177 Livingston Street 7th Floor Brooklyn, NY 11201 (718) 254-0700 info@bds.org

Immigration

News

IN THE NEWS: VOX – A NEW YORK COURTROOM GAVE EVERY DETAINED IMMIGRANT A LAWYER. THE RESULTS WERE STAGGERING.

In conjunction with the release of Vera’s report on NYIFUP and the announcement of their SAFE Cities Network, Vox published an explainer on the project. Simply put, when people facing deportation in immigration court are given an attorney, they are much more likely to win their case. For every twelve immigrants winning their deportation cases in New York’s immigration court, eleven would have been deported without a lawyer. Hear our client Omar Siagha’s story here. 

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON IMMIGRATION HEARING ON SUPPORTING NEW YORK CITY’S DREAMERS AND “DACA-MENTED YOUTH

Lindsey Buller – BIA Accredited Representative

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration

Hearing on

Supporting New York City’s DREAMers and “DACA-mented Youth

&

Resolution 1484-2017

June 19, 2017

Introduction

My name is Lindsey Buller. I am a Board of Immigration Appeals Accredited Representative for the Youth and Communities Project at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 30,000 clients in Brooklyn every year. The Immigrant Youth and Communities Project (YCP) has represented thousands of Brooklyn immigrants in their applications for lawful immigration status and in defending against deportation in non-detained removal proceedings.  Highlights of our work include assisting more than 320 young clients in their pursuit of Special Immigrant Juvenile Status (SIJS), Adjustment of Status, U visas, Deferred Action for Childhood Arrivals (DACA) and other immigration benefits or removal defense, and assisting more than 1,000 Haitian New Yorkers with their applications for Temporary Protected Status, work authorization, and other immigration benefits or removal defense. I thank the City Council Committee on Immigration for the opportunity to testify today about BDS’s support for Resolution 1484-2017 and the challenges that our DACA youth clients face in accessing education and supporting their families.

BDS’s Provision of DACA Services

Since 2009, BDS has counseled, advised or represented more than 7,500 immigrant clients. In 2016 alone, we handled more than 1,500 immigration matters across a full spectrum of services. Our immigration practice is composed of 17 full-time immigration attorneys, two law graduates, five paralegals accredited by the Board of Immigration Appeals, one full-time and one part time social worker, two legal assistants and two Immigrant Justice Corp Legal Fellows representing more than 1,000 immigrant New Yorkers every year. We are a Board of Immigration Appeals-recognized legal service provider.

BDS recently completed a contract with the Division of Youth and Community Development (DYCD) to provide DACA services.[1] Through that contract we established ourselves as a well-known DACA provider in Brooklyn, and we continue to receive DACA and other immigration referrals from community-based organizations and literacy providers, as well as from former DACA clients referring their friends and family members to us. While many New Yorkers with “simple” expanded DACA cases can be helped by community based organizations and programs like Action NYC, we stand ready to help those with cases made more complicated by interactions with the criminal justice system and/or immigration enforcement.

Indeed, BDS and other public defender offices like ours are in a unique position to provide complex immigration legal services for clients who may not otherwise seek immigration assistance but come to us by way of the criminal and family court systems.

To give you an example, BDS’s Padilla practice advises BDS clients facing criminal charges on the ramifications of any plea or conviction on their immigration status.[2] When our Padilla attorneys screen clients we frequently identify family members of our clients who are eligible for DACA.  Consequently, even if the clients who we represent in our criminal defense/family defense cases are ineligible for DACA themselves (either because of a pending case, past criminal history or because they already have status), we are able to flag for clients that their family members are eligible and may call our office for an intake.  Other times, once we start speaking with the client about his or her immigration status, the client will ask if they can send their family members to us for help, too. Thus, through our robust Padilla representation, BDS attorneys and BIA Accredited Representatives earn the trust of our clients who may then actually confide in us to help their family members come out of the shadows and apply for DACA.

Current Climate for Potential DACA Applicants

Since the new administration took office in January, we have had to be far more cautious about submitting DACA applications, especially for young people who have had contact with the criminal justice system.  We were happy to hear the news just this past Friday that DACA is apparently safe, at least for the moment.[3] We hope to see more qualified individuals interested in applying for the program.

Until recently, we had a pretty steady stream of referrals from adult education programs funded by the city. Students would be identified by their teachers as being possibly DACA eligible and referred to us for legal assistance. Recently, however, we have noticed a bit of a downtick in these types of referrals.  This may also be attributable to the general chill within immigrant communities after the presidential election.

BDS DACA Client Story

Sophia is a 19-year-old young woman from Mexico who has been living in the U.S. since she was 9 years old.  She submitted a DACA application with the assistance of an unqualified tax preparer and was denied.  Fortunately I picked up her case through the Youth and Communities Project and we were able to submit a second application on her behalf, which was approved just before she graduated from high school.

Sophia was an exemplary student in the New York City public school system.  A letter of support from her high school social studies teacher states: “While many of our American-born students may take their education for granted, Sophia does not.  They reality of her circumstances does not allow for this because she knows she has the most to gain from the American education system, but also, the most to lose if she is not able to continue her studies.”

Sophia just finished her first year at Guttman Community College in Manhattan and hopes to transfer to John Jay or Hunter College.  She is pursuing an Associate’s degree in Liberal arts & Humanities.  While this is a very positive development for Sophia, her lack of immigration status means she is ineligible for financial aid. In her words, “Scholarships are hard to get, which makes it ten times harder for me since many require community service, and I already work 3-4 days a week. I am a full time student so it is very challenging. My parents have been saving money and I am enrolled in payment plans in order to pay the tuition. I work in order to buy books, use the money for tuition and any other expenses that come across.”

Sophia is representative of many of our young clients who suddenly find themselves the only members of their family with employment authorization.  They struggle to balance the desire to help support their families financially with their desire to pursue higher education.  Young people in New York should not be forced into the role of primary breadwinners for their families, and we encourage City Council to do everything you can to help support students like Sophia who want nothing more than to pursue their dreams in this country.

Resolution 1484-2017

Sophia’s story, and that of dozens of other BDS clients, exemplify why the City Council should adopt Resolution 1484-2017 calling on the state and federal government to extend protections for undocumented youth by passing the New York State DREAM Act of 2017 at the state level, as well as the Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act of 2017 at the federal level.

New York City does not set federal immigration policy or determine statewide funding for higher education. However, the City Council can use its moral authority as a sanctuary city to call for improved opportunities for all New York residents, no matter where they were born. We will all be stronger and safer if our young people have the opportunity to work and go to school. We strongly urge you to support this resolution to send a powerful message to the state and federal legislatures that New York City believes in the strength and possibility of our immigrant communities.

Questions?

Please feel free to contact me at lbuller@bds.org or 718-254-0700 ext. 309.

[1] It is our understanding that future RFPs related to DACA/DAPA services will be made through the Mayor’s Office of Immigration Affairs and/or Action NYC.

[2] In 2010, the U.S. Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. See Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

[3] See, e.g., Michael D. Shear & Vivian Yee, ‘Dreamers’ to Stay in U.S. for Now, but Long-Term Fate is Unclear, N.Y. Times, June 16, 2017, available at https://www.nytimes.com/2017/06/16/us/politics/trump-will-allow-dreamers-to-stay-in-us-reversing-campaign-promise.html?_r=0.

ANDREA SAENZ SUBMITS WRITTEN TESTIMONY TO THE NEW YORK CITY COUNCIL EXECUTIVE BUDGET HEARING ABOUT THE NEW YORK IMMIGRANT FAMILY UNITY PROJECT (NYIFUP)

TESTIMONY OF:

Andrea Sáenz – Supervising Attorney, Immigration Practice
BROOKLYN DEFENDER SERVICES

Presented before
The New York City Council
Executive Budget Hearing
May 25, 2017

I. Introduction

My name is Andrea Sáenz. I am the supervising attorney of the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family and immigration defense, civil legal services, social work support and advocacy to more than 30,000 indigent Brooklyn residents every year. Since 2009, BDS has counseled, advised or represented more than 7,500 immigrant clients. In 2016 alone, we handled more than 1500 immigration matters across a full spectrum of services. I thank the City Council for this opportunity to submit testimony about the Mayor’s Office’s proposed changes to the NYIFUP program.

The New York Immigrant Family Unity Project (NYIFUP) is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. NYIFUP’s mandate of universal representation is the model upon which all other detained deportation representation programs in the nation are based. I strongly urge the Council and the Mayor’s Office to maintain the current parameters of the program and increase funding so that we can continue to provide universal representation to the rising numbers of immigrants who are being arrested and detained as a result of President Trump’s enforcement priorities. NYIFUP is a profound example of this City’s commitment to immigrant New Yorkers. Any changes to the existing model will be a dramatic step back from the values of due process for all that , by virtue of creating an infrastructure of accountability for prosecutors and judges, have powerfully exposed the injustice of immigration detention and rapid deportation.

II. Background on NYIFUP

   a. The impetus for the creation of NYIFUP

Despite facing the significant possibility of permanent exile from the United States, immigrants in deportation proceedings are not constitutionally entitled to a lawyer if they are unable to afford one. As a result, most immigrants across the country facing deportation are unrepresented. This leads to people being deported who have a right to remain in the country.

Prior to the creation of NYIFUP, only 33% of detained immigrants in New York City had counsel at the time their cases were completed. In contrast, nearly 80% of non-detained immigrants had representation. A 2011 study found that of New York City immigrants who were unrepresented and detained, only 3% obtained successful outcomes, as compared to the majority of respondents who were represented and non-detained who received successful outcomes in 74% of cases.
New York City recognized the injustice of the lack of counsel for detained immigrants and took the historic step of funding free lawyers for poor detained immigrants in removal proceedings. The New York Immigrant Family Unity Project was never simply about the people detained, but was created to strengthen families and communities, as the program’s name suggests. As the Vera Institute of Justice notes, between 2005 and 2010, more than 7,000 U.S.-citizen children in New York City lost a parent to deportation. In addition to the financial hardship caused by the loss of a primary breadwinner, these children have been shown to suffer significant emotional and psychological effects. The legal representation provided by NYIFUP supports New York’s vibrant immigrant community by reducing unnecessary detention and unjust deportation of individuals who have strong ties to their communities.

   b. How NYIFUP works today and the program’s successes

BDS is proud to be a NYIFUP provider, along with The Bronx Defenders (BXD) and The Legal Aid Society (LAS). Since the project’s inception three years ago, BDS NYIFUP attorneys have defended more than 700 people in deportation proceedings. The improved outcomes for detained people represented by NYIFUP attorneys have far exceeded initial expectations: as of December 2015, 52% of pilot clients have been reunited with their families. During the pilot assessment period, NYIFUP attorneys won 71 percent of their trials. NYIFUP is projected to increase the percentage of immigrants who will win the right to remain in the United States by 1,000 percent, compared with prior success rates for detained, unrepresented immigrants.

NYIFUP providers staff intake days at the Varick Street Immigration Court (New York City’s detained docket) 2-3 times per week, seeing all individuals who are appearing for the first time before the court. The providers do a one-page income assessment to determine whether a person qualifies for NYIFUP representation. People who can afford their own attorneys or who already have an attorney are not provided a NYIFUP attorney. The vast majority of detained people who appear at intake qualify for a NYIFUP attorney based on their indigency.

NYIFUP currently represents any detained immigrant who appears at the Varick Street courthouse and meets the income requirements. Judges led the way in calling for the creation of NYIFUP, both to limit injustice and ensure that people with lawful claims to remain in this country were able to do so, and also to increase court efficiency. The goal of the program was never to exclude people from representation, but rather to recognize that if everyone is represented, the system functions more efficiently and justly.

Some of the people that NYIFUP represents resided in Long Island or Westchester County prior to their arrest by ICE, but they are not excluded from representation under the NYIFUP model because the goal was always to promote universal representation for all individuals detained and facing deportation in New York City. Governor Cuomo decided to replicate the NYIFUP model when he set aside $4 million in the FY2018 state budget to ensure that detained New Yorkers in all upstate immigration courts will be eligible to receive legal counsel during deportation proceedings. The state model is also based on venue, rather than client residence, and will cover all individuals detained and facing deportation in four upstate immigration courts. By ensuring that people are not excluded from NYIFUP because of geographic considerations, with the addition of the FY18 funding from the state legislature, New York will be the first state in the nation to ensure that all people who are detained and facing deportation in any immigration court in New York State have a lawyer to help them assert and defend their rights. Brooklyn Defender Services calls upon the Council to maintain the current parameters of the program to ensure that all people whose cases are heard in New York City receive due process.

   c. NYIFUP currently does not discriminate against people if they have a criminal record

People are not excluded from NYIFUP representation because of a criminal record. Indeed, from the outset, NYIFUP contracts were given to immigration attorneys within public defender offices because the function is similar and because NYIFUP providers’ expertise in criminal law improves the quality of representation in cases where crim-immigration issues are central. City Council recognized that people with criminal records were the most likely to be detained; the most likely to be deported without legal representation; and the least likely to obtain representation from organizations that pick and choose clients, in part because people with criminal records often have complex defenses in a deportation case. The City recognized that public defenders are best situated to assess the veracity and significance of a charge and to challenge or appeal the charge or conviction if they find it was unlawful or improper.
The whole point of a universal representation system is to ensure that anyone who may have the chance to stay with their family is given the full chance to litigate that right. It also reflects the very American value that even if a person does not have a defense, they deserve someone in their corner to advise them and give them a voice in the proceedings.

NYIFUP has found great success in representing New Yorkers, no matter a person’s criminal record. Over the past three and a half years, we have helped multiple U.S. citizens avoid wrongful deportation, prevented torture victims from being returned to their home countries where they would face certain death, and prevented deportations based on crimes that never actually happened. Some examples of clients who may have been denied representation based on a criminal history carve-out, but who had extremely compelling cases, are here:

Christopher A U.S. Citizen Released After Months of Zealous Representation.
Christopher left his home country as a young boy because he was afraid for his life and came to the US to find his father, a U.S. citizen who worked on military ships. Christopher struggled with homelessness and spent time in jail. In 2016, he was detained by ICE, devastating his U.S. citizen wife who depended on him financially and emotionally. His NYIFUP attorney realized that under the complex case law on citizenship, Christopher had derived citizenship when his father became a U.S. citizen. After months of factual development, his attorney won a contested evidentiary hearing about key facts in his childhood which allowed her to then file a complete motion to terminate his case on account of his U.S. citizenship. Days after this filing, ICE released Christopher from detention, allowing him to finish his case while working and supporting his family. He would never have known the law he needed to fight his case without an attorney by his side.

Karam Safe from Torture and Restarting His Life.
Karam is an older man who has lived in the United States as a green card holder since he was five years old. He grew up in a deeply homophobic neighborhood and culture, ashamed of his identity as a closeted gay man. Between this challenge, his learning disabilities, his depression, and his father’s abandonment, Karam developed a substance abuse problem and picked up several felony convictions. After being released from prison, he was arrested by ICE. In NYIFUP intake, Karam told the attorney meekly, “It’s OK, I know you’re not going to take my case.” NYIFUP counsel told him we would take his case, and after hard work building a strong record, Karam won Convention Against Torture protection based on the torture or death he would face as a gay man with his specific limitations if deported to his home country. He is now a full-time caretaker for his elderly mother who is fighting cancer, and has a positive outlook on himself that he never had before.

Marco A Young New Yorker Nearly Deported for a Turnstile Jump That Didn’t Happen.
Marco is a permanent resident with cognitive limitations. He had early struggles as a teenager that led to him being convicted of felony offenses, although he received youthful offender status on those. ICE placed him in deportation proceedings. Since the law does not allow ICE to deport Marco based on youthful offender cases, they charged him as subject to deportation for a single turnstile jumping conviction from when he was 16. While he was unrepresented, Marco was actually ordered deported on this charge. His case was later re-opened, and subsequently, Marco’s lawyer realized that Marco’s criminal records were wrong, and that this case was a mere disorderly conduct violation, not a turnstile jumping. ICE counsel refused to correct their mistake, and Marco’s attorney obtained new certified dispositions and filed a written motion to terminate his case. The immigration judge agreed and terminated the case, and Marco no longer faces deportation as a result of simple errors in his records.

As these examples show, a person’s criminal record, even if they have been convicted of serious felonies, does not preclude someone from relief from deportation under our immigration laws. Yet none of our clients would have been able to make these complex legal claims on their own without the assistance of an experienced deportation defense attorney. By not limiting who has a right to counsel, NYIFUP currently ensures that people are entitled to stay in the U.S. with their families may do so. Those who do not have a legal path to remain here are assured that they had qualified counsel review their case and provide them and their families with information about their legal options as they navigate one of the most difficult decisions of their life, to accept an order of deportation.

III. Increasing Immigration Enforcement

The NYIFUP Coalition jointly requests $12,000,000 to fully fund the New York Immigrant Family Unity Project in FY2018 to ensure that every detained New Yorker has legal representation when facing deportation.

a. Rising caseloads

Immigration arrests are up 40% nationwide, as ICE ramps up enforcement efforts since President Trump took office. This figure is consistent with what we have been seeing on the ground at intake. Not only have caseloads been particularly heavy this fiscal year, but the Varick Street Court began running initial appearance dockets three times a week instead of two times a week in May, which will cause an increase in intake of up to 50% over previous intake levels. Indeed, we have had to make the difficult decision to stop picking up cases at intake in the month of June because we have already exceeded out caseloads targets as determined by the City for FY17. This means that when detained people appear in immigration court for the first time after May 25th, we will be unable to take their cases because we are over the contractual maximum. During this hiatus from intake, NYIFUP attorneys will continue to go to Varick to do Know Your Rights presentation, provide individual advisals, and request adjournments, but will not pick up new cases. Unless the City provides more money for FY18 to meet the increased need, we will not be able to tell these people that we will be able to take their cases at a later date. The need for City support of NYIFUP has never been more acute.

To make matters worse, not only are we seeing more cases, but we see that ICE has changed their policies in the courtroom, making it more difficult for us to obtain the kinds of favorable outcomes that we received last year.

   b. Asylum seekers no longer being released on bond

For existing cases, we are seeing decreases in the use of prosecutorial discretion and discretionary release. From February to mid-March, we did not have an asylum seeker released from ICE custody for a period of nearly seven weeks. It appears that the White House’s January 25 executive order on border enforcement had the effect of ICE refusing to release detained asylum seekers even where they had passed an initial screening interview and had a sponsor or family member with lawful status ready to house and support them. Other immigration legal service providers across the country also report that ICE has virtually stopped granting detained immigrants bond or parole, keeping them incarcerated throughout their cases unless they successfully appeal to an immigration judge. Since March, we have had a few releases since starting to file federal habeas corpus litigation against this practice, but remain concerned that going forward ICE’s default will be to detain everyone, including asylum seekers, parents, and victims of violence and trauma, and to fight release however we seek it.

   c. ICE targeting people who won relief but have not yet received their visas or green cards

We are also seeing that NYIFUP clients who have been granted relief but have not yet received their green cards are being sought out by ICE and re-arrested. For example, we represent a 16-year-old client from Central America who has an approved Special Immigrant Juvenile Status (SIJS) application who was arrested by the ICE gang unit and is now is a secure juvenile detention facility. While his SIJS application was approved, he has not yet received his visa number from USCIS. It is unclear to us why he was taking into detention by ICE, as he was not arrested by the NYPD or did not try to re-enter the U.S., two reasons that people are sometimes re-detained after release.

   d. Arrests in the courthouses

Our immigration clients, like our criminal defense clients, are scared to go to immigration court. ICE agents now roam the hallways at 26 Federal Plaza and we have observed ICE agents arresting people in the courts. This was uncommon in recent years. For example, BDS represents a client who was re-detained by ICE when he appeared for an immigration court date last year. How can we adequately counsel our clients about the importance of attending their immigration court appearances to fight against deportation when they face the threat of coercive immigration detention every time they enter the courthouse doors? Once detained, people depend on NYIFUP to represent them to help them challenge their detention.

   e. ICE OSUP check-ins

In some cases, ICE may decide not to execute a final removal order and might instead issue an “Order of Supervision,” or OSUP. A “post-order-of-removal” Order of Supervision may be issued under limited circumstances, such as when ICE determines the individual cannot be removed due to his or her country’s refusal to accept them, or when it is otherwise impracticable or contrary to the public interest to remove the individual. An Order of Supervision is considered to be a “humanitarian act” on the part of ICE, and may be available if the non-citizen is the primary care giver to a child with a medical condition, or if they themselves are receiving medical treatment for a serious condition, etc. The Order of Supervision will direct the non-citizen to appear at regular ICE check-ins, usually every few months and at least once a year.

Our clients who have been attending regular OSUP check-ins for years are now terrified to appear before ICE. One of our NYIFUP clients who was released from detention because he had a heart attack while in custody was recently hospitalized because of the stress and fear of deportation. Clients who previously checked in once or twice a year are now being asked to return in a couple of weeks or a month with their passports, ostensibly to facilitate deportation.

Our attorneys and office staff who are already overworked are doing their best to accompany our clients to OSUP check-ins, but we simply do not have the capacity to meet the need and quell the well-founded fears of our clients and threats of detention and deportation.

   f. In the Community

i. Clamoring for Know Your Rights

Since the presidential election last fall, our office has received increasing requests from the community to present Know Your Rights trainings to the community. Since the first immigration Executive Order was announced we are now receiving near daily requests for assistance from elected officials, community-based organizations, city agencies, religious institutions and the press.

ii. Daily Calls from Current and Former Clients

All of our attorneys and paralegals have seen a huge increase of panicked calls from our clients, current and former, about what to do if ICE is at their door, whether or not they can travel, what they should be doing with their U.S. citizen children, whether they should appear in court, requesting immigration legal services for their loved ones, and more.

In short, our communities are crisis and need the support of legal service providers more than ever. We want to continue to support all of our former and current clients, as well as serve more people, but our capacity is limited by the resources currently available to us.

IV. The Mayor’s Office’s Proposed Changes to NYIFUP

At the Executive Budget Hearing on May 11, 2017, the Mayor’s Office of Immigrant Affairs testified that the Mayor intends to allocate $16 million to immigration legal services, with an as yet undetermined amount to be earmarked for deportation defense. They also indicated that the Mayor’s plan would exclude people who have any of the 170 criminal convictions listed in the City detainer law from representation under any baselined city funding, and potentially exclude people who are not New York City residents.

We are deeply concerned about the Mayor’s proposal to limit NYIFUP’s universal representation model and deny certain categories of people the right to an attorney. It is morally wrong to allow any person who is detained in New York City immigration courts to be excluded from representation. Once we start picking and choosing who will get an attorney, we have unequivocally altered the fundamental purpose of NYIFUP, which is to provide everyone with a chance to make their case to the court that is deciding their fate.

   a. The types of convictions the Mayor has used to exclude our fellow residents from representation are not necessarily serious or recent

The list of 170 excludable offenses is a very broad list and it includes many cases that are not serious. Some examples from Brooklyn Defender Services’ own experience are as follows:
Assault in the 2nd degree:
o An immigrant mother used corporal punishment, but did not injure her child, not knowing that the laws and cultural norms in the U.S. are different from her country of origin.
o A client got frightened when a plainclothes police officer approached to arrest him. When the client ran, the officer fell and skinned his knee; the client was charged with assault 2nd because there was injury to an officer.
o A client had a verbal argument with a 66-year-old man who didn’t like that the client was smoking a cigarette. During the argument, the client pushed the man away, and the man fell to the floor. When the man told police his leg hurt, client was charged with assault 2nd because the complainant was 65 or older.
Criminal possession of a weapon 3rd:
o A gun was found in the closet in one room of an apartment. Every resident of the home, including the tenant’s mother and grandmother, was arrested and charged with possession of the gun.
Burglary in the 2nd:
o A homeless client went into the lobby of a building and took a trash bag. Because a lobby is considered a “dwelling,” the client was charged with felony burglary of a dwelling.
Robbery in the 2nd:
o An after-school fight turned into a “robbery” when one of the participants in the melee dropped his phone and another person picked it up.
Robbery in the 3rd:
o A homeless man pursued a couple for two blocks after asking them for spare change. No weapon or actual threat is required for this crime, so police often charge a person with felony robbery for “aggressive begging.”

   b. There is no time limit on the Mayor’s stated policy, punishing even people with very old convictions, who may have a chance to fight deportation but would not be able to mount a defense.

For example, a father who was brought to the U.S. as a child, got into trouble as a teenager, and is now in his 40s with a job and children of his own, would be unable to make his case that he should be allowed to stay in the country under discretionary relief. Currently, a qualified NYIFUP attorney would ensure that every legal and factual issue is investigated and that all the relevant information is before the court.

By foreclosing legal representation in the first instance, anyone with a compelling story will be summarily deported without having a chance to explain their circumstances. Prior to NYIFUP, claims of this type simply did not succeed when people were unrepresented. In the example of the father above, he was never incarcerated, successfully completed probation, and attended college. He now works, pays taxes, and attends church. Without an attorney, this man would be summarily deported, at great loss to his family and community. Many of the most compelling cases fall within the technical definition presented by the Mayor and may not qualify for NYIFUP if his policy is enacted as stated.

   c. The proposed residency requirement would mean that many people who are intimately connected to the fabric of New York City would be excluded from representation simply because they cannot afford City rents

New York City is the life center for all of the surrounding areas. Our city benefits significantly from the labor and investment of the millions of people who come to our City every day to work. Manhattan alone sees its population double during the day, from 1.6 million to 3.1 million, because of the influx of commuters from the other boroughs and outside the City. As rents rise, more and more vulnerable groups are being forced out of their communities, out into Westchester or Long Island so that they can afford to put a roof over their families head, even if it means hours-long commute every day to the City to work. The vast majority of our clients are housing insecure, and many are homeless, or spend time at the homes of friends, because they cannot afford city rents. Many of our NYIFUP clients have children and family members who live in New York City, even if they themselves did not reside within the five boroughs when they were arrested by ICE.

The purpose of NYIFUP has always been to promote the safety and well-being of New York’s immigrant communities, including U.S.-citizen children of immigrants, with the recognition that helping adults who have the right to stay in this country and provide for their families helps the community as a whole. By limiting the program to people whose last address was located in the City, we damage the universal representation mandate that is premised on the recognition of the broader benefit that NYIFUP services provide to our immigrant communities.

V. The Critical Importance of NYIFUP’s Universal Representation Mandate

Universal representation protects the most vulnerable New Yorkers, helps to combat racial disparities, and sends a strong message to our immigrant communities that the City will support and protect them against federal policies that are explicitly and intentionally promulgated to exclude and deport immigrants of color from our country.

   a. The most vulnerable New Yorkers will pay the highest price without counsel

People who are the youngest, the oldest, the mentally ill, the sick and disabled are at the most risk if they do not have an advocate to look at their case and determine if they can avoid deportation, usually to a country that does not have medical care to meet their needs. If any bar to representation is created, then those who need an advocate the most will not even get an attorney to look into their situation. Currently, NYIFUP attorneys make sure that people who may not be fully competent due to their age, health or other circumstances are protected in the legal proceedings and in the community.

Even if a vulnerable person ends up being deported, NYIFUP staff are able to expedite the deportation, reducing an unnecessarily jail stay, and can also coordinate with the client’s family to make any arrangements possible, deliver identity documents or belongings, and notify relatives in the home country.
b. Due to the racial disparities in the criminal justice system, the people most likely to be arrested, overcharged, placed in jail on bail and forced to accept a plea that would not minimize collateral consequences are overwhelmingly black and Hispanic.

It is important to view this policy in the context of the racial disparities in the criminal justice system. A black or Latinx person is more likely to be arrested for something that a white person would not be arrested for. In the examples of 170 crimes that would be excluded under the Mayor’s proposal, it is unlikely that a white mother who used corporal punishment would be arrested. It is also unlikely that a group of kids fighting after school would result in arrests in a white community. Certain groups of people are more likely to be saddled with one of the convictions in the detainer list because of their ethnicity. This is compounded by the fact that the person is likely to be in jail solely because they cannot afford bail. If any resolution of the case becomes available that would allow the person to go home, he or she is likely to accept it even if there is a chance of an immigration consequence.

Under the Mayor’s proposal, attorneys who are ready, willing and able to make sure that after all that has already happened to the person, they are not unfairly deported, would decline to even interview the person to see if they have any remedy before the Immigration Judge. This compounds the dramatic racial disparities that exist right now rather than starting to even the playing field for people of color.

   c. New York City’s clear message to all New Yorkers that if their loved one is locked up and facing deportation, they will not be alone fighting their case is eviscerated by anything less than universal representation

Over the past four years, the NYIFUP providers have shown the immigrant community that NYC stands by them and will ensure that they and their loved ones are treated fairly and with dignity. Even in cases when we cannot avoid deportation for a client, the fact that the information is clearly explained, family members are apprised about what is happening, and community organizations are clear who to call for help sends a powerful message to the community about what New York City stands for.

With families, individuals and community-based organizations unable to assess eligibility, the work done to support the immigrant community will be lost. The uncertainly and anxiety of the immigrant community will result in unscrupulous people taking advantage of people, many of whom would have been eligible for NYIFUP.

VI. Conclusion

NYIFUP has never been more important. We are a human shield for our clients, doing everything in our power to show them compassion in a system that increasingly views our clients as deportable others – “criminals” or “aliens” with rights that can and are regularly trampled on. Even when we lose our client’s case, we provide them with the opportunity to share their story with the prosecutor and judge and make the case why they deserve to remain in this city with their family and community.

We ask that the City Council reject the Mayor’s proposal to eliminate NYIFUP’s mandate of universal representation and instead, continue the program’s eligibility requirements as they currently exist while increasing funding to meet the increased need of immigrant New Yorkers in detained deportation proceedings.

If you have any questions, please feel free to contact me at 718-254-0700 ext. 434 or asaenz@bds.org. Thank you.

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.

News

IN THE NEWS: VILLAGE VOICE, “YES, NEW YORKERS CAN BE DEPORTED FOR JUMPING A TURNSTILE”

Runs With Scissors / Flickr

Village Voice: “Yes, New Yorkers CAN Be Deported For Jumping A Turnstile”

“With or without a detainer, ICE can arrest people at home, work, and court, detain them or release them, and give them a court date for deportation proceedings in which their charges are based on offenses like fare-evasion and counterfeit handbags,” [Andrea] Sáenz [supervising immigration attorney for Brooklyn Defender Services] says. “This absolutely happens to New Yorkers, even if the NYPD is not aware of it. This is a perfect example of how ICE detainers are only one link in a chain that ties our clients to the detention and deportation system.”

Read the full story in the Village Voice here.

 

News

BDS JOINS BLACK ALLIANCE FOR JUST IMMIGRATION’S “KNOW YOUR RIGHTS” PANEL

On June 9th, BDS’ Nyasa Hickey was on a panel with the Black Alliance for Just Immigration (BAJI) as part of their “Stronger Together” Know Your Rights training. As a response to recent ICE home raids that have hit Black immigrants in New York City particularly hard, BDS joined BAJI and other immigrant advocates at Mt. Zion Church of God 7th Day in Brooklyn to provide information on immigrant rights and answer community member questions.
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TESTIMONY AT NY CITY COUNCIL COMMITTEE ON IMMIGRATION HEARING ON RESOLUTION 928A-2015

TESTIMONY OF:

Nyasa Hickey – Immigration Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration Hearing

on Resolution 928A-2015

April 5, 2016

Introduction

My name is Nyasa Hickey. I am a practicing immigration attorney at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. I thank the City Council Committee on Immigration for the opportunity to testify today about BDS’s support for Resolution 928A-2015 and the impact that Deferred Action for Childhood Arrivals (DACA) program and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program would have on the communities that BDS serves.

United States v. Texas

It is critical that the United States Supreme Court issue a decision in United States v. Texas that overturns the Fifth Circuit’s ruling in Texas v. United States and upholds the implementation of President Obama’s expanded DACA and DAPA programs. Not only will this expand the benefits and protections of the existing DACA program to millions more immigrants nationwide, it will set a precedent encouraging the continuation of this program until comprehensive immigration reform occurs. BDS is deeply concerned about the hundreds of young New Yorkers that we assisted in requesting DACA relief in the original program who, by applying for DACA, exposed themselves and their families to the Department of Homeland Security for future deportation if subsequent administrations choose to terminate the DACA program and order ICE to roundup and deport former DACA recipients.

We ask the Committee on Immigration to pass Resolution 928A-2015 urging the U.S. Supreme Court to uphold the implementation of expanded DACA and DAPA. New York City and the Council have already demonstrated their deep support for President Obama’s programs by creating and funding Action NYC, a critical new initiative that is already facilitating the City’s response to DACA/DAPA by connecting New Yorkers to free or low-cost immigration legal services. We hope that when a favorable decision comes down, the City Council will work with the Mayor’s Office of Immigrant Affairs and Action NYC to ensure that legal services providers are funded to assist with complex DACA/DAPA requests, not just the simple ones.

BDS’s Provision of DACA/DAPA Services

Since 2009, BDS has counseled, advised or represented more than 6,500 immigrant clients. In 2015 alone, we handled more than 1,500 immigration matters across a full spectrum of services. BDS’ vibrant Immigration Practice is composed of 17 full-time immigration attorneys, five paralegals[1], and four legal assistants. We are a Board of Immigration Appeals-recognized legal service provider. We defend detained clients facing deportation, clients identified through our criminal and family defense dockets, and clients referred from our community partners or who connected with us through community outreach clinics.

BDS recently completed a contract with the Division of Youth and Community Development (DYCD) to provide DACA services.[2] Through that contract we established ourselves as a well-known DACA provider in Brooklyn, and we continue to receive DACA and other immigration referrals from community-based organizations and literacy providers, as well as from former DACA clients referring their friends and family members to us. While many New Yorkers with “simple” expanded DACA/DAPA cases can be helped by community based organizations and programs like Action NYC, we stand ready to help those with cases made more complicated by interactions with the criminal justice system and/or immigration enforcement.

Indeed, BDS and other public defender offices like ours are in a unique position to provide complex immigration legal services for clients who may not otherwise seek immigration assistance but come to us by way of the criminal and family court systems.

We estimate that at least 1,000 and up to 4,000 of the 40,000 clients that BDS represents every year could be eligible for expanded DACA or DAPA. We also represent a significant number of U.S. born children of immigrant parents who we are in a unique place to identify and advise about DAPA.

To give you an example, I work in BDS’s Padilla practice, meaning that I work with criminal defense lawyers to advise BDS clients facing criminal charges on the ramifications of any plea or conviction on their immigration status.[3] Often when I screen clients through our Padilla practice I am able to identify family members of our clients who are eligible for DACA/expanded DACA/DAPA.  Consequently, even if the clients who we represent in our criminal defense/family defense cases are ineligible for DACA/DAPA themselves (either because of a pending case, past criminal history or because they already have status), I am able to flag for clients that their family members are eligible and may call our office for an intake.  Other times, once I start speaking with the client about his or her immigration status, the client will ask if they can send their family members to us for help, too. Thus, through our robust Padilla representation, BDS attorneys earn the trust of our clients who may then actually confide in us to help their family members come out of the shadows and apply for DACA/DAPA.

Funding

The City should provide funding for BDS and other defender offices to do screenings of all of our clients for DACA/DAPA eligibility–and through those screenings we may also obtain access to our clients’ family members. Right now we only have the capacity to do intakes of those clients who are facing potential immigration consequences from their family/criminal defense case. If we had more funding we could set up a “refer all” policy at BDS to refer all undocumented clients (as well as LPR or USC clients who have undocumented family members) to BDS attorneys for a DAPA/DACA screening of themselves and their families.

Our office is perfectly situated to assist our clients in-house with expanded DACA and DAPA requests that are more complicated than cases that will be handled by other City providers. Unfortunately, our clients’ justice involvement complicates otherwise straightforward DACA, expanded DACA or DAPA requests. Also, DAPA, which is a form of relief for parents of U.S. citizens, are older than the young people formerly eligible for original DACA, and consequently many have backgrounds that involve criminal and family court issues. Smaller legal service providers do not have the resources or criminal law expertise and familiarity with family and criminal courts that public defender offices have that allow us to efficiently handle these cases in-house.

Conclusion

We look forward to working with the City to ensure that our clients with former or pending criminal justice-involvement are not left behind when these programs finally roll out so that all immigrant New Yorkers have access to the quality immigration legal services that define our City.

[1] One of our paralegals is fully accredited by the Board of Immigration Appeals (BIA). The other four paralegals on our Immigration Practice Team are partially accredited by the BIA.

[2] It is our understanding that future RFPs related to DACA/DAPA services will be made through the Mayor’s Office of Immigration Affairs and/or Action NYC.

[3] In 2010, the U.S. Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel. See Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

TESTIMONY OF NYASA HICKEY AT NY CITY COUNCIL COMMITTEE ON IMMIGRATION BUDGET HEARING

TESTIMONY OF:

Nyasa Hickey – Immigration Attorney

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration

Budget Hearing on

March 28, 2016 

I. Introduction

My name is Nyasa Hickey. I am a practicing immigration attorney at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. I thank the City Council Committee on Immigration for the opportunity to testify today about the important work that immigration legal service providers do for New York City’s diverse residents.

We cannot express enough how thankful we are to this City Council and this City for its visionary investment in legal service programs that have made New York the nation’s leader in promoting access to justice and opportunity for its immigrant communities.  BDS remains honored to work with this City Council to serve as a legal service provider under one of these programs—the New York Immigrant Family Unity Project (NYIFUP).  NYIFUP, as the nation’s first public defender system for detained immigrants facing deportation, promotes family unity and a more fair and just process for our immigrant New Yorkers.

My written testimony today will provide the Committee with updates about some of the innovative immigration legal work that City-funded service providers have accomplished in the last year. I will also identify additional ways that City Council, service providers, and the community can work together to better serve New York’s immigrant communities. Most critically, this includes continuing to fund organizations like BDS and other members of immigrant service provider coalitions to provide complex immigration services.

II. Current Immigration Legal Services Landscape in New York City

New York City is the nation’s leader in supporting immigrant communities, in large part because of the advocacy and funding provided by the City Council.  The Council currently funds NYIFUP, which is among its most ground-breaking immigrant legal service initiatives and is described in greater detail below.  The Council has also funded the Immigrant Children Advocates Relief Effort (ICARE), in partnership with private funders, to assist unaccompanied children in removal proceedings and on the priority dockets of the New York immigration court. A third City initiative, ActionNYC, is funded through the Executive Budget and in partnership with the City Council, and is the nation’s largest investment by a municipality to prepare for executive action. Action NYC has created a city-wide system rooted in immigrant community organizations to provide quality immigration-related information and affirmative immigration benefit support—at least for simple applications such as DACA, TPS, I-130 petitions, straightforward I-485 adjustment of status applications, greencard renewals, FOIAs, and work authorization applications—to thousands of New Yorkers. Finally, our understanding is that the City’s Immigrant Opportunities Initiative (IOI) will remain an additional source of funding for the provision of immigration legal services, although current and prospective providers under the IOI await further clarification from the City as to when and how IOI funding will be allocated in coming years.

The need for all this funding has never been more acute. The years 2009 to 2016 have brought more immigration enforcement than this country has previously ever seen.  Nationally, the Department of Homeland Security (DHS) officials reported early this year that they intend to continue the raids, hoping to send a signal and prevent a repeat of the surge in illegal border crossings. Although the numbers dipped last spring, a new spike saw more than 10,000 children reach the border in October and November alone.   Immigrant families across the country and in New York City experienced widespread panic in the wake of DHS’s announcement.  Fear of detention led to children staying home from school and parents not reporting to work and contributed to distrust of all law enforcement.[1]  Although “surge”-related DHS arrests have not been confirmed yet in New York City, just over the past year we have seen a dramatic increase in the rates of home arrests where ICE apprehends New Yorkers at home, often in pre-dawn hours, sometimes with misleading pretenses to locate targeted individuals.[2] ICE has also arrested clients in the courts as well as in sensitive locations such as homeless shelters.[3] Long-time and new residents of our city alike are facing deportation in high numbers.

Furthermore, over the past several decades, the immigration detention and deportation laws have become increasingly intricate and complex.  These laws are extremely harsh, often mandating deportation and detention for individuals with the most minimal criminal records. It is extremely difficult, if not impossible, for immigrants and their families to navigate on their own in most deportation cases.  Not until New York City launched NYIFUP in 2013 was any city resident ensured the right to assigned counsel in her deportation defense if she could not afford one.

III. The need for additional funding for complex immigration cases

As described above, New York City’s current funding landscape for immigration legal services includes resources to protect the due process rights of detained immigrants in deportation proceedings (through NYIFUP) and non-detained unaccompanied minors and adults with children on the “surge” dockets at 26 Federal Plaza (though ICARE). It also includes (through Action NYC) resources to help thousands of immigrant New Yorkers to identify what options they may have to obtain lawful immigration status and to provide them with affirmative immigration application assistance for simple cases such as DACA, TPS, I-130 petitions, straightforward I-485 adjustment of status applications, greencard renewals, FOIAs, and work authorization applications.

There is a very noticeable gap in funding, however, for immigrant New Yorkers to access quality legal services for other, more complex immigration cases.

Action NYC educates undocumented communities about immigration options and provides navigators to assist with straightforward immigration applications. Everywhere they go, these navigators are finding immigrants with complex cases who need legal representation.

Action NYC is a great start, but with existing immigrant legal services programs at capacity, thousands lack the representation needed to retain or obtain lawful status given the complexity of their legal issues.

These more complex immigration cases that require competent counsel include but may not be limited to:

  • Affirmative benefits cases that routinely involve more substantial attorney or BIA-accredited representative work, such as Special Immigrant Juvenile cases; U visas, S visas, and T visas; VAWA self-petitions; I-485 adjustment of status applications that also require I-601 waivers (of unlawful presence or criminal inadmissibility bars) or I-212 waivers (for prior deportation/removal cases) or other waivers; and Asylum;
  • Non-detained removal defense cases (other than those on the “surge dockets” that may obtain counsel through ICARE);
  • Cases involving appeals to the Board of Immigration Appeals (BIA), the Administrative Appeals Office (AAO), or state or federal courts where necessary or appropriate, such as an appeal to a higher state court upon the denial of a family court guardianship petition, or a federal habeas petition or Petition for Review;
  • Immigrant workers’ rights cases; and
  • Other complex affirmative immigration benefits cases, including those that may otherwise be more straightforward applications but that present complications such as evidentiary issues or criminal histories.

The City should fill this gap by increasing funding for non-profit immigration legal service providers like BDS across the city to provide this immigration assistance in these complex cases.

We respectfully submit that, in doing so, the City should be mindful of the fact that complex immigration cases often take years and are resource-intensive. Ensuring continuity of quality representation means, ideally, funding multi-year contracts with experienced legal services providers and paying a case rate commensurate with the work involved.  This investment will pay off. Every deportation prevented or Green Card obtained means tens of thousands of dollars in wages, taxes, and federal benefits that will flow into and through our communities.[4]  These cases save lives, as people fleeing violence abroad, or vulnerable to exploitation here, are granted a safe harbor and a new beginning.

BDS is a proud member of LEAP, a diverse coalition of direct civil legal services providers.  LEAP members work collaboratively to increase the availability and quality of civil legal services for low-income persons in NYC, and view representation as a continuum, connecting people to benefits and services to maximize their long-term stability in addition to providing them the legal services assistance they need. BDS currently provides complex immigration services through our NYIFUP and Immigrant Youth and Communities Projects. More details about these projects and our criminal-immigration Padilla practice are located in the sections below.

IV. BDS Provision of Immigration Legal Services

Since 2009, BDS has counseled, advised or represented more than 6,500 immigrant clients. In 2015 alone, we handled more than 1,500 immigration matters across a full spectrum of services. BDS’ vibrant Immigration Practice is composed of 17 full-time immigration attorneys, five paralegals[5], and four legal assistants. We are a Board of Immigration Appeals-recognized legal service provider. We defend detained clients facing deportation, clients identified through our criminal and family defense dockets, and clients referred from our community partners or who connected with us through community outreach clinics. The following section outlines how BDS uses current funding to defend our clients and promote stability for immigrant communities.

a. New York Immigrant Family Unity Project

The New York Immigrant Family Unity Project (NYIFUP) is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. BDS is proud to be a NYIFUP provider, along with The Bronx Defenders (BXD) and The Legal Aid Society (LAS).

In its first three years, NYIFUP has shown remarkable success and served as a model for access to justice. The following numbers were provided to us from the Vera Institute of Justice based on a preliminary and ongoing analysis of NYIFUP.

Record of Success.

  • Outcomes: NYIFUP has obtained relief, termination, or administrative closure for 154 clients, who may now remain in the United States. NYIFUP attorneys have won approximately 70% of their trials.
  • Clients Released from Detention: Counting these 154 successful outcomes, NYIFUP has secured release from custody for 452 clients.  Thus, 31% of NYIFUP’s clients have been released from detention thus far and have been reunited with their families.
  • Ancillary Proceedings: NYIFUP has initiated 153 ancillary proceedings—proceedings in other courts or with USCIS that are critical to obtaining successful outcomes or release from detention in the deportation proceedings.
  • Voluntary Departures: NYIFUP has negotiated 102 voluntary departures so that individuals could avoid the onus and legal consequences of a deportation orders
  • Families Across the City: NYIFUP has represented clients living in 49 out of 51 City Council districts.

National Model.

  • Spurring Replication Across New York State: Inspired by New York City’s leadership, the New York State Assembly provided funding in FY 2015 for a small pilot program at the Batavia Immigration Court in upstate New York, which has shown great success reuniting detained immigrants with their families. In FY 2016, the State Assembly has doubled this funding, expanding the reach of NYIFUP pilot programs upstate.
  • Inspiring Efforts Across the Country: NYIFUP has been the subject of national press and inquiry from jurisdictions across the country. In 2015, a NYIFUP-inspired universal representation program opened its doors in New Jersey, and cities including San Francisco, Chicago, and Boston have convened formal “study groups” to issue reports on access to counsel and develop programs like NYIFUP in their jurisdictions.

We are proud that NYIFUP has accomplished so much in such a short time. For FY 2017—we are requesting—together with the other NYIFUP providers—additional resources to continue this ground-breaking program and ensure that it addresses the needs of this population of immigrants in ICE detention.

Continued High-Quality Legal Services

NYIFUP’s primary goal is to preserve the unity of families, but it also aims to keep New York City’s vibrant immigrant communities strong.  As documented by The Center for Popular Democracy,[6] keeping families together saves New York government and employers significant sums, offsetting much of the cost of representing each NYIFUP client.

NYIFUP teams, including experienced immigration attorneys, BIA-accredited representatives, and social workers, provide culturally competent representation for our clients in highly complex cases:

  • NYIFUP provides representation in immigration court at master calendar hearings, bond hearings, mental competency hearings, and merits hearings.
  • NYIFUP handles appeals at the Board of Immigration Appeals and federal circuit courts of appeals.
    • A NYIFUP case at the Second Circuit Court of Appeals, Lora vs. Shanahan, established for the first time our clients’ right to an individualized bond hearing after six months of detention, even for those who are subject to mandatory detention.[7]
  • NYIFUP provides representation in family court to obtain Special Findings Orders, which allow abused, neglected and abandoned children to file Special Immigrant Juvenile Status Petitions and become LPRs.
  • NYIFUP attorneys assist in criminal court to resolve open cases, and to obtain vacaturs or other post-conviction relief that allow New Yorkers to remain with their families.
  • NYIFUP attorneys assist in federal district court when collateral proceedings – such as habeas corpus petitions or requests for declaratory judgment – are necessary for their immigration cases.
  • NYIFUP social workers provide social work services to detainees to support and assist them to obtain appropriate programs related to psychological assistance, drug/alcohol addiction and job services.
  • NYIFUP has increased awareness of detention issues through work with other legal services providers, community based organization and through media advocacy.
  • NYIFUP attorneys have raised the level of practice in the immigration courts by providing high quality legal services.

The following two BDS NYIFUP client stories demonstrate how NYIFUP makes a difference in comparison to study results that have shown that 95 percent of detained unrepresented immigrants do not make a claim that would entitle them to stay in the country and 97 percent of detained unrepresented immigrants lose their cases.  Without representation, these two immigrants would virtually certainly have been deported.

Simon (a pseudonym) immigrated to the United States from the Dominican Republic as a Lawful Permanent Resident (green card holder) in 1992.  At that time, he joined his mother and sister in Brooklyn, who were operating two bodegas in Crown Heights.  Simon inherited one of the stores after his mother died in 1994, and managed it for the next seven years.  Thereafter, he worked a number of jobs, most recently as a medical equipment deliveryman.  He has not been able to work since 2010, however, when he suffered a debilitating on-the-job injury, slipping off his truck and sustaining severe back injuries.  He has had two back operations and suffers from chronic pain that needs to be managed through regular medication and therapy.

Simon was arrested in an ICE home raid in 2014 based on a 1999 misdemeanor drug possession conviction, for which he received a conditional discharge and no jail time.  His BDS NYIFUP lawyer argued that he was eligible for bond, but the judge ruled that the law precluded release.  Thereafter, NYIFUP counsel filed an application for cancellation of removal in immigration court, and a petition for a writ of habeas corpus in federal court, arguing for a bond hearing.  Before the application for habeas corpus was ruled upon, the immigration court granted the application for cancellation of removal based upon his strong family and community ties, entitling Simon to be reunited with his wife and sons and to remain permanently in the United States.

After successfully resolving his deportation case, Simon, with the help of BDS NYIFUP, applied for U.S. citizenship.  His application was approved and, on August 19, 2015, at the age of 49, Simon was sworn in as a U.S. citizen at federal court in Brooklyn, becoming one of the first NYIFUP clients to obtain citizenship after winning his deportation case.  Simon’s naturalization automatically made his one son who was still under 18 a U.S. citizen as well.

Christian (a pseudonym) was a long-time LPR from Panama who moved to the United States at 18 years old to join his mother in the United States.  Christian never knew his father, an African-American serviceman stationed at Fort Davis in the Panama Canal Zone.  In New York, Christian worked as a refrigerator and air conditioning repairman, as well as in construction. He also became father to five children of his own. His youngest daughter, Layla, is only two years old. Prior to Christian’s detention by Immigration and Customs Enforcement (“ICE”), he, Layla, and her mother, Victoria, lived together in uptown Manhattan.

On April 30, 2014, Christian was arrested by ICE while making a routine court appearance in Kings County Criminal Court.  He was detained and placed in removal proceedings.  Christian was detained in New Jersey for nearly six months and appeared pro se before an Immigration Judge three times.  Immigration officials said he was deportable based on misdemeanor convictions.  Christian informed the judge that his father was a United States citizen in the hope that he would be spared from deportation.  However, he struggled to fight his case alone and from detention.  Eventually, in the middle of October 2014, after over five months in detention, Christian obtained counsel through NYIFUP. His BDS NYIFUP lawyer told ICE officers that Christian had a citizenship claim through his USC father, and that he should never have been placed in detention. Christian was subsequently released on October 20, 2014.  His BDS NYIFUP attorney then briefed arguments that Christian’s proceedings should be terminated on the grounds that the government had not met its burden to prove alienage and that Christian had acquired citizenship at birth through his USC father.  The DHS trial attorney agreed with the latter argument, and filed his own motion to terminate on that ground. Christian’s case was terminated with prejudice on September 11, 2015, nearly a year after his release from detention. He has applied for proof of citizenship with USCIS, and reunited with his partner, his children, and his extended family in the United States.

These are just two of the stories of the more than 1,000 New Yorkers that NYIFUP attorneys represented last year. In FY 2016, NYIFUP is well on-track to serve over 1,200 New Yorkers.

Projected Intake  – TOTALS FOR ALL 3 NYIFUP PROVIDERS
FY 15 FY 16 FY 17
Clients Served 1,003 1,200 Approximately 1,400

 

ASK: For FY 2017, the NYIFUP providers are requesting that the City fund $2.37 million per legal service provider, for a total of $7.11 million for legal and social services.[8]

This amount will cover comprehensive legal services for 1,476 people facing deportation. This increase will allow us to represent more detained New Yorkers in need, as well as continue to provide high-quality representation in multiple forums for all of our clients.

b. Padilla -support for BDS’s criminal defense clients

While our NYIFUP clients involve a large portion of our immigration practice resources because of the complex nature of those cases, BDS serves an even larger number of immigrant clients through our Padilla practice team.

In 2010, the U.S. Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea.[9] Absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.

The consequences of the Padilla ruling for public defender offices like BDS have been nothing short of a sea change.  BDS hired its first immigration attorney in 2009, before the Padilla decision came down, to help advise BDS’s criminal defense attorneys and their noncitizen clients on the immigration consequences of guilty pleas and avoid or minimize the negative immigration consequences to the fullest extent possible. Since Padilla, our Padilla practice team has grown to five full-time equivalent immigration attorneys who provide this critical Padilla support to our noncitizen clients facing criminal charges.  Still, with a criminal defense practice that represents around 40,000 Brooklyn residents every year, BDS requires additional resources to grow our Padilla practice team to meet the full extent of need.

About 23% of BDS’s annual 40,000 criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of deportation or loss of opportunity to obtain lawful immigration status as a result of their criminal case.  On average, our Padilla team is called at least once in each arraignment shift to advise on the ramification of a plea offer at arraignment, and they provide support and expertise on about 5% of the cases that survive arraignment.  The Padilla practice attorneys frequently go to court to explain the law and/or clarify issues for the prosecutor and judge in specific cases.  They also work with BDS criminal defense attorneys on pre-pleading memoranda and to review prior convictions (identifying potential post-conviction relief options for clients) when that could mitigate the immigration consequences of the criminal case. The Padilla team writes travel letters for our noncitizen clients, explaining the facts of the current case to facilitate their re-entry into the U.S. without problems.  Finally, because their Padilla consultations often require full immigration history interviews with clients, the team identifies available options for these clients to obtain lawful immigration status, advising them of those opportunities and either making internal referrals to our Immigrant Youth and Communities Project, described below, or external referrals when our Immigrant Youth and Communities Project has insufficient capacity.

The following two Padilla Team client stories illustrate how critical Padilla immigration legal support can be for our noncitizen criminal defense clients:

Sonia (a pseudonym).  Toward the end of 2013, in the midst of unprecedented levels of violence in her home country of Honduras, Sonia began receiving threats from the same gang members who had killed her father, sister, and uncle.  Fearing for her life, she and her young daughter left their remaining family behind and traveled to the United States, where they hoped to live with a cousin.  Nearly a year after arriving, Sonia was arrested for improperly disciplining her daughter (she had been using methods that were common and acceptable in Honduras), and she was charged with endangering the welfare of a child. When Sonia’s public defender learned that Sonia did not have lawful status in the United States, she referred the case to a BDS Padilla attorney.  Upon hearing her story of persecution in Honduras, the BDS Padilla attorney, working with our Immigrant Youth & Communities Project (below), filed an asylum application on her behalf, narrowly avoiding the statutory bar for applications filed more than one year after a noncitizen’s entry to the United States.  He also identified the possibility of Special Immigrant Juvenile Status for the daughter, who had been abandoned at birth by her father. BDS is now working on obtaining SIJS for Sonia’s daughter.

Claudia (a pseudonym).  Claudia married the man she hoped would be the love of her life.  Within two months, however, she learned that he was having an affair.  When she confronted him, he began a cycle of physical and mental abuse against her, apparently with the goal of convincing her to stay with him.  The abuse continued even after she ended their relationship and he would frequently show up to her home and place of work to berate her.  Claudia eventually went to a center for survivors of domestic violence where she was connected with a pro bono attorney.  She then filed a petition for permanent residence under the Violence Against Women Act (“VAWA”).  She was awaiting a decision from the U.S. Citizenship and Immigration Service when her ex-husband again forced his way into her home.  When he saw that she was wearing a jacket he had bought her, he grabbed a knife and attempted to cut it off of her.  In the process, he ended up cutting himself.  He called the police and stated that she had assaulted him with a knife.  Claudia was arrested and charged with a number of misdemeanor offenses, a conviction of some of which could have taken away her only defense to deportation.  Due to the ex-husband’s injury, which required stitches, the Kings County District Attorney’s Office was not initially sympathetic to Claudia’s self-defense claim. The BDS defense team including the assigned Padilla attorney, submitted a letter to the DA explaining the client’s history of abuse, her impressive career goals (she was enrolled in nursing school), and the potentially drastic immigration consequences a conviction would have. The Assistant DA was moved by the letter and agreed to an adjournment in contemplation of dismissal, an outcome that carries no immigration consequences.  Claudia’s application for permanent residence was approved soon thereafter.

Ask: We are requesting that the City Council support our request to the Mayor’s Office of Criminal Justice for supplemental funding to cover increasing criminal defense costs, including Padilla costs.

c. BDS’s Immigrant Youth and Communities Project—Quality Representation for both Simple and Complex Immigration Cases

In addition to our advocacy work with LEAP (described above), BDS has applied separately for funds from the City Council’s Immigrant Opportunities Initiative (IOI) to provide a broad range of immigration legal services to Brooklyn’s low-income immigrant youth and families.  IOI funding would help fund BDS’s Immigrant Youth and Communities Project. Since launching the project in 2012, BDS has represented thousands of Brooklyn immigrants in their applications for lawful immigration status and in defending against deportation in non-detained removal proceedings.  Highlights of our work include assisting more than 320 young clients in their pursuit of Special Immigrant Juvenile Status (SIJS), Adjustment of Status, U visas, Deferred Action for Childhood Arrivals (DACA) and other immigration benefits or removal defense, and assisting more than 1,000 Haitian New Yorkers with their applications for Temporary Protected Status, work authorization, and other immigration benefits or removal defense.

Our Immigrant Youth and Communities Project seeks to strengthen Brooklyn’s immigrant communities by procuring or retaining lawful immigration status for its immigrant youth and adults, bringing them out of the shadows and securing their meaningful access to justice and opportunity.  With IOI funding, BDS can maintain and grow our Project staff to provide community education, legal screening, advice and full representation to low-income Brooklyn immigrant youth and adults borough-wide, in their pursuit of affirmative immigration benefits such as citizenship, lawful permanent residence, asylum, Special Immigrant Juvenile Status, special trafficking and victims’ visas, VAWA relief, TPS, and DACA, and in their defense against deportation in non-detained deportation proceedings.

Although BDS’s Immigrant Youth and Communities Project includes application assistance in simple cases such as DACA and TPS, we have extensive expertise in the delivery of quality legal representation in much more complex immigration cases.

  • Cases involving appeals to the Board of Immigration Appeals (BIA), the Administrative Appeals Office (AAO), or state or federal courts where necessary or appropriate, such as an appeal to a higher state court upon the denial of a family court guardianship petition, or a federal habeas petition or Petition for Review. BDS’s Immigration Practice has considerable experience litigating complex immigration cases at the appellate levels.
    • We have represented clients in 35 BIA and AAO appeals in the last two years, primarily in the removal defense context whether we pursued the appeals on behalf of our clients or defended our clients against appeals brought by the government to challenge immigration judges’ decisions in favor of our clients;
    • We have represented clients in 29 federal habeas petitions in the last two years, challenging our detained immigrant clients’ being held subject to mandatory detention without the opportunity to seek release on bond.
  • Non-detained removal defense cases. BDS represents hundreds of detained immigrant New Yorkers each year through NYIFUP. Consequently, our removal defense expertise is deep and ongoing.  BDS’s representation of immigrants in non-detained removal proceedings that are not covered by NYIFUP, however, remains currently unfunded, and our request to the City Council for FY 2017 IOI funding would allow us to continue and grow this aspect of our work.
  • Affirmative benefits cases that routinely involve more substantial attorney or BIA-accredited representative work, such as Special Immigrant Juvenile cases; U visas, S visas, and T visas; VAWA self-petitions; I-485 adjustment of status applications that also require I-601 waivers (of unlawful presence or criminal inadmissibility bars) or I-212 waivers (for prior deportation/removal cases) or other waivers; and Asylum. Our Immigration Practice handles many of these more complex affirmative benefits cases. For example, we undertook 93 SIJS cases and 23 U visa cases in the last two years alone.  And in both affirmative and defensive cases, we have engaged in 133 cases involving I-589 asylum and related persecution-based claims on behalf of clients.
  • Other affirmative benefits cases (including those that may otherwise be more straightforward applications but that present complications such as evidentiary issues or criminal histories). As an Immigration Practice that is integrated into a larger public defender office, BDS is expert in representing criminal justice-involved immigrants—a population generally underserved by other immigrant legal service providers and an extremely complicated area of law.  As just one example of this type of complex case we are well-suited to serve, a participant who may be eligible for Adjustment of Status may have a criminal arrest record that requires gathering of criminal court records, careful analysis thereof, and—if the participant is indeed adjustment-eligible— full representation in the preparation of a more substantial adjustment application complete with evidence of rehabilitation and other equities such as to enhance likely USCIS approval.

The following are just a few examples of the very complex immigration cases BDS works on:

  • SIJS case made further complicated by a necessary appeal – We handled a successful appeal of a denial by a family court judge in a case involving Special Immigrant Juvenile Status (SIJS) client Alicia (name is a pseudonym). Following appeal to the 2nd Department Appellate Division of the New York State Supreme Court, the case was remanded to the family court and was ultimately granted by the family court judge. Alicia’s application for SIJS has since been approved and her removal proceedings terminated, and she hopes to receive her green card in the next several months.
  • Case involving prior removal order – BDS has represented numerous children and adults in reopening prior orders of removal, allowing them to pursue benefits such as Special Immigrant Juvenile Status, asylum, and family-based petitions. Carlos (a pseudonym) is eight years old and a client of BDS. Carlos failed to attend an immigration court hearing because his father got into a car accident while taking him to court. BDS filed a motion to reopen Carlos’ case, arguing that the car accident, combined with the child’s young age and dependency on his father, constituted “exceptional circumstances” warranting reopening of the case.  The immigration court reopened Carlos’ case, and he is now in the process of seeking Special Immigrant Juvenile Status, with our legal representation, based on severe neglect by his mother in Honduras.
  • Case of Crim-Imm, Removal Defense, and Complex Adjustment of Status – Michael (a pseudonym), age 32, is from Haiti, and has lived in the U.S. since he was only seven years old. He does not know how or with whom he entered the U.S.  When Michael was still a teenager, his father, a U.S. citizen, applied to sponsor Michael for a green card, but their private attorney failed to respond to requests for evidence from the former Immigration & Naturalization Service (INS), and he never received his green card.  Years later, in 2009, he was arrested and charged with sale of a controlled substance.  He initially pled guilty to possession of a controlled substance, rendering him ineligible for most immigration benefits including a green card.  Michael was subsequently transferred to immigration (ICE) custody and placed into removal (deportation) proceedings, and BDS recruited pro bono counsel to represent him in these proceedings.  BDS mentored pro bono counsel who assisted Michael in applying for a range of possible remedies against deportation, including Temporary Protected Status for Haitian nationals and protection under the Convention Against Torture (CAT).  While his removal case was pending, BDS attorneys also advocated on Michael’s behalf in criminal court, asking the judge to allow Michael to withdraw his guilty plea, and to allow him to participate in a drug treatment program so that his case could later be dismissed.  Once Michael’s plea was vacated, Michael was released on bond from immigration detention.  After Michael’s criminal case was successfully dismissed, BDS attorneys were able to secure termination of his removal case, and to finally help him apply once more for his green card, this time under a complex provision of the Immigration and Nationality Act known as 245(i).  BDS counsel accompanied Michael to his green card interview in February 2016, and the immigration officer indicated that he intends to recommend Michael’s case for approval.

Ask: BDS requires substantial funding from Immigrant Opportunities Initiative (IOI), through the City Council, and/or an HRA RFP to continue serving Brooklyn’s immigrant youth and communities with high-quality immigration legal services.

V. Conclusion

Thank you again for this opportunity to share with you the life-changing impact that City Council funds have had on the thousands of immigrant clients that BDS represents every year. I trust that the testimony you hear from BDS and other service providers underscores for you the tremendous importance that City Council funding plays in protecting our immigrant New Yorkers, keeping their families united, and keeping our communities stronger. The next several months will continue to be times of political uncertainty and fear, as presidential candidates campaign on anti-immigrant platforms and we await the U.S. Supreme Court decision in the DACA case. The election in November will certainly have a dramatic impact on this climate of fear and uncertainty one way or another, and may dramatically impact enforcement trends. It is vital that the City of New York be poised to react to whatever political fallout results from the election. BDS looks forward to collaborating with City Council, city agencies, other service providers and community groups through our coalition work to ensure that New York City continues to provide immigrant families, employers and communities with the legal services we need to ensure success and growth for all.

[1] Liz Robbins, “Rumors of Immigration Raids Stoke Fear in New York,” New York Times, Jan. 6, 2016.

[2] Pamela Constable, “Deportation raids to continue, despite outcry,” The Washington Post, Jan. 8, 2016.

[3] See Kirk Semple, “Advocates Seek to Make Courthouses Off Limits to Immigration Officials,” New York Times, May 26, 2014; see also Max Rivlin-Nadler, “Why Are the Feds Stalking Immigrants at Courthouses in New York?,” Vice, Dec. 9, 2015.

[4] See The Center for Popular Democracy, The New York Immigrant Family Unity Project: Good for Families, Good for Employers and Good for All New Yorkers, available at http://populardemocracy.org/sites/default/files/immgrant_family_unity_project_print_layout.pdf

[5] One of our paralegals is fully accredited by the Board of Immigration Appeals (BIA). The other four paralegals on our Immigration Practice Team are partially accredited by the BIA.

[6] The Center for Popular Democracy, The New York Immigrant Family Unity Project: Good for Families, Good for Employers and Good for All New Yorkers, available at http://populardemocracy.org/sites/default/files/immgrant_family_unity_project_print_layout.pdf

[7] Batya Ungar-Sargon, “Immigrants’ fates depend on access to lawyers,” City Limits, Dec. 17, 2015, available at http://citylimits.org/2015/12/17/immigrants-fates-depend-on-access-to-lawyers/.

[8] While our carry-over docket has built up over the past two years, we anticipate it plateauing in FY 2017 as more of our non-detained carryover cases from FY 2105 are resolved.  Starting with FY 2017, we believe our carry-over non-detained caseload will level out due to increased resources at 26 Federal Plaza and the natural catching up of our trial dates.

[9] Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010).

TESTIMONIO DE SAMUEL DAVID FLORES MURILLO – NY CITY COUNCIL IMMIGRATION COMMITTEE BUDGET AND NYIFUP HEARING (SPANISH)

NEW YORK CITY COUNCIL – IMMIGRATION COMMITTEE

BUDGET & NYIFUP HEARING

MARCH 28, 2016, 2 P.M.

TESTIMONIO DE SAMUEL DAVID FLORES MURILLO

Mi nombre es Samuel David Flores Murillo. Yo doy gracias a la ciudad de Nueva York que apoyo este programa de NYIUP que a mí me permitió tener mi caso antes de un corte con un representante legal, mientras tanto estaba detenido.

Soy hijo de Margarita Murillo, una defensora de derechos humanos y derechos de los campesinos en Honduras durante toda su vida. Inmigré a los estados unidos en el anos 2005 por el motivo de persecución política que me ponía en peligro, como resultado del trabajo de mama. En el año 2006 fui arrestado por inmigración. Fui deportado porque no tenía alguien que me representara en mi caso. Nada más me presentaron frente al juez, no entendí mucho, fui muy joven para entender los procedimientos, y no hubo traductor. Yo entendí que me iban a deportar por haber entrado ilegal, y me hicieron firmar un papel y ya. Yo regresé a los Estados Unidos un año después, por la misma razon, y me deportaron otra vez en 2009. Durante todos esos años, seguía la persecución de mi mama y mi familia debido al trabajo de mi madre por su trabajo político u por luchar por los derechos de la gente.

Dos meses después de haber regresado a Honduras en 2009, hubo el golpe del estado de Honduras, en que el ejército de Honduras secuestró al presidente Manuel Zelaya Rosales y lo sacó del país. Estaba muy “caliente” o peligroso en estos días porque el pueblo rechazó las acciones de las fuerzas armadas. Como dos semanas después del golpe del estado, yo fui secuestrado por media noche de mi casa por personas desconocidos, armadas, durante casi un mes. En ese tiempo, mis captores me interrogaron sobre mi madre y sus acciones políticas. Cuando no cooperé con ellos, me torturaron. Finalmente, llevaron mi cuerpo al interpedie del campo. Casi había perdido la conciencia por todos los heridos que tenía. Me botaron y me dejaron por muerto, hasta que escuche que uno de ellos dio, ‘Dale un balazo en la cabeza para más asegurarse que estuviera muerto’ y el otro respondió ‘que no, ya está muerto.’

Gracias a Dios, sobreviví al intentado a asesinarme. Escapé, recuperé y regresé a los EEUU, pero viviendo como indocumentado. En Julio de 2014 caí otra vez en las manos de migración. Me detuvieron y me iban a deportar; esta vez, asistí a una presentación de “conocer sus derechos” y me informaron de la defensa que existe para las personas que son víctimas de la persecución. Entonces, escribí una carta a mi oficial de migración pidiendo que no me deportaran porque tenía miedo de regresar a mi país por razones políticas. Después de rechazar mi carta varias veces, finalmente me mandaron una contestación e hicieron cita con una oficial de asilo.

Mientras tanto eso estaba pasando, yo estaba en el teléfono marcando a muchas organizaciones de abogados pidiendo que me representaron, pero ninguno de ellos aceptaron mi caso. Además, en los días que estaba esperando a la cita con asilo, me enteré de las noticias terribles de que habían asesinado a mi madre en Honduras. Sentí completamente impotente para responder; y sentía aun más presión para defenderme solo con las noticias de su asesinato.

Llegando a la corte, me encontré con los abogados de Brooklyn Defender Services, y gracias a Dios tomaron mi caso. Me pusieron en manos de la abogada Tracy Lawson. Con su dedicación su entrega, y su buena representación, salimos adelante en mi caso, contado las suficientes pruebas.

La diferencia entre tener abogado y no tener abogado es una diferencia enorme. La fiscal en mi caso trataba de que me deportaran de la manera que fuera posible, no me ayudó mucho. Ella rechazó y contestó todo lo que decía, trataba de alagar y alagar y alagar el caso. Creo que lo hizo para que yo me desesperara; y no fui elegible para una fianza, entonces cada demora que ella hizo costó muchos meses más de detención. Ella nos hizo hacer trámites que ya se habían hecho, pero que ella no aceptó.

Con abogada, entendí los procedimientos y el trabajo necesario para poder tener éxito. Sin abogada, no hubiera tenido la confianza de poder ganar mi caso; al contrario, yo sólo hubiera desesperado con tantas demoras, que firmara mi deportación. Lo hubiera hecho aunque sabía que solo me quedara la muerte, porque hubiera seguido el trabajo de mi mama en Honduras.

La abogada pudo comunicar con muchas personas afuera – mi familia y conocidos en Honduras; los defensores de derechos humanos de parte de Honduras que me apoyaron aquí en Nueva York, y quienes vinieron a apoyarme en la corte. Sin abogado, no hubiera podido saber que es que necesitaba de pruebas y documentos; aún más, cuando un es detenido uno no puede llamar a muchas personas; las llamadas son muy caros, aun mas si son internacionales. No tiene libertad de buscar las pruebas y hacer los trámites necesarios para apoyar a su caso. Aun mas, la abogada consiguió una experta que dio testimonio a la situación grave en Honduras, y ajunto muchos reportes de los medios tal nacionales que internacionales, acerca del asesinato de mi madre y la situación política en Honduras. No hubiera podido hacer eso yo solo.

Yo puedo decir con 100% de certeza de que si no tenía abogada en ese caso, yo creo ciertamente que hubiera muerto en Honduras ahora.

Después de casi un año de estar detenido por inmigración, finalmente la fiscal concedió que habíamos probado nuestro caso, y el juez paro mi deportación. Desde entonces, mi abogada me ha estado ayudando con otros asuntos también, como buscar servicios médicos, conseguir el permiso de trabajo, y muchas cosas más. También ella ayudo a mi familia obtener representación legal ambos a mi hermana y sobrina quien recién llegaron a los estado unidos, y a mi hermano quien también está en procedimientos de deportación. Entonces, el apoyo que me da mi abogada extiende más allá de su trabajo en corte sino que ayudarme en varios aspectos de mi vida después de ganar mi caso.

Casi todos mis compañeros detenido que tenían abogados del programa ganaron sus casos o salieron de detención bajo fianza. Todos dependen mucho del programa. Aún más pueden confiar en el trabajo bueno de ellos, porque algunos abogados privados toman el dinero del inmigrante y después no hacen un buen trabajo, y puede perder su caso y perder mucho dinero también.

En conclusión, Yo, Samuel David Flores Murillo, viva, sana, y con poder de vivir no como indocumentado sino que como un residente reconocido por la ciudad de Nueva York, respetuosamente y sinceramente pido a la que POR FAVOR sigue apoyando al proyecto y al Brooklyn Defenders y del programa de NYIFUP para el beneficio de todos los migrantes detenidos, y no detenidos, que necesitan defender a sus casos.

TESTIMONY OF SAMUEL DAVID FLORES MURILLO AT NY CITY COUNCIL IMMIGRATION COMMITTEE BUDGET AND NYIFUP HEARING (ENGLISH)

NEW YORK CITY COUNCIL – IMMIGRATION COMMITTEE

BUDGET & NYIFUP HEARING

MARCH 28, 2016, 2 P.M.

TESTIMONY OF SAMUEL FLORES DAVID MURILLO

My name is Samuel David Flores Murillo. I would like to thank the New York City Counsel for supporting the New York Immigrant Family Unity Project, a project which allowed me to have a legal representative with me while I was detained during my Immigration Court case and ultimately saved my life by winning my case for me to stay in the United States.

I am the son of Margarita Murillo, who fought for the rights of farmers and for human rights in Honduras. I immigrated to the United States in 2005 to escape the political persecution I was facing due to my mother’s work. In 2006, I was arrested by immigration. I was deported, because I didn’t have anyone to represent me in that case. All that they did was put me in a room with a judge; I didn’t understand much, I was too young to understand what was going on, and there was not a translator. I only understood that they were going to deport me because I had entered illegally; they made me sign a paper and that was it. Later I returned to the U.S. for the same reason, and I was deported again in 2009. During all of those years, the persecution against my mother and my family continued, because of her political activism and her work fighting for the rights of the people.

Two months after I was deported to Honduras in 2009, there was the coup d’état, where the military of Honduras kidnapped President Manuel Zelaya Rosales, and took him out of the country. The country was very volatile and dangerous during those days because the people rejected the actions of the armed forces. About two weeks after the coup, some unknown men kidnapped me from my house at gunpoint during the middle of the night, and they kept me captive for about a month. They interrogated me about my mother’s work. When I didn’t cooperate with them, they tortured me. After they tortured me, they took my body and dumped it in the countryside. I had nearly lost consciousness because of all of the injuries I sustained. They tossed me away and left me, believing that I was dead – I even heard one of them say, “Give him a bullet in the head to make sure he’s dead,” and the other one replied, “he’s already dead.”

Thank God, I survived this assassination attempt. I escaped, recovered, and returned to the United States, but I was living in the shadows because I was undocumented. In July of 2014, once again I fell into the hands of immigration. They detained me and were planning to deport me again; but this time I went to a “Know Your Rights” presentation and I learned about the legal defense available to people who are victims of persecution in their countries. I wrote a letter to my deportation officer and, after being rejected a few times, they scheduled an interview with an asylum officer.

While this was happening, I was trying to call around to many different legal organizations, asking for someone to take my case and represent me, but none of them accepted my case. Then, while I was waiting for the date of my interview with the asylum officer, I learned the terrible news that my mother, Margarita Murillo, was assassinated in Honduras. I was devastated; felt completely powerless to respond; and I felt even more pressure about trying to defend myself with the news of her assassination.

Arriving in court, I found an attorney from Brooklyn Defender Services. Thank God they took my case. They put me into the hands of Tracy Lawson. With her dedication and service, her good representation, we got all of the evidence we needed and we prevailed in my case.

The difference between having an attorney and not having an attorney is enormous. The prosecutor in my case tried to make them deport me by any means necessary; she did not help in any way. She rejected our evidence and rejected my testimony; she found ways to delay and delay and delay the case. I believe she did that so that I would get desperate. Because I wasn’t eligible for a bond, each delay cost me many more months detained. She made us jump through hoops to get documents that we had already provided but that she wouldn’t accept.

With an attorney working on my case, I understood the proceedings and all the work necessary to be successful in the case. Without an attorney, I would not have had the confidence to be able to defend myself; on the contrary, alone, I would have become desperate with so many delays, that I am sure I would have signed out and let them deport me. I would have done that even though I knew that the only thing that waited for me in Honduras was death, because I would have taken up my mother’s cause in Honduras.

During my case, my attorney was able to communicate with many people on the outside – my family and acquaintances in Honduras, the human rights defenders supporting me and coming to court here in New York. Without an attorney, I would not have known what evidence and documents were needed, and I would not have been able to make calls to Honduras to get them. The calls from the jail are extremely expensive. A detained person does not have the ability to collect documents and evidence and to comply with all of the required procedures to support their case. What is more, the attorney found an expert that gave up-to-date testimony about the situation in Honduras and collected news reports, national and international, about the assassination of my mother and the situation in Honduras. I could not have done that if I were defending myself alone.

I can say, with 100% certainty, that if I did not have an attorney in my immigration case, I firmly believe that I would be dead in Honduras today.

After being detained nearly a year by immigration, the prosecutor finally conceded that we proved my case, and the judge stopped my deportation. Since then, my attorney has also been helping me with other matters as well; she helped me find medical services, she helped me get employment authorization, and many other things. She also helped my family – she helped my sister and niece, who came to the US recently, after our mother was assassinated, to find an attorney, and she helped my brother, who is in deportation proceedings, too, find an attorney. All of this is to say, that the work of my attorney extends far beyond her work in the courtroom and she has helped me in various aspects since we won my case.

Almost all of the other detained immigrants that I met during my year of detention had attorneys from the NYIFUP program; many of them either won their cases or got out on a bond. Everyone depends a lot on this program. What is more, we can trust the quality of their work, because even some private attorneys will take an immigrant’s money and they won’t do a good job, so then the immigrant loses their case and loses a lot of money, too.

In conclusion, I, Samuel David Flores Murillo – alive, healthy, and with the power to live not as an undocumented person, but as a resident recognized by the City of New York, respectfully and sincerely ask that, Please, continue to support the NYIFUP project and the Brooklyn Defender Services, for the benefit of all of the immigrants, detained and not detained, that need to defend their cases.

News

EL DIARIO: ‘MIGRA’ ACECHA A INMIGRANTES EN CORTES CRIMINALES

POR: CRISTINA LOBOGUERRERO

19 OCTUBRE 2015

En la primavera del año pasado Clarence Threlkeld acudió a su segunda audiencia en la Corte Criminal de Brooklyn para resolver un caso por un delito menor y, de repente, fue arrestado por agentes del Servicio de Inmigración (ICE).

“Había ido a mi segunda cita en la corte y cuando fui a entrar escuché mi nombre, pensé que era mi abogado, el que se me había asignado. Pero eran dos hombres vestidos de civil que me informaron que había una orden de arresto de parte de Inmigración”, relató Threlkeld, quien es padre de cinco hijos.  More

News

MAYOR BILL DE BLASIO SIGNS LAW THAT REDUCES NYC’S COOPERATION WITH IMMIGRATION DETAINERS

Mayor Bill de Blasio signed legislation to sharply limit the city’s cooperation with detainers issued by Immigration and Customs Enforcement—and to boot that federal agency from Rikers Island.

“What these bills do is they protect the rights of undocumented immigrants, of visa holders, and legal permanent residents alike, all of whom have suffered under the previous approach, and ultimately prevent families from being torn apart,” Mr. de Blasio said at a Queens press conference.

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News

BDS IN THE NEWS: LAWFUL RESIDENT WINS BOND HEARING AFTER 6 MONTHS IN “UNREASONABLE” DETENTION

“Six months detention without an opportunity to be heard raises serious constitutional questions,” Judge Hellerstein wrote. “Araujo-Cortes’ continuing detention has become unreasonable.”

The judge gave authorities one week to provide Araujo-Cortes with a bond hearing, where it will need to show that he is either a risk of flight or dangerous in order to continue the detention.

Bridget Phillips Kessler, an attorney with Brooklyn Defender Services who represented Araujo-Cortes on the habeas petition, said it is far more difficult for an individual to prepare his or her case when incarcerated.

“It’s a wonderful decision for our client, and we are glad he will have an opportunity to have a judge determine his risk of flight and dangerousness so he can hopefully obtain a reasonable bond and rejoin his family while he fights his immigration case,” Kessler said.

 

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