"Detention roulette" at immigration court
This week, federal judges in New York have laid down the gauntlet on a practice that inspired regular protests in lower Manhattan.
ICE officers detaining immigrants showing up to court hearings has inspired protest, litigation and political action.
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For months, immigrants dutifully showing up to court for their routine scheduled hearings in New York have risked arrest and harrowing detention.
The practice has made the Jacob K. Javits Federal Building at 26 Federal Plaza a flashpoint for public protest, including one that led to the widely publicized arrest of New York’s comptroller Brad Lander. But now, federal judges appear to be lowering the boom on a practice described by one as a “game of detention roulette.”
In back-to-back rulings this week, federal judges in New York clamped down on the government’s treatment of immigrants in that facility.
“Unconstitutional conditions of confinement”
On Tuesday, U.S. District Judge Lewis Kaplan ordered the government to clean up the holding facility amid reports of overcrowding, freezing temperatures, the smell of sewage, dehumanizing treatment by the guards and inadequate nutrition.
The Southern District of New York’s Civil Division chief Jeffrey Oestreicher largely didn’t dispute the conditions at a hearing, arguing only that the lockup was designed for short-term detentions.
Bristling at that rationale, Kaplan said: “Doesn't your argument, to the extent it relies on the fact that the particular facility was intended for short-term use, boil down to saying that unconstitutional conditions of confinement are okay as long as they don't go on too long?”
Issuing a sweeping order, Kaplan laid out the minimum standards the government must provide: adequate space, clean bedding, medical care, access to hygiene products, more food and water, and phones to call their lawyers. A separate section of his order outlines the standards for confidential attorney-client communications. Immigrants must be notified of their rights in English and Spanish.
On Thursday, U.S. District Judge Dale Ho — a former lawyer for the American Civil Liberties Union — issued a ruling excoriating the government’s treatment of Carlos Javier Lopez Benitez, an asylum-seeker from Paraguay with no criminal record in any country.
For more than two years living in the United States, Lopez Benitez worked in construction and resided with his two U.S.-citizen sisters in Flushing before he showed up to his first scheduled immigration hearing. His violent arrest, caught on tape, received national attention in The New York Times, which published a video of a masked officer shoving his sister to the ground.
Judge Ho said that the government “detained him in a room without a bed or access to a shower for three days, and then shipped him halfway across the country,” until the judge ordered his return late last month.
“Far from alone”
Lopez Benitez has now been released in accordance with the court’s order, but the judge used his written ruling to comment on how his case reflects nationwide trends.
“Mr. Lopez Benitez appears to be far from alone,” Ho wrote in a 31-page ruling. “His counsel asserts that his treatment is part of a ‘nationwide campaign,’ as set forth in an ICE internal memo that has been described in various media reports, which suggests that millions could be swept up in the same way.”
Ho noted that the government “cannot confirm or deny the existence of such a new policy.”
“Yet, they appear to maintain that they must categorically detain all undocumented immigrants who they believe have entered the United States unlawfully—no matter how long they have been residing in the country since,” Ho wrote, adding that the government appears to be “detaining some arbitrary portion” of immigrants at regularly-scheduled immigration court proceedings.
“But treating attendance in immigration court as a game of detention roulette is not consistent with the constitutional guarantee of due process,” Ho wrote.
Amid nationwide protests, an activist group named Extinction Rebellion NYC recently participated in a “Rage Against the Regime” demonstration in front of 26 Federal Plaza in opposition to that practice. In a video provided by the group, one activist, dressed up as Lady Liberty, can be seen with her hands apparently restrained behind her back in plastic handcuffs, being led into the back of a police van.
“What is being done to immigrants who have committed no crimes is only a beginning,” the group’s spokesperson Nate Smith said in a statement.
Immigration and Customs Enforcement did not immediately respond to an email requesting comment.
Adam, thank you for giving us access to understanding how the courts are coming to the aid of both immigrants and our constitution. It gives me a moment to exhale, to breathe, in a political and social environment when catching our breath is increasingly difficult and yet ever so important to regain energy to continue.