A Game of Cat and Mouse With High Stakes: Deportation
August 4, 2017
As published by The New York Times, on August 3, 2017.
There’s a new game afoot.
The federal government’s current emphasis on deporting undocumented immigrants — even those facing low-level charges — has, in effect, turned courthouses in New York State into arenas where practitioners of criminal law face off against enforcers of immigration law.
In New York City, judges, defense lawyers and clients have been on high alert for months, watching to see if immigration enforcement officers, many in plain clothes, are in a courthouse. If a pair of people look suspicious, lawyers from the Bronx Defenders, Brooklyn Defender Services and the Legal Aid Society send an internal email alert. Defendants duck into bathrooms or race to another floor.
When officers for United States Immigration and Customs Enforcement, known as ICE, are thought to be in a courthouse, a sympathetic judge might reschedule a defendant’s appearance, or, in a seemingly perverse move, set bail that could send a defendant to Rikers Island — keeping the person out of ICE’s hands because the jail complex does not turn over undocumented immigrants to the agency.
“I don’t want to be playing the cat and mouse game with federal authorities,” Eric Gonzalez, the acting Brooklyn district attorney, said in an interview.
State policy prohibits ICE officers from making arrests inside courtrooms. They must do their work in a hallway or outside a building. But on Thursday, Mr. Gonzalez and Eric T. Schneiderman, the state attorney general, held a news conference to say that even that was too much and that ICE should treat courthouses as sensitive locations — like hospitals, houses of worship and schools — where it does not make arrests. They said immigration authorities were interfering with the criminal justice system, making witness and defendants afraid to appear in court.
“I am asking ICE to reconsider their policy and treat the courthouse with respect,” Mr. Gonzalez said in the interview.
ICE has said that it goes to courthouses because it is safer than trying to detain someone at home or on the street. Sarah Rodriguez, the agency’s spokeswoman, said that despite the demand by the New York officials, “ICE plans to continue arresting individuals in courthouse environments as necessary, based on operational circumstances.”
Ms. Rodriguez said that those picked up by ICE “often have significant criminal histories.”
ICE officers have made 53 arrests in or around courts in New York State since January, compared to 11 arrests in 2016 and 14 in 2015, according to the Immigrant Defense Project, an advocacy group. Thirty-five of the arrests were made in or around city courthouses, including one on Thursday in Brooklyn.
The state Office of Court Administration said there were 52 instances of ICE officials identifying themselves to court officers; they made 30 arrests, 25 of which occurred in the city. The office did not keep statistics in previous years.
The number of ICE arrests in the five boroughs is higher than other areas in the state because jails in most counties are allowed to hand over prisoners to ICE.
While there are no numbers that suggest either defendants or witnesses are staying away from court, and thus impeding trials, Mr. Gonzalez said his office’s ability to prosecute cases was nonetheless affected: “Witnesses are not willing to come forward and cooperate.”
Mr. Gonzalez added that ICE’s arrests had undermined the trust people have in the justice system.
The Immigrant Defense Project said that, based on reports from lawyers, some of those recently arrested were charged with offenses like driving without a license or disorderly conduct and that one young man facing “minor charges” in juvenile court in Suffolk County had been seized.
Under the Obama administration, undocumented immigrants with those types of arrests or convictions were not a priority for deportation, but President Trump has made clear that all people in the country illegally are targets.
Jessica M. Vaughan, director of policy studies for the Center for Immigration Studies, which favors more controls on immigration, said in an email that the issue was not that ICE is interfering with the criminal justice system, but that New York’s so-called sanctuary policies “are interfering with ICE’s ability to carry out its legitimate and important mission. They are the ones forcing ICE to resort to courtroom arrests.”
The clash over authority was evident recently at the Queens Human Trafficking Intervention Court, where women charged with prostitution are supposed to face restorative, not punitive, justice. Those arrested can take part in counseling sessions in exchange for dismissal of their charges and the sealing of the records. Undocumented immigrants may be eligible for visas as victims.
On June 16, ICE officers went to the court looking for several individuals, including a 29-year-old woman from China who had been charged with unlicensed practice of massage and prostitution; she had overstayed her tourist visa.
Court officers, as per union policy, told Judge Toko Serita that ICE officers were in the hallway near the courtroom. She told the defense counsel and the assistant district attorney. Judge Serita set bail at $500 and the woman was held in the jail behind the courtroom — with Rikers Island her ultimate destination — where she met with her lawyer.
Later that afternoon, Judge Serita released the defendant on her own recognizance. The ICE agents had left, apparently in search of another target.
Judge Serita said she had not set bail for the purpose of evading the law. “It’s to give the individual an opportunity to discuss the matter with his or her lawyer,” she said.
As it happened, ICE officers arrested another woman as she left the court and was walking toward the subway, her lawyer, Sheldon Glass, said. Rachael Yong Yow, a spokeswoman for the New York ICE field office, confirmed the arrest.
Following that action, Chief Judge Janet DiFiore met with federal immigration authorities and asked ICE to consider the trafficking court as a sensitive location.
The policy remains.
Not all judges are sympathetic. Tiffany Gordon, a Legal Aid lawyer in the Bronx, said that a case involving one of her clients had gone before four judges, and there had been different reactions to the suggestion that federal agents might be in the courthouse.
The man, a 38-year-old undocumented immigrant from Ecuador, was charged with driving while impaired and was afraid to show up to his first appearance because he thought ICE would be at the courthouse. Agents were, indeed, there.
Ms. Gordon said that the judge that day, Bahaati Pitt, asked for a reason to reschedule; Ms. Gordon offered that she was busy with other cases. The judge accepted that answer. The next appearance, however, was before Judge Beth Beller. Again, ICE agents were in the courthouse to arrest the man, but he was waiting them out at a nearby McDonald’s.
Judge Beller issued a bench warrant, compelling him to appear, which he did not do that day.
“She wasn’t going to assist us in navigating around it,” Ms. Gordon said.
She got her client excused from his next two court dates, with two other judges.
Judge Beller declined to comment because the case is still active.
Lawyers cannot tell their clients not to show up. “We cannot ethically advise them not to go to court,” Lee Wang, a lawyer with the Immigrant Defense Project, said. Instead, she added, lawyers look to be creative.
Asking a judge to set bail for a client to go to Rikers is an extreme measure, but according to Ms. Wang it happened six times since January when ICE was present. Two of those times, the judges refused.
“What does it mean that they will be safer in Rikers than being released?” Ms. Wang asked. “I think it means we’re in an ugly place.”