to secure their own vaccine supply for immigrant detainees, a prospect the agency rejected in a letter on Wednesday to the court.

ICE argued in the letter that Judge Vilardo "should allow the vaccine supply to take its natural course."

The U.S. Department of Homeland Security, ICE's parent agency, has not been approved by federal officials to receive and administer vaccines, and it does not meet the operational requirements to provide vaccines, such as maintenance of cold-storage facilities and reporting systems, Assistant U.S. Attorney Adam A. Khalil said.

"Respondents have endeavored to portray the facts above in a non-argumentative manner, in an attempt to provide additional information and guidance to the court and petitioners," Khalil added. "Nonetheless, one argumentative fact stands out: ICE … [has] not engaged in deliberate indifference such that the lack of administration of a vaccine to detainees gives rise to a substantive violation."

John Peng, an Immigrant Justice Corps fellow with Prisoners' Legal Services of New York, which represents the detainees, said that ICE's position on vaccination logistics has been unclear at times, and accused the agency of slow-walking the vaccination process.

"ICE's position has been that they don't think providing a vaccine is necessary under their constitutional obligations," Peng told Law360. "They also said there were a lot of logistical issues, and that signing up detainees at New York state sites presented roadblocks and wasn't a viable option."

Peng clarified that his office was not particularly concerned with how vaccines were sourced, just as long as they got into detainees' arms.

In Wednesday's letter, Khalil also explained that DHS was given the opportunity to receive limited vaccinations for DHS employees, but that the department did not and could not actually administer doses to other individuals, such as detainees. Rather, the Veterans Health Administration agreed to vaccinate some DHS employees at VHA facilities, he said.

Peng said that DHS should seek to amend its memorandum of understanding with the VHA to account for immigrant detainees.

"It shows that DHS can get vaccines to people within the agency. That obligation does not just extend to DHS staff, certainly, but to others in detention," he said.

Khalil identified 31 Buffalo-area detainees he said were eligible to receive the vaccine pursuant to New York state guidelines.

A total of 85 people would have been eligible under current guidelines, however several declined, were released from custody or were temporarily ineligible after contracting COVID-19, he said.

On a press call Thursday, Somil Trivedi, a senior staff attorney with the American Civil Liberties Union, said that inmates and immigration detainees are especially vulnerable to being discouraged from receiving vaccinations.

"Even where vaccines are rolling out in select detention settings, staff are sowing distrust among vulnerable populations," he said. "That's leading to an unexpectedly slow acceptance rate. ... What happens in detention settings does not stay in detention settings."

In response to a request for comment, Alvin Phillips, an ICE spokesperson, told Law360 that the agency will "always comply with judicial rulings as per standard operating procedures."

A representative for the New York State Department of Health did not return a request for comment.

The detainees are represented by Grace Zaiman of Journeys End Refugee Services, John Peng and Nicholas Phillips of Prisoners' Legal Services of New York, Joseph Moravec of the Foreign-Born Information and Referral Network, Robert Graziano of the Law Office of Robert F. Graziano, and Siana McLean of Muscato & Shatkin, LLP.

The government is 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. Wolf 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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