Denying In-Person Appearances Will Impact Due Process, Access To Counsel, And Exacerbate Separation From Families And Loved Ones
Brooklyn Defender Services, The Bronx Defenders, and The Legal Aid Society – New York City’s primary defender organizations providing pro bono legal representation on immigration matters through the New York Immigrant Family Unity Project (NYIFUP) – released the following joint statement today responding to U.S. Immigration and Customs Enforcement’s (ICE) refusal to bring people to the Varick Street Immigration Court for their hearings, and its decision to replace in-person appearances with remote video teleconferencing:
“The decision by ICE to eliminate in-person appearances in court is a direct attack on people who have been waiting for months in detention for their opportunity to meet with attorneys, assert their legal right to remain in this country, and see their loved ones,” said New York Immigrant Family Unity Project’s legal providers. “This is a byproduct of President Donald Trump’s most recent pronouncement that immigrants do not deserve the opportunity to go before an Immigration Judge and reflects Attorney General Jeff Sessions’ recent actions to prioritize speed and maximize deportation orders in court rather than ensure due process. As public defenders representing immigrants, we demand that ICE immediately resume bringing individuals to Varick Street to be heard and have their day in court.”
Last weekend, a small group of protestors self-named “Occupy ICE NYC” blocked the garage entrance that ICE uses to bring detained immigrants into the immigration court at 201 Varick Street, New York, NY. In response, ICE cancelled all hearings scheduled on Monday, June 25, 2018. There have been numerous protests and gatherings at this courthouse in the past, none of which resulted in cancelling court appearances. Because of the cancelled hearings, dozens of people were prevented from coming to court, where they would have met with a lawyer for the first time; others missed their continued hearing at which they might have finally received a ruling on their case. Still others who would have agreed to go back to their country of origin were instead forced to remain in horrid conditions of detention. Family members who were in the courtroom to support their children, parents, husbands, and wives were sent home without the opportunity to even see their loved ones.
That night, the small group of protestors agreed to move their non-violent protest across the street, enabling access to the garage entrance. On Tuesday, even though there was no longer any blockage of the garage, ICE claimed that a so-called “security risk” forced it to suspend all in-person appearances at Varick Street for the indefinite future. ICE stated that it would force the Court to hold all hearings by video and audio teleconferencing.
On Wednesday, the Occupy ICE NYC group issued a public statement that the protests at the Varick Street Immigration Court were over. ICE has yet to commit to continuing to in-person court appearances.
The unilateral decision by ICE to deprive people of their day in court is not a reasonable response to a peaceful protest, but rather a pretext for a direct attack on the rights of individuals in this country to access the courts and have a meaningful opportunity to be heard.
Impact on Client Representation
This unilateral decision by ICE to replace in-person appearances with video and audio teleconferencing would eviscerate the ability of NYIFUP providers to ensure due process for people facing removals. Until now, this program has ensured due process by providing a free attorney to almost all unrepresented detained immigrants facing deportation at Varick Street Immigration Court at their first court appearances. Under this program, attorneys have increased immigrants’ rate of winning their cases by a factor of ten, showing that approximately one-third of people arrested and brought to court by ICE are actually entitled to remain in this country under the law. This new process will now deprive immigrants, many of whom have been waiting over three months, of their long-awaited opportunity to speak with a NYIFUP attorney at their first appearance.
Forcing people to rely on videoconferencing to fight their case would severely limit their ability to have a full and fair hearing. Under normal circumstances, clients brought to Varick Street meet with attorneys prior to and following their court appearance to assess their legal options, sign or review documents, and make decisions about how to proceed with their case. Now, clients won’t be able to do those things nor will they be able to sit with their lawyers in court or look at the evidence presented. Immigration judges will be forced to engage in the inherently difficult task of making credibility assessments involving the most sensitive and emotional of subject matter - all through a screen. In most cases, attorneys will be entirely unable to meet confidentially with their clients before appearing in court, or to do anything other than adjourn a case for another date, adding weeks to the already long detention period and adding to extreme court delays. Many people with strong cases may simply give up and sign their own deportation orders – in spite of potentially being able to remain and achieve lawful status.
Denying people the ability to connect with their family in court would exacerbate the immense pain and suffering experienced by our clients and their families. Detained people and their family members often suffer enormous pain and suffering as a result of the separation. Historically, the opportunity for family to briefly connect in court has been one of the few restorative moments in an otherwise-traumatic system.
Immigrants will be further dehumanized. Despite the best intentions of judges to be impartial, there is no doubt that having a live person in the courtroom has an impact on the decision-making in cases. Displacing people from their own court proceedings and onto an impersonal television screen denies their full humanity and makes justice even more elusive than it already is under the current administration’s mass deportation machine.