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DIRECTOR OF CIVIL JUSTICE PRACTICE SERGIO JIMENEZ TESTIFIES BEFORE THE NYC COUNCIL COMMITTEE ON PUBLIC HOUSING

 Sergio Jimenez – Director, Civil Justice Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committees on Public Housing and Oversight & Investigations

Oversight Hearing Examining DOI’s Report on NYCHA’s Permanent Exclusion Policy

April 24, 2017

I. Introduction

My name is Sergio Jimenez and I am the Director of the Civil Justice Practice at Brooklyn Defender Services (BDS). Our organization provides multi-disciplinary, and client-centered criminal defense, family defense, immigration, civil legal services, social work support and advocacy in nearly 40,000 cases involving indigent Brooklyn residents every year. I thank the New York City Council Committees on Public Housing and Oversight & Investigations, and in particular Chairs Ritchie Torres and Vincent Gentile, for the opportunity to testify on DOI’s investigation of New York City Housing Authority’s (NYCHA) Permanent Exclusion policy and Councilmember Gibson’s reporting legislation.

BDS is fortunate to have the support of the City Council, as well as other elected officials and the Office of Court Administration, to supplement the services we provide as the public defense office in Brooklyn for people who have been arrested, those who are facing child welfare allegations, and those who are facing deportation, with civil legal support. Through both legal advocacy in court and direct advocacy with various agencies, we assist people in fighting evictions, maintaining their public benefits, staying in school, keeping their jobs, and protecting their consumer rights. Our Civil Justice Practice aims to reduce the so-called collateral consequences of interactions with the criminal, family or immigration justice systems. We also assist criminal defense attorneys and their clients by identifying potential civil ramifications of guilty pleas and strategizing ways to minimize the risk of eviction, loss of employment, and educational consequences as a result of a criminal conviction. We serve many clients who might otherwise be left to navigate these challenges alone. Finally, in addition to our in-house work, we engage with the community and hold external educational clinics in close partnership with community-based organizations and elected officials.

II. The DOI Report

The March 2017 report by the New York City Department of Investigation (DOI), entitled “NYCHA Is Still Failing to Remove Dangerous Criminals from Public Housing,” is at least a decade out of date. Long ago, we as a city began to move away from the inflammatory rhetoric and belligerent strategies espoused by DOI. The “aggressive” imposition of civil collateral consequences to criminal court involvement, which we call “perpetual punishment,” is precisely the opposite of what individuals and experts across the political spectrum are now advocating in the interest of justice and public safety. Frankly, this report is utterly confounding to those of us who work with NYCHA residents. As the report notes, crime rates in both NYCHA and the city as a whole are at historic lows. After years of misusing its eviction and exclusion powers, NYCHA has begun to move in the right direction in protecting both the safety and tenancy rights of its residents, engaging in a thoughtful process that includes consultation with residents, advocates and legal service providers. It is unclear what prompted this report, and who its recommendations are intended to benefit. It cites no evidence or indication that increasing evictions—i.e. driving more of New York’s extremely low-income residents into overcrowded and unstable housing or shelters in neighborhoods throughout the City—actually improves public safety, either locally or citywide. In reality, there are many ways in which heeding DOI’s recommendations could make NYCHA’s residents less safe.

A serious public safety plan would address the issues underlying broader inequalities, including but not limited to rates of violence, in public housing. In an era of potentially unprecedented cuts in federal funding for public housing, with many urgent capital and operating funding needs, DOI instead urges NYCHA expend scarce resources on increasing its Special Investigations Unit staff to aid in enforcement of its Permanent Exclusions. DOI also recommends authorizing investigators to carry firearms to backup this enforcement—a dangerous and alarming idea that does not appear to follow any particular incident of violence against staff. In the alternative, DOI recommends that NYCHA transfer these duties to the New York Police Department, with whom many residents already have an acrimonious relationship. Moreover, DOI ignores the serious risks of adding deadly weapons, regardless of who carries them, to fraught situations in which government actors use invasive searches to justify evictions of marginalized people from their housing of last resort.

The tragic death of Akai Gurley, who was shot and killed by a rookie police officer while peaceably descending the stairs in Louis H. Pink houses, illustrates the dangers of armed law enforcement agents simply patrolling residential buildings. (The elevator was broken and the lights were out, both of which represented unmet funding priorities.) Police-led eviction procedures would only intensify community distrust of law enforcement. The New York City Council deserves a lot of credit for spearheading a series of important reforms curtailing the NYPD’s use of the Nuisance Abatement Law; putting the police back in the business of residential evictions would be a major step in the wrong direction.

These recommendations would also aggravate the harm done by the Drug War through compounding the already substantial and counterproductive criminal court sanctions with long-term housing displacement—not only for the accused, but also for her family and support network. Likewise, they would respond to allegations of violent behavior by individuals with aggressive, violent and potentially deadly removals of families from their homes and communities, by armed NYCHA investigators or police. The report further calls on NYCHA to evict more people by offering fewer settlements. Specifically, the report calls on NYCHA to “aggressively prosecute” violations of Permanent Exclusion, which, in my experience, would require ignoring mitigating circumstances, and result in long, acrimonious, and expensive legal and administrative battles that are in no one’s interest. Altogether, these recommendations represent a significant entrenchment or expansion of the collateral consequences the City Council has been studying and working to undo in recent years.

Lastly, it must be said that DOI’s approach treats court-involved New Yorkers as the undeserving poor, ignoring the reality that housing is a legal right in this city. The report fails to mention that New York City is in the midst of a “housing emergency,” with the vacancy rate most recently estimated at 3.45 percent and rents rising the fastest in the poorest neighborhoods.[1],[2] People who are evicted from NYCHA are at extreme risk of ending up homeless. I appreciate the Council’s thorough consideration of this report today, but the primary question, as I see it, is what is the endgame?

III. Int. 1207 – 2016

BDS supports Int. 1207, sponsored by Council Member Vanessa Gibson. The bill would require reporting on NYCHA’s Permanent Exclusion practices, including demographic information on affected individuals and the nature of the criminal allegation or conviction prompting the punitive action. This information will help to inform effective changes to Permanent Exclusion.

The Continuing Need to Reform NYCHA’s Termination of Tenancy and Permanent Exclusion Policy

There are many ways in which residents of NYCHA live a Tale of Two Cities. Nearby schools are often very segregated. Urgent repairs in public housing are subject to long delays with no meaningful accountability, while private landlords face enforcement action from the City. And while the New York City Council is working to lift people out of the homelessness crisis and expand affordable housing options, NYCHA continues to pursue evictions against people from their housing of last resort[3] based on unsubstantiated and even dismissed criminal allegations.

While the Permanent Exclusion policy might be well-intended and arises from the legitimate concerns of many residents and agency officials, it is among the starkest examples of our government’s counterproductive approach to crime and social problems. There is no evidence or indication that increasing evictions—and exacerbating our City’s homelessness crisis—improves public safety. Past statements by the Administration, the report by the New York City Department of Investigation, and media reports all apparently presume the efficacy of evictions in reducing crime; none have provided any justification for this approach.

Background

As you may know, federal law requires public housing authorities to evict and exclude people from admission based on certain limited criteria: those convicted of “drug-related criminal activity for [the] manufacture of methamphetamine on the premises of federally assisted housing” and those subject to lifetime inclusion in State sex offender registries.[4] While those are the only two mandatory exclusions, NYCHA has created a discretionary model that builds on these criteria and excludes people arrested—not convicted, but arrested—even for low-level, non-violent offenses, regardless of the dispositions of their cases.

Arrests do not tell us anything about a person. First and foremost, that person is presumed innocent unless convicted, and thus any statutory consequence in public housing calls for questions of constitutionality. Secondly, in New York, many targeted communities, particularly low-income people of color, find interactions with law enforcement to be a regular occurrence, despite no wrongdoing. This is especially true in public housing, where police officers regularly question residents’ right to be in their own buildings. Moreover, despite recent reforms, our City, State, and Country continue to rely on mass arrests, mass incarceration and long-term supervision in lieu of effective policies and programs to address mental illness, poverty, addiction, homelessness, and widespread invidious discrimination. These issues disproportionately impact NYCHA residents and their families. Likewise, the high unemployment rate among public housing residents—only 47.3% of families have one or more employed member[5]—tells us residents are particularly vulnerable to arrest for crimes of poverty, such as turnstile jumping or petit larceny. In fact, an estimated 7.1 million people in New York State, or 36%, have RAP sheets. This statistic exemplifies the enormous reach of the dragnet of our criminal justice system. As a society, we must not define people by their criminal histories. As a landlord and safety net, NYCHA should not evict them on such a discriminatory basis.

Housing as a Matter of Justice and Public Safety

Many NYCHA residents are understandably frustrated by higher crime rates in their developments relative to the City at large, and as community leaders, Council Members are best positioned to facilitate an honest, intergenerational conversation about evidence-based approaches to public safety. Stable housing and healthy support networks are two key elements in any person’s ability to overcome the multifaceted challenges of being poor in New York. Housing is essential to educational continuity, finding and keeping jobs, adhering to physical and mental health care regimens, and accessing critical services including drug rehabilitation and therapy, all of which impact crime rates and recidivism. Likewise, robust support networks help us get by and hold us accountable. Both are shattered by Permanent Exclusions, which push individuals into shelter and tear apart families upon threat of evicting their entire household. NYCHA’s efforts to restrict the use of Permanent Exclusion should therefore be recognized as a move to improve public safety.

The lack of viable housing options that is endemic to our city results in increased rates of crime and recidivism, and taking housing from those who have it only exacerbates this problem. Our City and State criminalize poverty in general and homelessness in particular. People are sent to Rikers at a cost to taxpayers of more than $500 per day for skipping a $2.75 fare they likely cannot afford. They are arrested for “feet on the seat,” often for sleeping on the train, or trespassing for sleeping in a stairwell. However, the displacement and marginalization caused by Permanent Exclusion can also lead to more serious crimes that impact public safety. For example, disruptions in psychopharmacological drug and therapy regimens, which are extremely difficult to follow while moving from shelter to shelter at irregular hours, can lead to violent incidents. DOI’s recommendations represent a threat to public safety.

The following client story exemplifies the problem:

Ms. C

BDS’ Criminal Defense Practice represented Ms. C’s following a single alleged purchase of drugs from her apartment. She was arrested more than a year after the alleged incident, despite a statement by the confidential informant that described someone three inches taller and about seventy pounds heavier. Ms. C was released on her own recognizance and her charges were progressively reduced as her case was going on its third year. Finally, upon the Assistant District Attorney’s motion, the criminal case was fully dismissed. However, during the course of the determination of this criminal case, NYCHA brought a termination of tenancy proceeding based on the allegations. Ms. C was asked to defend a case that had already been litigated and dismissed in criminal court—a more appropriate venue to consider these allegations—placing her housing of last resort in jeopardy. There were never any allegations of violence through the entirety of Ms. C’s tenancy but now, Ms. C faces the loss of housing of last resort, stemming from a dismissed criminal case.

IV. Real Reform

There are many ways to improve the process by which exclusions and evictions are initiated. Residents sometimes, without counsel and advice, unknowingly agree to prohibit a family member from ever visiting their apartment. While we applaud NYCHA’s efforts at making the process to be removed off these lists more transparent and user friendly, this process must not be abused as it has been historically. Because tenants usually go through the proceedings pro se (without representation), the outcomes are often opaque and couched in impenetrable legalese. Tenants deal directly with NYCHA’s prosecuting attorneys without being informed of the attorneys’ role in the matter. Those with limited English proficiency do not receive adequate translation services. Troublingly, these agreements are long and dense and often not thoroughly explained to tenants agreeing to them. Certainly, providing additional funding for civil legal service providers to represent every NYCHA resident facing termination proceedings and providing robust translation services would improve case outcomes. Already, the Council provides funding for pro se help by funding Housing Court Answers to set up information booths, which deserves praise. That said, the mere fact that NYCHA reinstated its public “Not Wanted List” should be a clear indicator to the Council that this policy is informed by stigma and not sound judgement. Simply improving the process is insufficient. The primary driver of reform should be dramatically reducing the number of people forced from their homes through changes in NYCHA policy to make eviction an absolute last resort.

V. Conclusion

The soaring rates of poverty and homelessness in an extremely wealthy city like New York are inexcusable and we can do better. We are in crisis. Indeed, many of New York’s elected and appointed officials in every level of government consider expanding housing opportunities to be among their top priorities. Yet DOI’s push to amplify NYCHA’s exclusionary policies is an anomaly that endures only because of a misunderstanding about what makes us safe. Given the adverse impacts of unstable housing on individuals, communities, and our city as a whole, I respectfully urge Council Members to turn away from this dangerous instinct and work to expand re-entry in public housing authorities. This effort would require initiating conversations with the public housing communities in your districts about the problems with the broad-based exclusion of fellow residents, including those who have made mistakes, and helping to empower those who have been directly impacted by this policy to help lead the fight for reform.

[1] http://www1.nyc.gov/site/hpd/about/press-releases/2015/02/24.page

[2] https://www.nytimes.com/2017/03/03/realestate/south-bronx-rent-increases-greatest-in-the-city.html

[3] Matter of Featherstone v Franco, 269 AD2d 109, 111 [dissenting mem]; see also, Matter of Sanders v Franco, 269 AD2d 118; Mireya Navarro,

As NewYork Rents Soar, Public Housing Becomes Lifelong Refuge, The New York Times (Aug. 3, 2015) available at  http://www.nytimes.com/2015/08/04/nyregion/as-new-york-rents-soar-public-housing-becomes-lifelong-refuge.html

[4] 24 CFR § 960.204

[5] http://www.nyc.gov/html/nycha/downloads/pdf/res_data.pdf

NYASA HICKEY TESTIFIES BEFORE THE NYC COUNCIL JOINT HEARING ON IMMIGRATION

TESTIMONY OF:

 

Nyasa Hickey – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committee on Immigration, Committee on Public Safety

and Committee on Education

Joint Hearing on Immigration

 

April 26, 2017

 

Introduction

My name is Nyasa Hickey. I am the supervising attorney of the Padilla Unit and Youth and Communities Project at Brooklyn Defender Services (BDS). I thank the City Council for this opportunity to testify about the nine bills under consideration today.

BDS is the largest legal services provider in Brooklyn, representing low-income New Yorkers who are arrested, charged with abuse or neglect of their children or face deportation in nearly 40,000 cases each year. Since 2009, BDS’s immigration practice has counseled, advised or represented more than 7,500 immigrant clients. We have been a proud New York Immigrant Family Unity Project (NYIFUP) provider since the program’s inception.

New York City, and in particular, the City Council, has been a leader in the protection of non-citizen residents. We strongly support the sentiment behind these bills. They recognize the enormous threat that immigrant communities face in an era of increased surveillance and enforcement. The City can and should do more to ensure that residents are not unnecessarily targeted for detention or deportation because of some action or failure to act by the City. These bills are an important step towards increasing the reach of Sanctuary City policies. We also articulate additional ways that the City can expand the proposed bills to demonstrate its commitment to being a Sanctuary City.

Bills

  1. 1568 – City Resources Bill, introduced by Council Members Espinal, Johnson and the Speaker

Brooklyn Defender Services supports this bill. The bill makes clear that city officers and employees shall not accept requests by federal law enforcement agencies to support or assist in operations primarily in furtherance of federal immigration enforcement and that no city resources shall be used for such efforts.

  1. City Property Bill, introduced by Council Members Menchaca, Johnson and the Speaker

BDS supports this bill. The bill restricts immigration law enforcement’s access without a judicial warrant to city property. The bill also requires the Mayor’s Office of Immigrant Affairs to create signage to inform the public of their rights with respect to federal immigration enforcement.

  1. 1569 – Disorderly behavior bill, introduced by Council Members Gibson, Lancman, and the Speaker

BDS supports this bill. This bill creates a new disorderly conduct offense, which would be considered an infraction under federal law, unlike the New York Penal Law 240.20, disorderly conduct, which is sometimes treated as a criminal conviction under federal immigration law.

  1. DOE Undocumented Students Information Bill, introduced by Council Members Dromm, Menchaca, Ferreras-Copeland and the Speaker

BDS supports this bill. The bill requires the Department of Education (DOE) to provide biannual notices to City students and their families in plain language about their rights to prevent the disclosure of certain information as well as other rights pertaining to public education regardless of immigration status, the right to refuse to speak to federal immigration authorities, and the right to apply for certain immigration benefits. In addition, the notices will state the DOE policy regarding interactions with federal immigration authorities and protocols for detention of a parent by federal immigration authorities.

  1. EO bill on Identifying Information, introduced by Council Members Williams, the Speaker (Council Member Mark-Viverito), Espinal and Ferreras-Copeland

BDS supports this bill. The bill codifies and strengthens Executive Order 41 and aims to protect the disclosure of personal identifying information that could be used for purposes contrary to the City’s interests.

Our main feedback is that the bill it is fairly detailed and may, as written, be difficult for agencies to interpret and follow. Without offering specific suggestions, we recommend editing the bill to be more simple and shorter, if possible, to facilitate compliance.

  1. Identifying Information Division bill, introduced by the Speaker

BDS supports this bill. The bill creates an identifying information division within the City law department to ensure the city’s data retention policies do not place immigrants at risk or hinder immigrants’ access to City services. The identifying information division also centralizes the review of all disclosures of info to federal immigration authority, which imposes bureaucratic hurdles to such disclosure and ensures some level of uniform enforcement of rules.

  1. MOIA Expansion Bill, introduced by Council Members Dromm, Rodriguez and the Speaker

BDS supports this bill, which would expand the powers and authority of the Mayor’s Office of Immigrant Affairs.

  1. 1578 – MOIA Task Force Bill, introduced by introduced by Council Members Menchaca, Dromm, Williams and the Speaker

BDS supports this bill, which would create an interagency task force to review compliance with the new bills, the detainer law, and ongoing developments in state and federal law.

  1. 1558 – Probation and ICE bill, introduced by the Speaker and Council Member Ferreras-Copeland

BDS supports this bill. The bill applies the DOC detainer law to the Department of Probation, ensuring that the DOP’s resources are allocated for appropriate purposes in accordance with the City’s interests.  However, BDS recommends expanding the scope of the reporting requirements in relation to concerns we will articulate in the subsequent section.

  • Recommended Additions to the Proposed Bills
  1. Expand Identifying Information Division authority to include the Department of Correction (DOC), the New York Police Department (NYPD), and Department of Probation (DOP).

As of April 2, 2017, ICE is utilizing a new immigration detainer form, Form I-247A (Immigration Detainer—Notice of Action). The previously used forms I-247D (Immigration Detainer—Request for Voluntary Action) and I-247N (Request for Voluntary Notification of Release of Suspected Priority Alien) and Form I-247X (Request for Voluntary Transfer) are no longer being issued.  As a result, detainer requests and requests for notification are now encompassed on one form, whereas previously they were issued on two separate forms.  In addition, according to Policy Memo No. 10074.2 issued on March 24, 2017, the new form I-247A must be accompanied by a civil immigration warrant in the form of I-200 or I-205.

In the past couple of weeks two BDS clients have been arrested by ICE agents at Rikers Island and transferred to immigration custody.  BDS believes that in both cases, DOC notified ICE about the individuals pending release pursuant to a request for notification and ICE arrested and detained the individuals directly at Rikers Island.  BDS attorneys, appointed by the criminal court to represent these two individuals, were not informed by DOC about the request for notification of the person’s release to ICE. Instead, upon our inquiry before each client’s anticipated release date from DOC custody, we were informed that the individual was to be released pursuant to the DOC detainer law.  Subsequently, BDS was not informed about the release of the individual to ICE custody directly from DOC custody.

In neither instance was BDS provided with a copy of the detainer or request for notification to determine whether or not it was lawful or accurate. Finally, we were not provided sufficient information about who within the Department makes the ultimate determination to release our clients to ICE, or notify ICE of pending release of our client and under what authority that determination is based.  These two recent arrests appear to reflect a change in the Department’s interpretation or implementation of the restrictions under the NYC DOC detainer law or, in the alternative, it reflects an increase in federal immigration enforcement and consequent interaction with DOC.

Accordingly, there is an urgent need for transparency about the DOC’s internal detainer and request for notification compliance policy. Defense counsel’s job is to hold the government to its constitutional and statutory obligations. We cannot fulfill our duties as defense counsel to help protect New Yorkers if we are not provided with the appropriate information.[1]  Defense counsel and affected individuals in the City’s custody must be informed in advance about the existence of a detainer or request for notification (the I-247A form), the alleged basis of that detainer and the City’s determination about whether or not the detainer or request for notification will be fulfilled.

To ensure that all New Yorkers in the City’s custody receive due process and sufficient legal advice before transfer to immigration custody, we request the City Council legislate the following:

  • Defendants and defense counsel should be notified immediately if there is a detainer or a request for notification from ICE to NYPD, DOC or probation.
  • Defendants and their counsel must be provided with a copy of the detainer, request for notification and any accompanying information issued by federal law enforcement.
  • The NYC departments of police, correction, and probation shall be subject to the advice, review, and disclosure requirements of the proposed “identifying information division” bill.
  • The NYC departments of police, correction, and probation should publish on their website and share with the Council its policy for complying with detainers and requests for information from federal law enforcement. The policy should articulate the chain of command for the decision making process, including a final decision maker and point person for individuals and defense counsel to contact in the law department in the identifying information division.
  • The reporting requirements for NYPD, DOC and DOP should include the reporting and notification to affected individuals requirements specified in the “identifying agency” bill. Similarly, the reporting requirements in the proposed probation bill should include reporting of requests for notification and transfer of individuals to ICE custody pursuant to a request for notification.
  • Additionally, reporting requirements for DOC, NYPD, and DOP should be expanded to include requests for notification received, requests for notification fulfilled, and transfer to ICE custody from the City’s custody, regardless of whether or not an individual was held beyond the time he would otherwise be held pursuant to a detainer. Specifically, they should be required to report annually:
    • How many times NYPD called ICE or federal immigration enforcement to verify a NCIC hit for an individual in NYPD custody;
    • How many times ICE was called about a person in DOC custody to verify or request information;
    • How many times ICE picked up an individual within DOC custody—how many times an individual in DOC custody was released to ICE custody;
    • How many times NYPD called ICE to notify about an individual who falls within the “violent or serious felony conviction” definition under NYPD detainer law;
    • How many times DOC called ICE to notify about an individual who falls within the “violent or serious felony conviction” definition under DOC detainer law;
    • How many times DOC and NYPD received a I-247A form from federal authorities.

These amendments would go a long way to ensuring transparency and accountability for these agencies that deal with New Yorkers accused or convicted of crimes, a group highly vulnerable to immigration enforcement.

  1. Implement training and compliance enforcement mechanisms for the proposed and existing bills, including Local Law Administrative Code 9-131 and § 14-154.

To ensure that all City agencies and employees, including NYPD, DOC and probation, understand their obligations and requirements under existing and proposed legislation, we request that the City mandate training and create compliance mechanisms.

For example, in some instances it appears that NYPD is communicating information about defendants’ whereabouts to immigration enforcement authorities when they call for verification of National Crime Information Center (NCIC) information. While some have attributed these instances to rogue NYPD officers, the resulting courthouse arrests strongly suggest that NYPD requires additional training on how to comply with the detainer law. Similarly, based on our conversations with various DOC staff, there is definite confusion among department staff about whether an ICE detainer (or warrant) will be honored, as well as confusion about the difference between an ICE administrative warrant, an ICE detainer, an ICE hold, and a federal judicial warrant.  This confusion has resulted in difficulty in posting bail and other delays in our client’s release from DOC custody.

In short, the need for training of the people who will be called on to implement these laws is acute. Experience shows that a lack of training can lead to ICE arrests, deportations and greater fear and uncertainty among immigrant communities: exactly the opposite result of what the proposed legislation seeks to achieve. The need for regular and consistent training is greatest for NYPD, DOC and DOP employees who regularly interface with federal authorities as a component of their day-to-day responsibilities. The City can achieve the stated goals of these bills, help to ameliorate harm to immigrant communities, and provide City employees who are dedicated to serving New York residents with the tools they need to carry out the letter and the spirit of the law, but only if we ensure proper training of employees on the frontline.

Further actions towards ending Broken Windows policing

BDS wants to applaud the City for long-standing efforts to roll back broken windows policing and to lower arrest numbers. This policy shift likely saved countless people from unnecessary immigration enforcement and other devastating collateral consequences like criminal convictions, mass incarceration, homelessness, child welfare involvement and diminished employment opportunities.

As the Council already knows, NYPD’s policy is to fingerprint anyone who is arrested, even if only for a low-level offense like fare evasion. Some police armed with tablets are even fingerprinting people in their neighborhoods, without even making an arrest that leads to a trip to the precinct and processing at Central Booking.[2] Fingerprints collected by the NYPD are transmitted to the FBI, who in turn can share them with the Department of Homeland Security, potentially leading to an arrest by ICE and deportation. Even if a district attorney declines to press charges, an immigrant is put at immediate risk of being found by ICE. Broken windows policing, or the criminalization of the most minor offenses, even without a resulting conviction, thus directly sends thousands of immigrants and their fingerprints to the federal government every year.

Over the past three years, the BDS immigration practice has represented dozens of detained clients in deportation proceedings for underlying “crimes” like possession of small amounts of marijuana, turnstile jumping, and possession of “gravity knives” (really work tools carried by laborers, often required by their union contracts, and purchased legally at major retailers like Home Depot).  Many of these clients are legal permanent residents who had been living in the U.S. for dozens of years with these minor convictions on their record before they were swept up by ICE.

New York is safer than it has ever been, in part because of the City’s step away from the mass criminalization of communities of color in an effort to build trust between neighborhoods, residents and the city agencies that serve them. However, the Council must remain committed to continuing to roll back Broken Windows policing. We can further limit the flow of the arrest-to-deportation pipeline by continuing efforts to eliminate arrests for low-level behavior in the first instance so that a person’s fingerprints are never uploaded to the FBI database.

We call upon the Council to continue working with the Mayor’s office and the NYPD, with the goal of functionally eliminating arrests for quality of life crimes. We can improve the quality of our communities without fingerprinting people and stigmatizing them with a criminal record if they cannot afford to pay their subway fare or if they ride their bicycle on a sidewalk. An end to Broken Windows makes all of New York’s communities stronger, including immigrant communities.

Conclusion

The bills before the Council today are important steps to ensuring that New York City is a sanctuary for all of its residents, including non-citizens. We call on the Council to remain committed to protecting the rights of New Yorkers is by ending Broken Windows policing, removing ICE from our courthouses, shelters and other city buildings, and providing immigrant communities with education, increased funding for legal counsel and support.

If you have any questions about my testimony, please feel free to contact me at nhickey@bds.org or 718-254-0700 ext. 230.

[1] A related problem is that judges and District Attorney’s offices are no longer turning over the NCIC to defense attorneys in arraignment along with the defendant’s RAP sheet. Until a few weeks ago, the NCIC, which listed any immigration holds or prior deportation orders, were turned over as a matter of course to defense counsel as a part of the RAP sheet. The recent withholding of this information, seemingly at the behest of the feds, severely limits defense counsel’s ability to properly advocate for our clients at arraignment on matters of bail and whether or not to accept an immediate disposition in the case. We are working with OCA and other court stakeholders to challenge this new decision, but wanted to raise this to the Council as another very recent change in federal policy that is impacting City actors and harming immigrant New Yorkers and their communities.

[2] Tatiana Schlossberg, New York City Police to Be Equipped with Smartphones and Tablets, N.Y. Times, Oct. 24, 2014, available at https://www.nytimes.com/2014/10/24/nyregion/new-york-city-police-to-be-equipped-with-smartphones-and-tablets.html.