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    Entries in ICE (5)


    New Report Shows How ICE Uses NYC Criminal Justice System to Funnel Immigrants Into Deportation

    This morning the Immigrant Defense Project (IDP), Families for Freedom, and the New York University School of Law Immigrants Right Clinic released a new report entitled "Insecure Communities, Devastated Families: New Data on Immigrant Detention and Deportation Practices in New York City".  The report is based on data obtained from a Freedom of Information Act lawsuit filed by the NYU School of Law Immigrants Rights Clinic to show that Immigration and Customs Enforcement (ICE) uses "the New York City criminal justice system to funnel tens of thousands of immigrants into deportation" according to a joint press release. Seventy-seven percent of persons detained by ICE came in through the New York City criminal justice system.  Ninety-one percent of those detained ended up deported.

    The data, most of which is being publicly released for the first time, highlights the fundamental flaws of programs such as the Criminal Alien Project (CAP) and Secure Communities (S-Comm), which was enforced State-wide last May, as well as of our detention and deportation system as a whole.  Of the 400,000 deportations ICE insists it must carry out in FY 2012, 9%, or almost one in ten deportees, must be from one of the five boroughs of New York City. Secure Communities will likely be a critical tool in helping ICE meet this threshold.  "Secure Communities makes [police] precincts virtual immigration checkpoints" noted Abraham Paulos, Executive Director of Families for Freedom.  Whereas the CAP program identified non-citizens with criminal backgrounds once they arrived at Riker's Island Correctional Facility, S-Comm singles out non-citizens as they are booked, before any criminal proceedings have even been initiated. Once ICE is alerted as to a person's immigration status and initiates deportation proceedings, the person has to fight deportation charges regardless of whether they actually committed a crime.

    From 2005 to 2010, ICE apprehended 34,000 New Yorkers.  Queens had the highest percentage of residents detained by ICE (35%), followed by Brooklyn (29%), the Bronx (19%), Manhattan (14%), and Staten Island (3%).  Of those who remained detained throughout their immigration proceedings, 91% were deported. As a result, at least 13,500 New York City children lost parents to deportation. What is more troublesome is that these numbers reflect the outcome of ICE practices and policies before the mandatory implementation of S-Comm throughout the State.  With its much larger dragnet, immigrant activists fear that S-Comm will transform the New York City criminal justice center into a much bigger conduit to deportation.

    Charlie Acquista, who spoke at a press conference announcing the release of the report, described the heartache he and his two US Citizen siblings endured after their father was detained in deported. "If family values are so important in America," he asked "then why is our government trying to separate us from our loved ones?" Dave Pierre, who has been detained by ICE for over two years, also noted "it's been a huge strain on my family and myself." ICE detainees are often transferred between facilities, some as far away from New York as Texas or Arizona, and are forced to remain imprisoned due to prohibitively high bond amounts, if bonds are set at all. Pierre, for example, was transferred seven times in twenty-five days and was given a bond of $100,000, which his family cannot afford to pay.  His frequent transfers made it hard for find a lawyer who could take on his case, so he spent the first year of his detention unrepresented.

    Common sense dictates that it is far harder to afford a lawyer and successfully fight a deportation case when a non-citizen is detained, often far away from their family and friends, then when they are free.  Yet, during the time period covered by the report (2005 - 2010), the number of New Yorkers detained each year without bond (bail) rose dramatically from 771 in 2006 to 1,921 in 2010.  During that same period, at least 5,410 detainees were parents to US Citizens.  Approximately half of those held without bond had lived in the United States for at least ten years, and 39% had no criminal history.  In addition, according to ICE's recording system, "only 9% of individuals are considered subject to mandatory detention [and therefore ineligible for bond]. Thus, 91% of immigrants are eligible for bond, and yet 80% are detained without any bond setting." The data also shows that, when set, bond amounts are usually prohibitively high.  Seventy-five percent of bonds were $5,000 or more, and of those over a third were set at $10,000 or more. As a result, 55% of those who receive bond are unable to pay it. By comparison, a New Yorker is nineteen times more likely to receive a bond of $1,000 or less in criminal court than in immigration detention, despite New York State Courts being frequently criticized for overly-harsh bail and bond determinations. 

    Transfers to detention facilities outside the New York/New Jersey area also reached an all time high in the years covered by the report.  Over half of all New Yorkers detained by ICE were transferred out of the area.  Of the detained and transferred cases that were resolved during the years covered by the report, 94.5% resulted in deportation (compared with 74% of cases that were granted relief after being released and having their cases remain in New York City).  In total, 6,772 US Citizen children saw their parents transferred (a fifth of all transferred detainees). Forty percent were transferred to facilities in Texas, 11% to facilities in Louisiana, and 8% were transferred to Pennsylvania.  Detention in general and transfers in particular make it difficult for non-citizens to obtain legal representation and fight deportation.  Sixty percent of detained individuals in New York were unrepresented, more than twice the number of un-represented individuals who are not detained.

    The impact of ICE's policies on families and communities is dramatic.  In addition to the trauma suffered by the children who lose at least one parent to detention and deportation, the cost to the State, which must then provide social and welfare services to those left behind, is also high. Moreover, programs such as S-Comm breed mistrust of law enforcement within communities as members become more reluctant to interact with police and to report crime, making us all less safe.  In a city like New York, where immigrant communities make up a large percentage of the population, these repercussions affect every resident.  


    False Promise: The Story of a How a Man Came to Seek Asylum and Became a Criminal Instead

    Delaney Hall, Newark, NJ (photo credit: Camille Mackler)An article in today's LA Times discussed the different treatment of asylum-seekers who apply for asylum immediately upon arriving at a point of entry in the US versus those who apply after having somehow made it into the country. Meanwhile, elsewhere in the immigration universe, Immigration and Customs Enforcement (ICE) proudly announced the arrest of 3,100 criminal aliens through its new, focused enforcement priorities (though some, such as Crystal Williams, the Executive Director of the American Immigration Lawyer's Association (AILA) questioned the accuracy of that announcement). Recently, these two stories intersected for me in a sad reminder of our current immigration realities.

    Late last fall I was retained to represent a client detained at Delaney Hall in New Jersey. Eric* was from a country that has seen a recent rise in Islamic fundamentalism. As a recently converted yet devout Christian, Eric began fearing for his safety about a year ago, when violence against Christians began seeing a significant increase. He sought to acquire a visa to Europe, where several of his family members lived. However, his application was denied. Desperate to leave his home country, he hired a broker to help him apply for a US visa. The broker included all of Eric's biographic information on the visa application but changed some details about his job. Eric knew this was wrong, but told himself he could explain this to authorities once he arrived in America, which he thought held the promise of safety and freedom.

    When Eric arrived at JFK International Airport in New York City, he was taken into a room for secondary inspection by Customs and Border Protection (CBP) agents. Scared and confused by the harsh questions and agressive tactics, he stammered out his answers and barely got out his purpose for traveling to the US. Eric was allowed into the US, but not to the safety and freedom he had hoped for. Instead, he was brought to a Federal holding facility in Brooklyn, New York and prosecuted for visa fraud. His State-appointed attorney advised him to plead guilty to the Federal charge, indicating that it would not be a statutory bar to asylum, or face a prolonged detention while waiting for trial. So Eric plead guilty, was sentenced to three months confinement, and upon his release was transferred to the custody of ICE.

    In removal proceedings before a an Immigration Judge, Eric was charged as being removable from the United States based in part on his criminal record. Because he was now a criminal alien, ICE also refused his parole request, meaning Eric had to stay in detention while his case played out before the Immigration Court. ICE did keep him in Delaney Hall, however, one of its newer, "reformed" detention facilities ostensibly meant for aliens that typically do not pose a threat to society. Before the Immigration Judge, Eric was finally able to ask for asylum.

    That request for asylum was denied last month - not because Eric did not meet his burden of proving he had a credible fear of persecution based on his religious beliefs, but because he had a criminal record. For this reason, the Immigration Judge did not believe Eric was entitled to a favorable exercise of her discretion. The Judge was also unpersuaded by my argument that the criminal conviction must be looked at in its context: that the lie on Eric's visa application was made because of the very fear that led him to flee to the United States and ask for asylum in the first place.

    Two weeks ago, I sat in a small visitation room at Delaney Hall, trying to persuade Eric to appeal the judge's decision. With tears in his eyes, he looked up at me and said: "I'd never been in handcuffs before I came to this country." He came here looking for help and for safety, and instead was treated like a criminal.

    I do not disagree with the Obama Administration's decision to deport those who truly cause harm to our society and our country. I do not think many immigrant advocates would. However, the implementation of these policies, along with the pervasive "culture of no" that seems to rule the ICE field offices, if not the headquarters in Washington, DC, have all too often led to the baby being thrown out with the bathwater and then some. Eric's case is the perfect example. He is not a danger to our society. He had never committed a crime before he lied on his visa application, and his crime was one many of us would probably have also perpetrated if faced with the same situation. Eric could be an asset to our country if given the chance. Instead, he is entering his ninth month in detention. He has yet to see any of the United States.

    At the end of our conversation two weeks ago, I asked Eric for his decision regarding his appeal. He told me he has had a lot of time to read in detention, and he found a quote that pleased him recently: "A winner never quits" he told me. And so, to be continued...

    *Name changed to protect the identity of the person.


    Time For a Common Sense Approach to Immigration Consequences of Criminal Activity

    On Tuesday, the Twitterverse lit up with pleas from DREAMers and their supporters to "save Yanelli". They implored Immigration and Customs Enforcement (ICE) officials to show compassion towards the young woman, brought to the US at age 13, as she faced imminent deportation. By 5 PM, however, the news began to spread that Yanelli had been deported to Mexico. ICE's justification was that Yanelli was a criminal alien and fit one of their self-described enforcement priorities. Her supporters argued that this was a case that must be taken in context, and that her DUI arrest (her blood alcohol was 0.9, the state's limit 0.8) was a result of the same mental troubles that led her to twice attempt suicide while in ICE custody. Yanelli, depressed at the thought of being torn away from the people she loves and the only country she knows well enough to call home, needed help, activists argued, not deportation.

    Last Fall, Ruddy Mirabal was deported to the Dominican Republic as a “criminal alien”.  A year before, Ruddy was with his cousin who asked him to hold a brown paper bag Ruddy assumed contained leftover food.  They went to meet one of the cousin’s friends, who revealed himself to be an undercover police officer after the cousin tried to deal him drugs.  The bag in Ruddy’s hands, it turned out, contained not pizza, but cocaine.  Ruddy, who entered the US at 10 years old and had never been in trouble with the police before, was frightened at suddenly finding himself in jail amongst criminals.  He pled guilty to the charge his attorney told him would guaranty the least amount of jail time. He was told there “could” be “some” immigration consequences, but figured he would address them once released. While in jail, Ruddy not only completed his studies and received a high school diploma (not a GED), but he also pioneered a program that will now allow other incarcerated youths to do the same.  Sadly, he had plead guilty to manufacturing of cocaine, an aggravated felony under the Immigration and Nationality Act (INA), and ICE immediately began removal proceedings against him.  With no relief available to an aggravated felon, Ruddy was deported to a country far from his parents, his siblings, and his extended family.

    These stories are only two examples emblematic of a far larger problem.  The Obama Administration’s determination to deport “criminal aliens” has become a focal point of the President’s new immigration strategy, one aimed at showing that our current system is not without compassion or common sense. However, a closer look at what makes a person a "criminal alien" shows that this rhetoric, though powerful, is flawed once enacted. Recent reports have shown that many of the so-called “criminal aliens” detained and deported by ICE have either no or very minor convictions. However even those aliens convicted of more serious offenses deserve a more nuanced approach than currently allowed by law.

    Deportation is a traumatic, life-changing event, not only for the deportee but also for their family, friends, and community.  When deportation becomes part of the punishment for criminal activity, as it does when it becomes one consequence of a conviction, it is imperative that, as the old saying goes, the punishment fit the crime. 

    Immigration consequences of criminal activity are notoriously harsh, and often drastically overshadow the criminal conduct that gave rise to them in the first place.   For instance, anyone convicted of an aggravated felony, as defined by the INA, with very limited exceptions is removable or inadmissible to the United States.  There is no waiver of this section of law, and the bar is permanent.  In other words, someone convicted of an aggravated felony cannot remain in the United States, even to seek asylum. The classes of crimes that constitute aggravated felonies, however, were arbitrarily imposed by Congress and do not reflect what state or Federal laws label as felonies. Many other convictions, including for minor drug offenses or victim-less crimes, require waivers to overcome grounds of inadmissability or deportablity, even if the convictions occured long ago.  

    More troubling is the fact that an Immigration Judge is not allowed to look “behind the conviction,” at the conduct that gave rise to the conviction in the first place. A criminal conviction might not be an accurate barometer of the actual criminal behavior. The criminal system has its own set of rules to adjudicate guilt and come to plea arrangements so that the ultimate sentence is not always an accurate reflection of the criminal act and the accused’s level of culpability. Rather, a guilty plea is usually the result of a balancing act between the State’s and the accused’s interests.  Therefore, criminal convictions often time are not proportional to the actual act or circumstances that led to arrest.  The immigration consequences, however, are always based on the conviction itself.  This leads to immigrants facing immigration penalties much harsher than their original conduct warranted.

    In both Yanelli and Ruddy’s cases, ICE was approached with requests for Deferred Enforcement – a form of discretion whereby ICE would agree to not immediately enforce the removal orders.  In both cases, ICE responded with a standard line, stating that the removal of criminal aliens is a priority, and that therefore a favorable exercise of discretion was not warranted in these cases.  In both cases, ICE refused to look behind the language of the convictions, including, in Ruddy’s case, at a letter written by his cousin stating Ruddy’s innocence.

    Our immigration laws are overly harsh and inflexible when it comes to the consequences of criminal activity.  The result, is that someone, such as Ruddy, can be deported even as they pose no harm to the United States, and might, in fact, be an asset to our communities. If the Obama administration is truly committed to employing a more common-sense approach to immigration enforcement, then it must direct ICE agents to look at all aspects of a case before detaining and removing a person.  And hopefully, in time, Congress will change our immigration laws to reflect this as well.


    DHS Issues Guidance, Begins Review of Immigration Court Backlog

    The Department of Homeland Security (DHS) announced today that it would begin reviewing the 300,000 cases currently backlogged in the country's immigration courts, and issued guidance to local offices on how to do so.  The decision comes three months after DHS first announced the policy. 

    How will cases be reviewed?

    Each Office of the Chief Counsel (OCC), who represents DHS before the Immigration Courts, has been instructed to draft and implement Standard Operating Procedures (SOP) and to begin reviewing cases that fall within one of three categories: (1) Cases where Notices to Appear (NTA) have not yet been filed with the Executive Office for Immigration Review (EOIR); (2) all cases on master calendar dockets; and (3) all non-detained cases with merits hearings scheduled up to seven months from today. The review will continue until January 13, 2012, when the outcome to date will be assessed and changes made, as necessary. The criteria for exercising prosecutorial decision remain those outlined in the June 17, 2011 John Morton memo: "Guidance to ICE Attorneys Reviewing CBP, USCIS, and ICE Cases Pending Before the Executive Office for Immigration Review". 

    For cases where DHS determines that an exercise of prosecutorial discretion is warranted, the attorneys may either submit a joint motion to the Court requesting administrative closure, or make the motion in court.  The memo also notes that persons in removal proceedings may choose to decline prosecutorial discretion, which would make sense for persons with valid relief applications. In addition to this nationwide effort, a pilot program with a focused review will run in Baltimore and Denver from December 4, 2011 to January 13, 2012. 

    What kind of cases will qualify for prosecutorial discretion

    Further guidance to ICE attorneys was also issued today, detailing which kind of cases are considered enforcement priorities, and which might  qualify for an exercise of prosecutorial discretion.  Cases that are enforcement priorities include persons with criminal records or who have prior immigration violations.  Cases that will be considered for a favorable exercise of discretion include, among others, those where the person has served in the Coast Guard of Armed Forces, who came to the United States as a child, who has completed or is in the process of completing a higher education degree, and/or who has significant ties and contributions to the United States, including citizen relatives.  Many persons who would otherwise qualify for the DREAM Act, were it ever to pass, seem to fall within the guidelines of who would be considered for discretion.

    What happens to cases that benefit from Prosecutorial Discretion?

    Today's memos suggest that cases deemed low priority will be administratively closed and that the beneficiaries will be able to apply for work permits.  Administrative closure simply means that a case will be taken off the active docket, but can be resumed at any time at the request of either side. It does not mean that cases are terminated, though in certain circumstances, that could be an option as well. Prosecutorial discretion does not confer any status on anyone, does not allow for travel outside the United States, and does not provide a path to a green card of citizenship.


    That being said, persons with cases pending before immigration courts, or undocumented persons looking for a way to legalize their status, should be very wary of claims by some people that this is the solution.  As many organizations, including the American Immigration Lawyer's Association, previously announced, this new policy is not an amnesty, will not confer status, and there is no guaranty that someone will have their case classified as "low priority." In other words, this new policy is not a guarantied way to obtain a work permit or a green card. 

    Although it remains to be seen how this will affect the immigration landscape, and how closely these new policies will be followed by local offices, today's announcements at least show that the Obama Administration is serious about following through on some of its earlier statements.  It is welcome news, particularly as the White House continues to be criticized for its apparent complete reversal on many of President Obama's immigration-related campaign promises, and as recently-released statistics show a record number of deportations for 2011.


    Immigration Detention: Still As Bad As You Thought

    In a letter obtained earlier this week by the Boston Globe, Suffolk County Sheriff Andrea Cabral has ordered Immigration and Customs Enforcement (ICE) to remove all immigration-related detainees held at it's facility in Roxbury, MA by early October.  The facility, which can house up to 300 immigrant detainees, is one of the largest in the Boston Area and is conveniently, for ICE, located in close proximity to the Immigration Court and Logan Airport.

    The Sheriff's Office's letter allegedly accuses ICE of a “staggering lack of communication and respect,’’ including withholding federal audits results, and a refusal to share the details of detainee complaints.  Last year, a 49-year old native of the Dominican Republic, Pedro Tavarez, died while in custody at the Suffolk County House of Corrections.  A report later suggested the jail staff waited too long to provide medical care. 

    The letter became public on the same day an American Civil Liberties Union (ACLU) announced that an employee at the T. Don Hutto immigration detention facility in Taylor, TX had been charged with sexually abusing at least five female inmates as he was transporting them to the airport after they had posted bond. The officially renamed T. Don Hutto Residential Center, which holds only women today, has long been the center of criticism by opponents of the immigration detention system.  Vanita Gupta, Deputy Legal Director for the ACLU stated that "The sexual abuse of numerous immigration detainees at Hutto underscores the systemic failures that continue to plague our nation's broken immigration detention system."

    In March, 2009, Amnesty International - USA released a report labeling the US immigration detention system as "broken and unnecessarily costly."  The report highlights how detainees, many of them asylum seekers fleeing persecution, are routinely mis-treated, abused, and forced into abandoning potentially successful immigration applications. This week's news shows that, despite lengthy rhetoric, the current administration's failure to institute significant change in detention policies results in immigrants continuing to be treated inhumanely, and at much too high a cost.