MIAMI _ U.S. immigration officials admitted during a federal court hearing Wednesday that they are not conducting COVID-19 testing on every detainee who gets transferred from one detention center to another, saying they don't have enough tests to do so.
Instead, Immigration and Customs Enforcement said it is only testing people who have symptoms _ a protocol that has led the agency to transfer detainees who are asymptomatic but still carry the virus.
"If the individual is actively ill, if the individual has tested positive or showing symptoms, they are not cleared for travel and they will not be transferred until those issues are resolved," said Dexter Lee, an assistant U.S. attorney representing ICE in an ongoing lawsuit seeking to release detainees at three South Florida detention centers. "The problem is that there are individuals who are asymptomatic and they may be positive for coronavirus."
The statements in Miami federal court were part of a virtual court hearing before U.S. District Judge Cooke two days before a temporary restraining order is set to expire. The order told ICE, among other things, to reduce the detainee population at their South Florida detention centers. The judge is expected to decide whether she will extend the order for another seven days.
"So if individuals are asymptomatic, they are not tested?" Cooke asked.
"That is correct, your honor," Lee responded.
The discussion regarding transfers comes about two weeks after the Miami Herald reported that COVID-19 cases at an ICE detention center in Broward County skyrocketed after 33 detainees were transferred there from Miami-Dade; 16 of the 33 ultimately tested positive for the illness hours after arriving at the facility.
The revelation that the agency has knowingly transferred detainees who could possibly have COVID-19, the judge said, left her "perplexed."
"You realize you may be expanding the reach of the virus by transferring asymptomatic carriers, which would mean that you are..." Cooke took a long pause before continuing her thought: "My father's expression would have been 'borrowing from Peter to pay Paul.'"
She added: "Meaning that you are merely moving people from one side of the ledger to the other and never really doing what the purpose was (of my order), which is to lower the population, limit the risk and encourage social distancing, along with other things. By keeping spreading this around, ICE is just basically going through _ as the petitioners say _ 'a shell game' of detainees."
Though ICE says it tests people only if they develop coronavirus symptoms, the Herald has interviewed dozens of detainees over the last three months at the three facilities who said they have been transferred despite having fevers, body aches and pains, coughs and difficulty breathing.
It's unclear why the detainees transferred from Krome to BTC were tested when arriving at the facility if they initially passed ICE's medical clearance at Krome and were asymptomatic.
"There has been a limitation in the amount of tests that are available. The capacity has been a problem from the inception of the coronavirus epidemic in the United States and it continues to be so. That problem is the same within the walls of a detention facility as it is on the outside," Lee responded, adding that "ideally if we had the capacity to do so, we would test everybody before transfers were done to make sure that they were not infected, but that capacity does not exist."
Wednesday's hearing was the third to be held in the case seeking to release detainees who were, are, or will be held at the Krome Processing Center in Miami-Dade, the Broward Transitional Center in Pompano Beach and the Glades County detention center in Moore Haven since the suit was filed by six national immigration law firms on April 13.
Though frequently transferring detainees is common practice for ICE, the agency told the court that the moves were sped up when the litigation was filed to bring populations down, per Cooke's order. At the time, the judge cited conditions inside the detention centers that she said amounted to "cruel and unusual punishment," as well as constitutional violations. She ordered ICE to lower detainee populations to 75% capacity at each facility to allow for social distancing.
As a result, ICE complied with the order by moving detainees out of the court's jurisdiction to centers in North Florida, Georgia, New Mexico, Louisiana, Texas and Arizona, among others, the agency said Wednesday.
While lawyers representing immigration detainees have called the practice a "loophole," Cooke initially said that ICE could transfer detainees to other centers to bring South Florida populations down.
But now, the subject of transfers has led Cooke to revisit the topic as cases continue to climb at Krome, BTC and Glades.
As of Wednesday, Broward's 19 detainee cases exceeded the count of confirmed positive cases at the Krome detention center in Miami-Dade, which has slowly climbed to 13 over the last two months, according to the most recently available data.
Though ICE's data doesn't reflect Glades having any confirmed cases, ICE documents in a separate but similar lawsuit filed in Florida's Middle District show that 336 detainees _ or 99.4% of immigration detainees at the facility _ have been exposed to the coronavirus after two employees tested positive.
In a sworn statement, ICE officials say zero have tested positive for the virus, but didn't say if any tests have been administered.
"There are 336 detainees who are cohorted (grouped together) as a precautionary measure, per the established protocol," ICE said. "These detainees are medically assessed twice a day. All detainees remain" without fever.
During Wednesday's hearing, Cooke also briefly brought up a topic that is slated to be discussed in the coming weeks: whether the ongoing litigation should be reclassified as a class-action lawsuit, and whether any of the 1,200-plus detainees who were once held at any of the three detention centers since the lawsuit was filed should be given protections, even if they've since been transferred elsewhere.
ICE's stance is that the cases of transferred detainees are "moot" because "individuals who are no longer detained at any of those three locations, because they've been transferred, can no longer have standing to complain."
The agency's position led the judge to ask ICE to respond to what she hopes is a "hypothetical" scenario.
"Let's say that tomorrow _ and I hope I'm not giving anybody any ideas here _ (ICE) decided 'we're sending everybody to Louisiana, Georgia,' wherever. And Friday morning, I get a report saying: 'Judge, there are no individual detainees at any of the detention centers that are the subject of this lawsuit, therefore there is not only any need for an extension, there is no need for even a TRO and we would request that the case would be dissolved.' "
A brief silence followed.
Lee, the attorney representing ICE, responded: "Well, your honor ... if they wanted to ... it could be that they transfer individuals to other locations that they deemed appropriate."
