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Lawsuit Claims ICE Response to Coronavirus ‘Marked by Secrecy and Cover-Up’


Odalys K. Fernandez holds a sign reading, “Caution!! Coronavirus risk at Miramar Ice cage,” as she joins protesters outside of a U.S. Immigration and Customs Enforcement (ICE) office on March 13, 2020 in Miramar, Florida.

Immigration and Customs Enforcement (ICE) is violating novel Coronavirus (COVID-19) guidelines promulgated by the Centers for Disease Control and Prevention (CDC), endangering people’s lives, lying about their violations and failures, and trying to cover it up, according to a lawsuit filed in federal court on Monday.

The 111-page class action complaint and habeas corpus petition noted that several immigrant detainees “are at imminent risk of contracting coronavirus” due to ICE’s “inability to follow” CDC guidelines as well as “state and local directives” meant to slow the contagion’s spread.

Filed on behalf of multiple detainees at three separate Miami-area lockups, the lawsuit alleged a regime of subterfuge and deception at work to paper over ICE’s mistakes and mismanagement of their own facilities–all of which have been farmed out to private contractors–in direct contravention of recommendations by the federal government’s own public health authorities.

“The spread of COVID-19 in ICE detention in Florida has been marked by secrecy and cover-up,” the filing reads.

ICE allegedly misrepresented and stonewalled about the existence of COVID-19-positive detained individuals and correctional officers in the detention centers when pressed by reporters from the Miami Herald and attorneys with the city’s local voluntary bar association.

“After a bar association liaison member asked ICE if there were detained individuals who had tested positive, she reported back to membership that ‘there has been NO CONFIRMATION by ICE of detainees at [two of the detention centers] who have tested positive for COVID-19’ and referred members to ICE’s website where it reports confirmed positive cases,” the lawsuit notes–dating the incident as having occurred on March 27, 2020.

The lawsuit used italics to heighten ICE’s alleged contradictions.

“On [April 6, 2020], ICE told the Herald that no detained individuals in Florida had tested positive,” the lawsuit continues. “ICE’s statement was false. On April 7, the Herald ran a second story explaining that a detained individual from [one of the centers] had tested positive.”

After the Herald’s report was released, however, “ICE now admits that there are least two detained individuals in Miami who have tested positive for COVID-19,” according to the original petition.

But immigration authorities are said to still be keeping a tight lid on information about Coronavirus infection rates.

“ICE refuses to disclose whether third-party contractors test positive for COVID-19, providing them a ‘loophole’ to reporting the actual number of COVID-19 cases among its employees in detention centers,” the lawsuit said. “Third-party contractors comprise a majority of employees in detention centers.”

The filing also documented a decidedly grotesque and out-dated form of isolation for detained individuals who have tested positive for the virus akin to the leper colonies of the past.

“Each of the three detention centers either has confirmed cases of the virus or has groups of individuals herded together in ‘cohort quarantine’ because they have been exposed,” the filing said. “Rather than mitigate the risk of transmission, these cohort quarantines drastically increase the possibility of transmission, infection, and facility-wide outbreak by grouping together people who have already been exposed to the virus.”

The filing went on at length to explain the epidemiological consensus against new age leprosariums (emphasis in original):

Under CDC Guidelines, which detention centers are required to follow, people exposed to COVID-19 should be put in individual, not group, quarantine: “Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. ”Cohort quarantine “should only be practiced if there are no other available options.” As the CDC explains, “[c]ohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected.”

“Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored.” Additionally, “[f]acilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to en- sure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed.”

“Respondents are defying CDC Guidelines by refusing to do the one thing they could to do comply with those guidelines–releasing individuals during the pandemic,” the filing said. “Instead respondents are affirmatively putting detained people at risk by confining them in close sleeping, eating, and living quarters.”

Contained in the lengthy legal document is a sworn declaration by Assistant Professor of medicine at Weill Cornell Medicine Joseph Shin.

“There is no way for immigration detention facilities to comply with CDC guidelines on social distancing and quarantining unless [ICE and Attorney General William Barr] release detained men and women on a large scale,” Shin warns. “When release from a detained setting is an option and there is lack of testing ability and an inability to employ social distancing, it is my professional opinion that failure to release during the COVID-19 pandemic is a violation of the CDC guidelines and will result in continued and wide-spread infection.”

Again, the lawsuit:

There is currently no way for [the Miami detention centers] to comply with CDC guidelines on social distancing and quarantining. Each facility holds individuals in close proximity. People are less than six feet away from each other when they sleep, eat, and use common areas. It is impossible for [the detained individuals] to protect themselves from infection through social distancing and vigilant hygiene—the only known mitigation measures.

A broad coalition of advocates–including the Legal Aid Service of Broward County and the University of Miami Immigration Law Clinic–are suing under various Fifth Amendment theories alleging that ICE and Barr are violating the immigrant detainees’ constitutional rights. Attorneys for the detained individuals allege a violation of acceptable detention standards, violation of the right to reasonable safety and that the government is putting people directly into a danger zone created by the state.

The lawsuit seeks the “immediate release of [the named immigrant petitioners] and the class they represent” as well as injunctive relief barring ICE from creating the same set of circumstances all over again by barring the agency from “placing new detainees” in the Miami facilities “until COVID-19 no longer poses a threat in Florida.”

Read the full filing here.

[image via Scott Heins/Getty Images]

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