ICE tells federal judge the court has no authority over its detention practices

By Monique O. Madan, The Miami Herald

U.S. immigration officials have told a Miami federal judge that the court has no authority over how the government chooses to detain and release immigration detainees, and that filing twice-weekly accountability reports to the court would be “unduly burdensome.”

Over the weekend, U.S. Immigration and Customs Enforcement filed a response objecting to a recommendation made by Magistrate Judge Jonathan Goodman late Wednesday night. Goodman’s 69-page recommendation — which will be reviewed by U.S. District Judge Marcia G. Cooke this week — says ICE should “substantially” reduce detainee populations at three South Florida detention centers as COVID-19 positive cases continue to climb behind bars.

“The report’s directives as to how ICE is to exercise its detention authority exceeds this court’s jurisdiction to adjudicate cases and controversies,” ICE attorneys said. “There is no basis for this court’s oversight of ICE’s administration of its sound policies.”

Lask week Goodman stopped short of recommending that roughly 1,200 detainees be released from the Krome Processing Center in Miami-Dade and Broward Transitional Center in Pompano Beach and the Glades County detention center in Moore Haven, but said the agency should be required to prove that it is accelerating the release process for non-criminal detainees by submitting twice-weekly reports. Those reports would have to detail the number of detainees who were released, as well as whether they are high-risk, subject to mandatory detention, or have no criminal record or pending criminal charges.

His recommendation also included having a “neutral, court-appointed expert” inspect the three centers and file a number of opinions and reports on whether the agency is following proper protocols.

ICE said that the detainee population at Krome, Broward and Glades is managed by a number of staffers including deportation officers and their assistants, making filing such frequent reports laborious and difficult.

“Decreasing the frequency of reporting would relieve some of the administrative burden imposed on ICE to analyze data, review files, and having its employees enter the workspace, while at the same time producing the information needed by the court,” the agency wrote.

ICE’s objection to Goodman’s recommendation is part of a lawsuit filed by immigration advocates earlier this month which sought the release of about 1,200 detainees inside the three facilities. Goodman said the court does not have the authority to issue such an order.

But the petitioners in the case — lawyers for the University of Miami’s immigration law clinic, the Southern Poverty Law Center, the Rapid Defense Network in New York, Americans for Immigrant Justice, the Legal Aid Service of Broward County, private Miami law firm Prada Urizar and King & Spalding, an international firm based in Washington, D.C. — say Goodman “misunderstood the nature of the lawsuit” and “underestimated the court’s authority” in protecting detainees’ lives, describing his recommendations to ICE as “far too modest.”

The groups told the judge the court does have the authority to order the release of ICE detainees because other federal judges around the country have already done it.

They cited a federal court decision made as recently as Thursday, where the District Court for the Central District of California considered a nearly identical case and ordered ICE to immediately release detained individuals “so that remaining detained individuals could follow CDC guidelines for social distancing.”

“Indeed, federal judges across the country have ordered the urgent release of numerous immigrants because of the pressing health risks created by ICE detention and other types of imprisonment,” the petitioners wrote. “The court should do the same here.”

Earlier this month, the lawsuit prompted the judge to order ICE to disclose how many detainees and staffers have tested positive for the coronavirus. The order came after a Miami Herald story reported that the agency did not consider its third-party contractors ICE “staff,” and that the agency said it had no obligation to include them on its website detailing how many employees at its detention centers nationwide had contracted the virus.

As of Wednesday, ICE reports that only four detainees in Florida have tested positive for the virus and that they are being housed at Krome. Eight staff members at Krome, which is run by Akima Global Services, also tested positive, the agency said in recent court filings.

GEO Group, the contractor that runs the Broward facility, as well as the Glades County Sheriff’s Office, which operates the Glades Detention Center, told the Herald that as of Monday there are no staff, employees or contractors at the centers who are recovering from or have tested positive for COVID-19. Akima did not respond to more than 10 emails from the Miami Herald seeking updated information. ICE has not submitted updated information to the court on Glades and BTC.

On Monday ICE refused to disclose if additional detainees at any of the three facilities have tested positive for COVID-19 or if the centers have any suspected cases, citing “pending litigation.”

ICE says it has tested 425 detainees out of its 32,000 nationwide, meaning that about 86 percent of the detainees with access to a test tested positive, data shows.