Judge abruptly reverses order to have fact-finder investigate South Florida ICE jails

©Miami Herald

A letter written by ICE detainee Rodney London. - Handout/Miami Herald/TNS

MIAMI — Just hours after appointing an independent fact-finder to investigate possible “inhumane conditions, deliberate indifference and cruel and unusual punishment” at three South Florida immigration detention centers, a Miami federal judge abruptly reversed her order Monday without explanation.

In an eight-page scathing order filed earlier in the day, U.S. District Court Judge Marcia G. Cooke assigned an investigator to determine whether or not U.S. Immigration and Customs Enforcement officials have violated her previous court orders aimed at preventing coronavirus cases behind bars.

However, hours after naming Michael B. Chavies — a longtime Miami trial lawyer, former Miami-Dade circuit judge and partner at Akerman LLP in Miami — to inspect and investigate the Krome Processing Center in Miami-Dade, the Broward Transitional Center in Pompano Beach and the Glades Detention Center in Moore Haven, Cooke undid her order.

It’s unclear why Cooke reversed her order, but according to Akerman’s own website, the law firm has done white-collar work, defense work and regulatory litigation involving federal agencies such as the Department of Homeland Security — which oversees ICE — among 15 other federal agencies. It’s unknown if the judge will issue a revised order.

“A continued failure to provide detainees with bare minimum necessities and supplies to survive the pandemic is evidence of deliberate indifference to medical needs, tantamount to the infliction of cruel and unusual punishment because it increases the risk of exposure to a lethal and highly contagious disease,” Cooke said in her original order.

She added: “The Eighth Amendment does not mandate comfortable prisons, but neither does it permit inhumane ones … Accordingly, the Court finds it appropriate to appoint a special master … to assess whether ICE is committing an ongoing violation of the detainees’ constitutional rights.”

In her initial order — which is part of an ongoing lawsuit seeking the release of about 1,200 U.S. Immigration and Customs Enforcement detainees — Cooke chronicled how Chavies would have the authority to request any records, physically inspect the three facilities and take photos and videos of the conditions inside. Cooke said Chavies’ findings will be filed under seal, until they are redacted and filed publicly.

Chavies, who did not respond to emails and voice messages from the Miami Herald on Monday, specializes in civil litigation, appellate law and criminal defense. He also serves on the firm’s diversity and inclusion committee. In her order, Cooke said he would be paid $650 an hour until the order expires Aug. 1. The cost was to be split equally between ICE and the detainees’ lawyers.

Cooke’s designation of a “special master” was in response to a recent motion filed by immigration lawyers accusing ICE of violating the courts’ April 2020 order by: co-mingling COVID-19-positive detainees with individuals who have not been confirmed with the disease, failing to provide cleaning supplies and masks to detainees and not educating detainees about the pandemic. The detainees and their attorneys also accuse the agency of not promoting or enforcing social distancing within the detention centers.

Cooke indicated at a June 25 hearing that she was considering having an independent fact-finder gather evidence, after some detainees gave live testimony via telephone. She also noted that the court had received almost 200 pages of handwritten notes by detainees behind bars, personally addressed to the judge.

Immigration lawyers’ “voluminous sworn declarations and credible live testimony support these allegations, which also assert that ICE continues to transfer detainees without first confirming their COVID-19 status or providing new masks before commencing transfer,” Cooke said. “In balancing (the) allegations with ICE’s submissions, each of (the) allegations, if true, would be in direct contravention of the preliminary injunction order.”

“Unfortunately, since this is an ongoing matter, we must decline making a comment at this time,” said Marlene Rodriguez, special counsel to the U.S. attorney’s office in the Southern District of Florida, which is representing ICE.

The six national immigration law firms that filed the lawsuit — 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, and Washington, D.C.-based law firm King & Spalding — told the Herald they were aware of the judge’s reversal and that they are waiting for more details on the case, which is scheduled to go to trial in January 2021.

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©2020 Miami Herald

A snapshot of a statement to a Miami federal judge signed by about 100 detainees on April 16, 2020. - Handout/Miami Herald/TNS
Educational signage posted inside a Glades detention center restroom. - Handout/Miami Herald/TNS
Foreign nationals at the Krome detention center, where those with criminal records and deportation orders are often held, in Miami in September 2015. COVID-19 is running through the center. - Jose A. Iglesias/Miami Herald/TNS