MIAMI — A Miami federal judge has agreed to allow U.S. immigration officials to transfer detainees to other detention centers, rather than release them, in order to decrease the populations at three South Florida facilities.
The decision is a major defeat for national immigration advocates who had asked the judge last week to clarify her earlier order demanding that U.S. Immigration and Customs Enforcement report how the agency plans to substantially cut populations. In her scathing order, U.S. District Judge Marcia G. Cooke noted that the agency had to relieve crowding that amounts to “cruel and unusual punishment” during the coronavirus pandemic.
That’s when lawyers on the case scrambled to try to close what they saw as a major loophole — that ICE, rather than releasing detainees, would simply move them to other detention centers to relieve crowding and allow for social distancing.
The judge agreed over the weekend that transfers are fine.
“The Court further clarifies its April 30, 2020, order to permit ICE to transfer detainees from the three facilities at issue,” Cooke said. “However, ICE may only transfer detainees after first evaluating each detainee and making a determination as to the detainees’ eligibility for release.”
As a result, at least 200 detainees have been taken from the Krome Processing Center in Miami-Dade, the Broward Transitional Center in Pompano Beach and the Glades County detention center in Moore Haven and sent to the Baker County Detention Center in North Florida, the Folkston ICE Processing Center in Georgia, and Pine Prairie ICE Processing Centers in Louisiana, among others.
Though ICE admits in court records that transfers were accelerated over the weekend to bring populations down, similar transfers had already taken place in the weeks after the lawsuit was filed on April 13. The Miami Herald has reported on dozens of ICE transfers that bused detainees in large groups from the three South Florida facilities.
Though the federal judge said ICE is required to evaluate each detainee for release before transferring the person elsewhere, the order does not specify how exactly ICE will document such considerations and whether it has to present it to the court. The agency’s most recent court filings did not disclose how many people it has released compared to how many have been transferred, nor how many people it has granted or denied release and on what grounds.
The Department of Justice, which is representing ICE in the lawsuit, would not comment citing “pending litigation.”
“What they are not saying is more important than what they are saying,” said Rebecca Sharpless, director of the Immigration Clinic at the University of Miami and a lead attorney on the case. “The court is giving too much credit to ICE to do the right thing here. My fear is that they will not release people and just move them around — a fear that already appears to be well-founded.”
According to ICE protocol, the agency considers release by looking at “immigration history, criminal record, potential threat to public safety, flight risk, and national security concerns, as well as current health status and COVID-19 vulnerability in accordance with CDC guidelines.”
CDC guidelines state that detention facilities should “restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding.”
But for Alejandro Mugaburu, who had underlying conditions and is one of the 58 named plaintiffs in the case, that wasn’t enough to keep him from being sent away, records show.
For two months, the Miami Herald has interviewed and documented Mugaburu’s journey from the Monroe County detention center in Key West on March 7, to the Krome detention center in Southwest Miami-Dade on April 3, to the Glades detention center in Central Florida on April 21 and to the Baker County detention center in North Florida on May 1.
For every transfer, Mugaburu — a wheelchair-bound epileptic with a heart condition and injured leg — was carried on and off the packed bus by three security guards.
“I can’t walk and I’m not a small guy. I’m 6 foot, 2 inches and weigh about 250 pounds,” he said. “If you look at my arms and my sides, they are all bruised from having to be grasped and carried.”
According to his lawyers at Americans for Immigrant Justice, one of the immigration organizations that filed the lawsuit, Mugaburu hasn’t been able to walk since September 2019 after getting hurt while in ICE custody. The agency has yet to disclose why he was transferred to another detention center outside the court’s jurisdiction.
It’s still unclear whether ICE is allowed to transfer petitioners named in the case: “The orders are silent on this,” said Sharpless.
Jessica Schneider, director of AIJ’s detention program, said Mugaburu injured his leg after ICE housed him on a second floor despite being told he suffers from epilepsy.
“Three days had passed without him receiving his epilepsy medication — a medication that he requires daily. As Mr. Mugaburu was about to descend the stairs, he had a seizure. Due to the seizure, he became unconscious and fell halfway down the flight of stairs. After his fall, Mr. Mugaburu remained unconscious for about three hours,” Schneider said.
Since his fall, the 38-year-old Peruvian national, has been in a wheelchair.
“When he finally saw the orthopedic doctor several months after his injury, he was told he needed physical therapy,” Schneider said. “However, about a month and a half later he was finally taken to see a physical therapist, the therapist told him he can’t get physical therapy because he needs surgery or to be reevaluated by another orthopedic doctor,” Schneider said. “He has been repeatedly transferred to various facilities and still not getting the treatment he needs for his leg.”
When Mugaburu arrived at Baker over the weekend he was assigned a top bunk, he said, noting that the detainee on the bottom bunk ultimately offered to trade.
“The guard told me that my ‘wheelchair isn’t going to be much help,’” Mugaburu said, as he and fellow detainees were handed a mop and bleach and told to scrub down their dormitories. Mugaburu was placed in a 12-foot-by-10 cell with three other men, despite having been housed in medical isolation at Glades for less than 14 days because he had COVID-19 symptoms.
“It’s transfers like these that show how ICE may actually be spreading the virus instead of doing what they say they are trying to do, which is contain it,” Ashish Jha, director of Harvard’s Global Health Institute, has said.
According to a former U.S. Department of Homeland Security official, who asked the Herald not to be identified, the “brazen” transfer of people to other detention centers during litigation is “a strategy.”
“There are times when ICE will have to transfer people for logistical and operational reasons,” the former official said. “However, there are times when ICE makes strategic decisions to hold or transfer detainees to facilities outside of certain jurisdictions in order to try to evade the implications of a court case.”
“But it’s up to the judge and what the judge will let them get away with.”
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