Judge orders vaccination plan for ICE detainees at NY facility

The order is the first of its kind in the country, according to the organization that initiated the case

By Matthew Spina
The Buffalo News

BATAVIA, N.Y. — A judge has ordered the Buffalo Federal Detention Facility in Batavia to come up with a plan to vaccinate its most vulnerable detainees as the number of Covid-19 cases there surges.

The order is the first of its kind in the country, according to the organization that initiated the case, Prisoners Legal Services of New York, and according to the New York Civil Liberties Union, which also has been seeking to protect people held by Immigration and Customs Enforcement from the virus.

As of Thursday, the detention center in Batavia had counted 41 Covid cases spread across three units of the facility, which currently holds 260 people for ICE. The number was revealed during a court hearing that day, said John Peng, Immigrant Justice Corps fellow with Prisoners Legal Services.

Friday morning, the U.S. Attorney's Office sent a letter to the judge in the case saying another two cases had been recorded, bringing the total to 43, Peng said.

Earlier this month, the number of active cases was in the 20s. On its website, ICE acknowledged 39 active cases there as of Wednesday, with 90 known cases, and no deaths, throughout the pandemic.

During the hearing Thursday, U.S. District Court Judge Lawrence J. Vilardo told the facility to develop a plan to make the vaccine available to those who "would otherwise qualify for vaccination" if in the general public. New York has so far opened vaccination to people who, aside from those in certain jobs, are 65 or older or have health conditions that place them at greater risk.

"We are not asking that medically vulnerable civil detainees who fit the criteria for vaccination be allowed to jump the line, we are only asking that they be permitted to join the line," Peng said Friday.

Vilardo also asked parties in the case to submit legal briefs on whether he has authority to order that employees be tested for Covid-19 in a further effort to stem the spread. Vilardo asked that the lawyers return to his courtroom on those matters Thursday.

The hearing was part of a case, filed last March, on behalf of 24 detainees who sought emergency release from the facility because of their age or medical conditions. The number of active novel coronavirus cases there had swelled to 45 by the middle of April 2020.

Vilardo last year ordered special protective measures for several detainees, including single-occupancy cells and the ability to eat meals in those cells and bathe or shower in isolation. The facility, in legal papers, also says it provides masks to detainees. The number of cases there fell back for several months.

With cases now spiking again, Prisoners Legal Services argued in court papers prepared for this week's hearing that the Buffalo Federal Detention Facility should not be allowed to look to state and local officials to eventually vaccinate the detainees.

They "provide no explanation for why they, federal officers in charge of a federal facility, cannot acquire vaccines from the federal government, which has been in charge of distributing vaccines to state governments," Peng wrote. He pointed out that the U.S. Bureau of Prisons has been provided vaccines for inmates in its facilities.

Arguing for ICE, an assistant U.S. attorney wrote in court papers that the 10 months the facility went without a positive case showed that many of its safeguards were effective.

The Centers for Disease Control and Prevention, Assistant U.S. Attorney Adam A. Khalil wrote that three three important ways to slow the spread are to wear a mask, stay 6 feet from others who don't live with you, and avoid crowds.

"Getting a vaccine," he continued, "is not listed."

He then argued that conditions inside the facility are better, with regard to Covid-19 than outside.

"Presently, there are 260 detainees at the BFDF. Each is monitored for symptoms of COVID-19 and has ready access to medical personnel. Infected individuals will be quarantined and tested immediately." Further, he said, they have limited access to people who come into the facility.

"The same cannot be said of regular individuals outside of the BFDF," Khalil wrote. "As this court is surely aware, simply stepping outside one's home risks exposure to individuals who may be infected, refuse to wear a mask, and who may never be identified."


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