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Lawsuits & Litigation

ICE Would Rather Fight 1,200 Lawsuits than a Single Class Action

— May 15, 2020

The prospective class action demands that detained migrants be released to protect them from coronavirus.

Immigration and Customs Enforcement (ICE) would rather fight 1,200 lawsuits than litigate a single class action, which seeks the release of South Florida migrants held amidst the coronavirus crisis.

The Miami Herald reports that the lawsuit has been ongoing since the middle of April. Filed by six immigration law firms on behalf of 58 detainees at three detention centers, the prospective class action seeks a mass release of not only inmates named in the suit, but an estimated 1,150 others.

The detainees, says the Herald, are held, or will be held, at Krome Processing Center in Miami-Dade, the Broward Transitional Center in Pompano Beach, and a Glades County detention center in Moore Haven.

Dexter Lee, a Department of Justice attorney representing ICE, asked the court during a Thursday hearing to not to certify the class action.

“If 1,200 people wanted to file their own lawsuits, they can certainly do so,” Lee said, suggesting that a class action isn’t appropriate when each inmate’s case would have been to individually reviewed. “It may sound harsh, but yes, that’s the method by which these claims would be adjudicated.”

Immigration and Customs Enforcement officer. Image via US-ICE/Flickr. Public domain.

ICE, adds the Herald, has said it is already complying with requests to reduce the number of migrants kept behind bars during the pandemic. But that decision, too, is a consequence of court orders—last month, Miami U.S. District Judge Marcia G. Cooke issued a 14-day temporary restraining order, which called for ICE to reduce its detainee populations at several detention centers to 75 percent of their respective usual capacities.

While Cooke’s order is set to expire Monday morning, ICE maintains that detainees who have already been released from custody have no grounds to participate in legal action against the agency.

But ICE’s argument seems intentionally manipulative. Rather than releasing detainees outright, the agency has simply transferred them out of the three facilities covered by the prospective class action.

“The individual cease to be detained when they depart the detention center,” Lee said. “They lose the standing to complain because they are no longer there.”

But Scott Edson, a class action defense attorney with King and Spalding, said temporary release from ICE facilities doesn’t constitute a total departure from custody.

“Release is not the same as a transfer; they are still very much in ICE custody,” Edson said. “Even if ICE momentarily satisfies” social distancing requirements set by the Centers for Disease Control and Prevention, “it would still moot their case because tomorrow ICE can send [migrants] back to live in squalor.”

ICE also hasn’t provided the courts with information or data relating to its transfer activity during the period of time covered by the lawsuit. The agency has also prevented attorneys from inspecting its facilities.

However, federal magistrate judge Jonathon Goodman—who is overseeing the case—said he would rather see ICE release its data voluntarily than not. Goodman also suggested that the plaintiffs’ attorneys might speak with their clients and recommend a voluntary release of information.

Goodman gave ICE a Monday deadline to decide whether or not it would volunteer to share its records.

“To me, this request sounds reasonable,” Goodman told Lee. “At the end of the day, you might as well have a candid conversation and persuade your clients to voluntarily produce it.”


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