As the frigid March afternoon wore on, more than a hundred people gathered in downtown Foley Square in front of the Manhattan courthouse. The broad alliance of public defenders, union members and immigrant advocates took to the streets demanding due process for New York’s undocumented communities. Since federal immigration agents began using the courts as places of ambush, the legal system represents entrapment more than it does the possibility of justice for the undocumented.
Spurred by the Trump administration’s anti-immigrant rhetoric and a specious lack of oversight, Immigration and Customs Enforcement (ICE) has made a target of immigrant communities, detaining individuals inside their homes, parents picking up children from school and, yes, at regular court appearances.
Fifty-two arrests have been made in New York State so far this year, the majority in the city. Only hours before the protest on Monday, March 15, ICE apprehended two individuals in the Manhattan criminal court — one a Legal Aid Society client, the other a client of New York County Defender Services.
The legal system represents entrapment more than it does the possibility of justice for the undocumented
Marta Velez, an attorney working in the five boroughs as well as Long Island and upstate New York, says public defenders like herself are the vanguard for defending immigrants in courtrooms. As such, Velez and her colleagues were prompted to take action once ICE began targeting their clients. But for Velez and fellow attorneys marching in the cold with chants of “immigrants are welcome here,” the solidarity goes beyond their duty as legal counsel.
“We have a responsibility to not only do our part as lawyers but also do our part as members of civil society,” Velez told The Indypendent. “We’re there, we see what’s going on, we’re on the front lines, we’re hearing people’s stories firsthand.”
When ICE detains an individual for an alleged violation of immigration law, the arrestee is placed into the already backlogged court system, where they often languish in jail for an unspecified amount of time due to a recent U.S. Supreme Court decision which prohibits bond hearings in immigration-related cases. According to a report released this month by the Prison Policy Initiative, a non-profit that researches the prison industrial complex, there are presently some 34,000 ICE detainees in federal and private detention facilities, as well as local jails under contract with ICE.
This is no accident. Countless police departments from upstate New York to South Florida take advantage of the 1965 Immigration and Nationality Act, which incentivizes collusion with ICE. The law authorizes ICE to deputize state and local law enforcement as immigration officers in an exchange that nets money and resources for police departments. At its height, memorandums of agreement with police departments nationwide numbered more than seventy. Following a series of investigations revealing rampant abuse and improper training, the program was scaled back during the Obama years, but the Trump administration is determined rev it up again.
One of many sanctuary cities, New York City police do not work with ICE but that hasn’t stopped agents from scrolling court databases for the undocumented, stoking fear in immigrant communities.
Nathalie Lebrón of New York’s Violence Intervention Program (VIP), a 24-hour, bilingual domestic abuse hotline, said there has been a marked decrease in calls from undocumented immigrants in recent months.
“A lot of our clients encounter and experience domestic violence and some of them are undocumented,” Lebrón told The Indy. “They go to the courts to try to get restraining orders,” but now, because of ICE, “they’re afraid to go.”
“Losing access to justice through the courts is fundamental,” added Cecilia Gastón, VIP’s executive director. “Most of the remedies that were designed or came out in the Violence Against Women Act require connection to the criminal justice system. And now, we have to go through ICE to get to the courts. Our women are not going.”
‘You see a lot of what seems like improvising on the part of immigration authorities.’
Despite the bitter wind on March 15, demonstrators wound downtown to Chief Judge Janet DiFiore’s office near Battery Park, demanding she bar ICE from New York courtrooms. By permitting ICE agents to detain individuals in the halls of courtrooms, legal aid attorneys say DiFiore is stripping immigrants of their constitutionally-protected right to due process. The U.S. Constitution guarantees that once an individual is accused of a crime — regardless of immigration status — the legal concept of notice activates. This ensures that the accused know what the allegations are and allows them time to prepare a defense.
A January policy directive issued by ICE included a new stipulation that agents restrain from arresting undocumented family members accompanying an individual to court or who are serving as witnesses.
Lucian Chalfen of the New York Office of Court Administration (OCA) credited his office’s advocacy for the concession, telling The Indy via email that OCA will “continue to request that [ICE] treat all courthouses as sensitive locations” and “ensure that any activity by outside law enforcement agencies does not cause disruption or compromise court operations.”
Yet undocumented plaintiffs still have a target on their back and even the family-member exemption contains a caveat. ICE can detain non-plaintiffs under “special circumstances” where “the individual poses a threat to public safety or interferes with ICE’s enforcement actions.”
Immigration agents are granted the discretion to determine what constitutes a threat or interference on a case-by-case basis.
ICE is “not functioning from a place of a studied policy, a structured policy,” said public defender Marta Velez. “You see a lot of what seems like improvising on the part of immigration authorities.”
As lawyers tasked with representing undocumented individuals in court, it is the job of Velez and her colleagues to understand ICE policy. But with frequent changes and contradictions on the agency’s part, they find the task increasingly difficult.
“We’re always feeling a little bit like we’re just trying to catch up, trying to come up with different ways to counter what could be very detrimental to the immigration system as a whole,” Velez said. “They’re not just things that will affect the way immigration law is applied today but in the future.”
Emailed a detailed list of questions by The Indy, Judge DiFiore responded with two words: “Thank you.”
Photo: Immigrants and public defenders rally to remove ICE from New York courthouses, March 15. Credit: Jesse Rubin.