Something There Is That Doesn’t Love a Wall

Something There Is That Doesn’t Love a Wall¹

By Mary Margulis-Ohnuma, Policy Counsel, New York City Bar Association

In the nearly two years since the Trump Administration took office, we have witnessed a marked change in our national immigration policies. Executive orders imposing country-specific “travel bans,” statements denouncing “sanctu­ary cities,” rejection of “chain migra­tion,” calls for “No more DACA deal,” warnings to “look over your shoulder,” “zero tolerance,” “caravans,” and continued messaging about “the Wall” along our southern border have defined our current policies and introduced an entire lexicon in the process. And this dramatic policy shift is borne out in the numbers: Nationally, according to the NYC Office of Civil Justice, and Immigra­tion Customs and Enforcement (ICE), the number of immigration arrests rose 30% in fiscal year 2017 as compared to fiscal year 2016, and arrests of people with no criminal histories increased by 146%; and in New York City, immigration arrests rose 39% and arrests of people with no criminal histories increased by 175% in the same time period.

Led by our Immigration & Nationality Law Committee (Victoria Neilson, Chair) and with the help of a wide range of committees with expertise in immigra­tion, family, civil rights, and criminal law (among other areas of practice), the New York City Bar Association has been persistent in its advocacy at the local, state, and national levels to safeguard the integrity of our immigration enforce­ment practices and to uphold constitu­tional rights.

“ZERO TOLERANCE” AND FAMILY SEPARATION

The federal government’s hard-line tactics and “zero tolerance” policy with respect to immigrants at the southern border have led to proposals and prac­tices that increasingly burden immigrants and those who seek to help them. In June 2018, the City Bar wrote to the Department of Homeland Security (DHS) in opposition to proposed regulations that would increase information-sharing between the Department of Health and Human Services’ Office of Refugee Resettlement (ORR)—which is respon­sible for placing unaccompanied minor children apprehended at or near the border in the “least restrictive environ­ment”—and DHS. The regulations would require ORR to share information with DHS regarding the immigration status of a prospective U.S.-based caretaker of such minor children, as well as the immigra­tion status of all household members. Noting the “chilling effect” that such heightened information-gathering and sharing would have on family mem­bers’ ability to come forward to care for children in ORR detention facilities, we urged that ORR’s focus be permitted to remain on ensuring the best interests of children entrusted to its care rather than having ORR become an enforcement arm of DHS. The proposal would undoubtedly result in more unaccompanied children languishing for protracted periods of time in detention facilities, and expose them to increased risks, including the dangers of human trafficking and other threats to their safety.

And as the Trump Administration’s practice of separating immigrant parents from their children at the southern bor­der came to light this summer, the City Bar took action on multiple fronts. We established a page for members and the public, “Family Separations at the Border: How You Can Help,” which includes links to resource pages, articles, and organiza­tions involved with providing legal and other services to detained parents and minors, as well as information about pro bono opportunities with the City Bar Justice Center’s (CBJC) Immigrant Justice Project. We also wrote to then-Attorney General Jeff Sessions and DHS Secre­tary Kirstjen Nielsen, calling on them to rescind their respective Departments’ policies of referring for criminal prosecu­tion anyone entering or attempting to enter the U.S. other than at a designated point of entry (including asylum seekers), and to cease detaining and separating migrant children and families—prac­tices that improperly deny access to asylum and other forms of humanitar­ian protection provided by U.S. law and international law. In addition, we wrote to the U.S. Senate and House Judiciary Committees to urge them to conduct comprehensive hearings regarding the Department of Justice and Department of Homeland Security’s “zero tolerance” policy requiring criminal prosecution of all irregular entrants to the U.S.

And in October 2018, we issued a state­ment opposing proposed changes by DHS to broaden the “public charge” ground of inadmissibility. Although public charge has long been a ground of inadmissibil­ity for non-citizen visa holders entering the U.S. and applicants for adjustment to lawful permanent resident (LPR) status, it has been applied narrowly only to those applicants who are assessed to be “pri­marily dependent” on government cash assistance or long-term institutional care. The proposal would broaden the scope of “public charge” to include any receipt of in-kind benefits, like Medicaid and Supplemental Nutritional Assistance Pro­gram benefits (formerly “Food Stamps”), as a factor against admission to the U.S. or adjustment to LPR status. “No family members should have to choose between life-sustaining benefits and possible family separation,” the statement reads.

We also released a podcast on immigra­tion and the border featuring the City Bar’s Policy Department and the City Bar Justice Center.

JUDICIAL INDEPENDENCE AND COURT INTEGRITY

Another priority for the City Bar is its advocacy for the judicial independence of immigration judges. In a report and subsequent testimony, we opposed the imposition of case completion quotas for immigration judges, stating, “Not only are such quotas a threat to judicial inde­pendence in an area of law where stakes are extremely high, quotas will likely further exacerbate the backlog they are meant to remedy.” Recognizing that immigration judges handle enormous caseloads (often more than 2,000 each), requiring judges to complete 700 cases per year would mean each judge would have to “hear[] testimony and render[] decisions in almost three cases per day, five days per week, 52 weeks per year.” The report describes some of the myriad complexities of immigration cases, includ­ing the need for interpreters, issues with overseas witnesses and evidence, applica­tions pending before other government agencies, respondents suffering from past trauma, and a shortage of legal counsel.

In lieu of quotas, we offer a number of recommendations that would more likely increase efficiency without weakening the due process rights of individuals appearing in immigration court who are asserting a legal right to stay in the country. The City Bar’s recommendations include: (1) making immigration court into an independent Article I court; (2) investing in resources to provide counsel to vulnerable immigrants, which would help clarify and narrow legal issues; (3) improving technology; and (4) instituting pre-trial conferences before scheduling cases for merits hearings.

We also recorded a podcast on immigra­tion courts and due process featuring the Policy Department and the Immigration & Nationality Law Committee.  

COURTHOUSE SAFETY AND ACCESS TO JUSTICE

Since January 2017, ICE has visibly in­creased its presence in public places like courthouses, where federal officials carry out immigration arrests – considered civil, not criminal, arrests – without judicial warrants, and under the theory that do­ing so is safer due to courthouse security measures and the ability to identify tar­gets as they appear in court proceedings. According to lawyers, the heightened threat of being arrested by ICE causes many people to fear going to court, which, in turn, raises significant due process and access-to-justice concerns. Although ICE issued a directive in January 2018 that purports to limit courthouse arrests, and the New York State Office of Court Administration (OCA) issued guide­lines in April 2017 and May 2018 that require, inter alia, that an immigration officer entering a courthouse without a judicial warrant identify himself and his law enforcement purpose to a court officer (who must notify a supervisor, who must notify the appropriate judge) and that bar arrests in courtrooms absent exigent circumstances, the uptick in ICE courthouse arrests continues to have a chilling effect on the willingness of immigrant clients and their families and community members to appear in court.

In July 2018, after extensive dialogue with stakeholders and months of work by over a dozen committees, the City Bar issued a report, “Recommenda­tions Regarding Federal Immigration Enforcement in New York State Court­houses,” addressing this complex issue and offering some solutions. The report recommends that the Chief Judge adopt administrative rules to address the harms caused by heightened immigration enforcement in courthouses, including requiring judicial, not administrative, warrants for civil arrests in New York State courthouses; requiring the presid­ing judicial officer to notify the targets of civil immigration enforcement actions of the presence of ICE agents who intend to detain them; limiting the coopera­tion and assistance of court personnel in civil immigration enforcement actions to those actions required by law; reducing the frequency with which parties need to appear in court; and making available for public review the information obtained and recorded by court personnel with respect to ICE enforcement activities in courthouses.

Whether some or all of these measures will be adopted remains to be seen. Meanwhile, City Bar members across multiple committees continue to research and analyze these issues and convene periodic roundtable discussions to share information and develop collective strat­egies to protect their immigrant clients and the sanctity of the courthouse.

NEW YORK CITY’S RESPONSE TO FEDERAL DETAINER REQUESTS

The City Bar remains committed to its position that New York City may limit the Department of Correction’s (DOC) col­laboration with ICE in holding immigrant New Yorkers under ICE detainers. ICE detainers are “requests”—not man­dates—to local law enforcement agen­cies (LEA) to detain named individuals for up to 48 hours after they would other­wise be released from criminal custody in order to allow ICE the opportunity to take such individuals into custody. New York City and DOC, therefore, are not legally obligated to collaborate with federal immigration detention requests. In fact, courts in other jurisdictions have held that localities that detain individu­als – who otherwise would have been released – pursuant to ICE detainers may be violating the Fourth Amendment. It is the City Bar’s view that cooperation with ICE detainers undermines principles of fairness and due process, erodes com­munity trust, implicates racial profiling, and interferes with public safety and the criminal justice system.

RIGHT TO COUNSEL

Right to counsel in removal proceed­ings remains a priority and we continue to advocate for funding at the federal, state, and local levels, including for the Legal Orientation Program, a highly suc­cessful initiative that provides immigrants with an orientation to immigration court proceedings and to potential avenues for relief. We have likewise supported the City Council’s efforts to fund immigrant representation and urged the City Coun­cil not to “carve out” from Council-fund­ed representation those immigrants with certain criminal convictions. The City’s 2019 budget will fund free legal repre­sentation to low-income immigrants fac­ing deportation, but will continue to rely on private donations to cover immigrants convicted of certain crimes.

In this era of heightened immigration enforcement, the work of protecting in­dividuals’ rights, promoting public safety, and upholding our constitutional prin­ciples seems daunting; but, as lawyers, it behooves us to speak, especially for those who cannot, and especially when fundamental rights are at stake. We need to continue to work vigorously to protect individuals’ rights and the integrity of the immigration court system. Our consti­tutional democracy and our history as a nation of immigrants deserve no less than our best efforts to maintain the highest standards of decency, integrity, and due process with respect to those who come here seeking freedom, safety, and opportunity

¹ From “Mending Wall” by Robert Frost

This article originally appeared in the Fall 2018 44th Street Notes.