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Miami ICE Detainees Unlikely to Get Quick Covid Class Certified

May 14, 2020, 10:12 PM

ICE detainees housed at three Miami facilities face an uphill battle for expedited class status in their suit alleging the agency is being deliberately indifferent to their chances of contracting the coronavirus, after a federal magistrate judge cited a contrary Illinois ruling during a Thursday hearing.

U.S. Magistrate Judge Jonathan Goodman of the Southern District of Florida, who presided over the hearing held over Zoom, said he was “surprised” that neither counsel for the detainees nor the Justice Department had referenced the Illinois federal court’s April 10 decision. There, the Northern District of Illinois declined to certify a class of state inmates concerned about their risk of Covid-19 infection because of the need for individualized findings related to each inmate.

The difference in the Miami case is that the detainees are challenging Immigration and Customs Enforcement’s common policies at all three of the Miami facilities—the Krome Service Processing Center, the Broward Transitional Center, and the Glades County Detention Center—and because the modifications of ICE policies and practices would affect all members of the proposed class, Scott Edson of King & Spalding LLP responded.

Whether ICE is acting with deliberate indifference to the detainees’ risk of harm would be common to all class members, regardless of individualized health conditions or suitability for release, Edson argued.

If the class of 1,400 detainees housed at the three facilities is certified by the Southern District of Florida, King & Spalding LLP would serve as lead class counsel, according to the detainee’s expedited motion for class certification.

The detainees secured an early win in their lawsuit May 1, when U.S. District Judge Marcia G. Cooke issued a temporary restraining order requiring ICE to evaluate which civil immigration detainees are suitable for release and to distribute adequate soap and other hygiene materials.

The government also disputed the standing of some ICE detainees named in the suit, arguing that they had been transferred to other ICE detention facilities outside of the court’s jurisdiction after filing their lawsuit. Consequently, it said, they can’t continue to challenge the circumstances at the Miami locations.

ICE does have broad discretion to transfer detainees in its custody, Goodman acknowledged, but he pressed Justice Department attorney Dexter Lee as to whether ICE was playing a “shell game” by moving complaining detainees to new facilities outside of the court’s jurisdiction in order to defeat their claims.

Mooting those detainees’ claims based on that logic could create problems where similar Eighth Amendment claims brought by ICE detainees during the Covid-19 public health crisis are capable of repetition but evade judicial review, Edson said.

Goodman adjourned the hearing without issuing a ruling.

The case is Gayle v. Meade, S.D. Fla., No. 20-cv-21553, hearing on class certification 5/14/20.

To contact the reporter on this story: Porter Wells in Washington at pwells@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com