DocumentedNY: Cases Rescheduled as ICE Fails to Produce Dozens of Detainees in Immigration Court

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By Felipe De La Hoz
February 9, 2019

Immigration courts are often chaotic. On Wednesday, the detained docket of New York City Immigration Judge Charles Conroy took things to the next level, as ICE personnel were unable to explain to an increasingly frustrated Conroy and a cadre of immigration lawyers where the detainees were.

Conroy had an extraordinarily heavy docket of about 40 detained cases scheduled for the day, partly because of rescheduling after unexpected dockets at the facility—which usually only sees cases for immigrants who are not detained—left several detainees without legal representation. Immigrants were supposed to start showing up at 8:30 am sharp, and they did. Except their orange jumpsuits indicated that they had been brought from the Bergen County Jail in Hackensack, N.J., while most of the attorneys were waiting for clients brought from the Hudson County Jail, in Kearny, N.J.

As Conroy started calling cases, attorneys jumped up to say that their clients were not in attendance. “Wait, your client isn’t here either?” Conroy said after seeing one attorney seated at the respondents’ table by himself. The judge then looked out at the handful of attorneys waiting on the courtroom benches and asked “Do any of you attorneys have a client sitting here, right now?” After a moment of silence, he looked exasperated. “No? Okay.”

Some lawyers speculated that because ICE stopped taking detainees from Hudson County Jail to the 201 Varick Street courtroom last year and had instead been beaming them into the courtrooms via video link , agents had assumed that this docket at 26 Federal Plaza would work the same way and didn’t bother to bring the detainees in person.

Hearings can’t move forward

After several lawyers informed Conroy that they would have to leave for other commitments, Conroy offered to postpone the cases further. Then, a man who announced himself as a supervisor in the Office of the Chief Counsel, ICE’s prosecutorial division, stepped up and apologized to the judge, saying that there was “no excuse for what happened,” and claimed that the detainees were on their way on a bus. Conroy responded that he doubted he could get through all the cases now.

The courtroom not only had attorneys without clients, but immigrants without attorneys. Several detainees who had their cases re-calendared appeared not to have been able to secure lawyers in the time since their first hearing. The New York Immigrant Family Unity Project (NYIFUP), a city-funded immigration public defense project composed of three of the city’s largest public defender organizations, is intended to guarantee defense in all removal proceedings. The NYIFUP providers — the Bronx Defenders, the Legal Aid Society, and the Bronx Defenders — have said that they do not have the operational capability to represent all clients at the 26 Federal Plaza facility in addition to those appearing at the immigration court at Varick Street, which is where detained dockets are normally heard.

Consequently, some immigrants present were unsure whether they had lawyers or not, as they’d had consultations but didn’t know if their families had ultimately hired anyone. One man said that his family had asked the Bronx Defenders to take his case, but it had been unable to, and he could not afford a private attorney.

Instead, he ended up representing himself. He agreed to be deported as opposed to seeking voluntary departure because the judge mentioned that the government would cover the cost of the deportation and not the departure, without seeming to understand any of the collateral legal consequences.

After repeated extensions of the Hudson detainees’ estimated arrival time (once they actually arrived at the building, the ICE supervisor declared that the elevator was broken and the detainees were headed up to the twelfth floor on foot, presumably in shackles), the detainees were finally brought outside the courtroom at about 12:30pm, four hours after the initial docket had been scheduled. Then, to the dismay of the still-assembled attorneys, word started trickling in that ICE had still not brought all of the right detainees, and many of their clients remained at the jail in New Jersey.

At this point, two lawyers elected to move ahead with the hearings and waived their clients’ right to be present. Both were denied bond. Others had to reschedule their clients’ cases for a later time, after having waited all day.

More time waiting in jail

For detainees who had custody hearings, this meant waiting in jail for a couple more weeks before they could plead their cases for release. One such case was that of Cristian Marín, who was arrested on Jan. 17 and who had already had his case re-calendared because he didn’t have an attorney during his first appearance. His wife, Ingrid Flores, had been waiting outside the courtroom with the couple’s four-month-old son all day for a hearing that never happened.

“Now I have a job, because my husband is detained,” she said as she cooed at the infant. His case had been reset for Feb. 22 at Varick Street, and she anticipated having to miss a third day of work. “I’m not getting paid. I have a 12-year-old at home… It is terrible, traveling here by train with the baby.”

Marín’s attorney, Leena Khandwala of the Legal Aid Society, said she was concerned that a lot of the cases that were reset on Wednesday had been set for Feb. 22. The pro bono NYIFUP attorneys are typically not there on Fridays, and Conroy repeatedly made clear that any detainees who again appeared without counsel would just have to proceed unrepresented. “If these detainees are unable to get private counsel, and NYIFUP is not going to be present on their reset date of February 22nd, they are going to have to proceed on their own,” Khandwala said.

Throughout the day, Conroy’s legal assistant tried to use the teleconferencing system that was set up to one side of the courtroom in efforts to reach the detainees still stuck at Hudson, but couldn’t get through. At some point, she said that all the lines were busy. At about 2:45pm, over six hours after the first detainees were supposed to have their cases heard, Conroy got through to Hudson, and some of the remaining attorneys were finally able to proceed with the hearings. At least one was seeing her client for the first time through the video link.

The Executive Office for Immigration Review (EOIR) is planning to open up new courtrooms at the Varick Street facility, including for detained dockets, and shuffle judges around. The odd dockets may be part of efforts to phase in the changes and respond to claims that they are taking too long to produce detained immigrants for their first hearings, an argument that forms the basis of a lawsuit filed by Bronx Defenders against the government.

Clearly, there are significant kinks in the coordination between EOIR, which is part of the Justice Department, and ICE, which is part of the Department of Homeland Security. An EOIR spokesman referred questions about the failed appearances to ICE. ICE had not responded to questions about the incident by publication time.