As ICE detainee testifies in federal court about COVID-19, unmasked guard is next to him

In an unusual virtual hearing in federal court Wednesday, three immigration detainees gave live, first-hand details of life behind bars during the global COVID-19 pandemic.

Deivys Perez Valladares, a 25-year-old Cuban national, was one of them. It was the first time that U.S. Immigration and Customs Enforcement detainees told their accounts directly to U.S. District Court Judge Marcia G. Cooke, via telephone, as part of an ongoing lawsuit filed in early April seeking the release of South Florida detainees as coronavirus cases continue to climb.

One detail Valladares pointed out: The ICE officer standing next to him as he spoke was not wearing protective gear.

“Yes I am scared” of catching coronavirus, he said. “Like right now, the ICE official who is here with me, he doesn’t have a mask on,” Valladares added in Spanish from the Krome detention center in Miami-Dade, noting that the guards from the afternoon and evening before had not worn masks either.

When his attorney, who was seemingly caught off guard by his statement, asked if the guard was within six feet away from him, Valladares said, “Much less. We’re super close, like two or three feet.”

Valladares, a diabetic Cuban national, had just recounted to the court how he was transferred to and from three different detention centers within a week, and in one instance placed in a cramped “hielera” — Spanish for icebox — for 13 hours with 17 other detainees.

Icebox is the nickname detainees have given to the frigid, cramped holding cells they are placed in prior to a transfer.

“We were one right next to the other because there wasn’t space for everyone,” he said. “Lots of us slept on the floor.”

Valladares’ testimony Wednesday raised more questions about ICE’s transfer practices and coronavirus preventive measures after the judge issued an order last month pressing the agency to minimize the risk of COVID-19 transmission inside Krome, the Broward Transitional Center in Pompano Beach and the Glades detention center in Moore Haven.

His sworn statement was part of immigration attorneys’ closing arguments in the case, two days before Cooke is expected to decide whether or not to issue a preliminary injunction or let the current temporary restraining order expire.

ICE did not refute Valladares’ claims, but told Cooke the agency would look into his transfer history and file a document with the court outlining what happened. The agency noted that U.S. Centers for Disease Control guidelines on how to minimize risk of coronavirus in prisons are “flexible,” which give ICE “discretion.”

Under the preliminary injunction proposed by immigration advocates, Cooke would order ICE to release detainees who have no criminal histories, immediately comply with CDC guidelines, restrict transfers to instances where ICE can show that a “transfer is absolutely essential,” document and provide a reason for why each transfer has to be conducted, as well as document why a detainee is not eligible for release from detention, lawyers explained during their closing arguments.

Dexter Lee, an assistant U.S. attorney with the Department of Justice representing ICE, also addressed the claim that there is enough personal protective equipment at the three centers, saying that detainees are issued masks but that whether or not they wear them is another story.

During cross-examination of Steve Cooper, another detainee who testified Wednesday from the Glades detention center, Lee asked the Jamaican national if he wears his mask at all times.

Cooper said no, “sometimes. But I’m not the only one,” noting that it’s hard to wear a mask when eating or sleeping.

Lee, who argued against the immigration attorneys’ claims that the agency has acted with “deliberate indifference,” said everyone “at the detention center is an adult.”

“Individuals are responsible for maintaining their own health,” he said. “These are adults. They watch TV, they understand this pandemic. And they should — if they are as concerned as they claim to be — wear their masks. There is only so much the government can do. They can encourage them to do so. I don’t think putting somebody in the special housing unit for not wearing their mask would be appropriate; that seems to be a bit extreme.”

Scott Edson, a class action defense attorney with King & Spalding in Washington, D.C., one of the law firms representing 58 named detainees in the case, said: “Mr. Valladares is in a room with an unmasked guard at a hearing where ICE is trying to show that they really are taking this seriously and that they are doing everything they can. There is no evidence by ICE that they are consistently enforcing that everyone wears masks.”

Alejandro Ferrera Borges, a Broward detainee, also testified. The Cuban national told the judge that sometimes the Broward center runs out of the travel-sized shampoo bottles they are given once a week.

“If it runs out we try to ask for more,” Borges said in Spanish. “Sometimes they give, sometimes they don’t. I am given some because I’m friendly with one of the officers.”

According to data filed with the court by ICE, as of Monday about a quarter of roughly 1,200 detainees at the three centers aren’t subject to “mandatory detention” and eligible for release.

“Then why are they being held?” Edson said. “We don’t know. ... ICE’s posture in the entire case has been ‘we don’t have to tell you,’ but more importantly they haven’t told the court.”

Lee told the court that why and how the agency determines whom to transfer is “immune from judicial review.”

“There are other factors that the government can rely upon in its decision to detain somebody. A factor that the individual might be a flight risk, or a threat to the public. … But other factors that [ICE] has been entrusted with relying upon and exercising its discretion to determine whether somebody should remain in detention.”

Though frequently transferring detainees is common practice for ICE, the agency told the court that the moves were accelerated when the lawsuit 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 percent capacity at each facility to allow for social distancing.

During a hearing last week, Lee admitted that ICE is not conducting COVID-19 testing on every detainee who gets transferred from one detention center to another, saying the agency doesn’t have enough tests to do so. Instead ICE is only testing people who have symptoms — a protocol that has resulted in the agency transferring some detainees who are asymptomatic but still carry the virus.

As of Monday, Krome has had 16 detainees test positive for the coronavirus, and Broward has had 20, court records show. Lee noted Wednesday during the hearing that he had just been told that Glades currently 58 detainees with the virus — a number that skyrocketed from two cases on Monday.

Court records filed Monday also note that at least 13 staff members at Krome and six staffers at Glades have tested positive. The entire Glades detention center is under quarantine after having 320 people exposed to COVID-19. Krome has 37 and Broward has 84.