Mackenzie Yee is a staff attorney in BDS’s Immigration Practice, where she works to protect clients from the disproportionate immigration consequences of their criminal cases. She was born and raised in Queens and received her J.D. from Georgetown University Law Center. Throughout law school, Mackenzie advocated for the rights of non-citizens, interning at the ACLU Immigrants’ Rights Project, Capital Area Immigrants’ Rights Coalition, and National Immigration Law Center. She also represented asylum seekers with Georgetown Law’s Center for Applied Legal Studies. As a native New Yorker, Mackenzie is proud to be serving New York’s underrepresented communities.
Collin Pelletier Poirot joined Brooklyn Defender Services’ Immigration practice in September 2018. Collin is a staff attorney on the Youth and Communities team and holds a B.A. and B.S. from the University of Texas, as well as a J.D. from Harvard Law School. Before joining BDS, Collin worked in immigrant legal services as part of the Harvard Immigration Project and the Harvard Crimmigration Clinic. Collin’s clinical work focused on asylum applications, Padilla advisals, and policy advocacy regarding the ‘particularly serious crime’ bar to admission. Collin also spent time at the Harvard International Human Rights Clinic, where he contributed to the Mamani, et al. v. Sánchez de Lozada and Mamani, et al. v. Sánchez Berzaín human rights litigation, bringing claims against the former President and Minister of Defense of Bolivia under the Torture Victims Protection Act (TVPA).
Collin also has significant experience in community lawyering and movement lawyering, first as an Ella Baker Fellow at the Community Justice Project in Miami, and later at the People’s Law Office in Chicago, where he was honored to work closely with Palestinian freedom fighter and political prisoner Rasmea Odeh. Finally, Collin also served as co-chair of the Harvard Law School chapter of the National Lawyers Guild and has organized and participated in more than a dozen panels and speaking engagements, including as a plenary speaker at the national conventions of Students for a Democratic Society in 2016 and 2017.
BXD BDS & LAS ISSUE JOINT STATEMENT IN OPPOSITION TO PHASE-OUT OF HUDSON COUNTY JAIL CONTRACT WITH ICE
Contacts: Jared Chausow, firstname.lastname@example.org, (650) 814-0565
Anna Kim, email@example.com, (919) 259-8069
Joint Statement in Opposition to Phase-Out of Hudson County Jail Contract with ICE
Sept. 6, 2018 – (Brooklyn, NY) Today, Hudson County Executive Tom DeGise announced a plan to exit a contract with U.S. Immigration and Customs Enforcement (ICE) to provide immigration detention in the county jail. Brooklyn Defender Services and Bronx Defenders released the following statement in opposition to this plan:
“As attorneys representing detained immigrants facing deportation through New York City’s pioneering New York Immigrant Family Unit Project (NYIFUP), we strongly support the movement to abolish ICE and believe there is no place for the jailing of asylum-seekers, longtime community members, or anyone else based on birthplace in a just society. The civil and human rights violations perpetrated by ICE against immigrants and people of color are longstanding and well-documented. That said, ending contracts for ICE detention in jails near large immigrant communities where attorneys are provided for free will do far more harm than good and we question whether directly impacted people were engaged in this decision. Hudson County and other local governments have local control over jail contracts with ICE, but they do not have any control over what will happen to detained people if these contracts are terminated. That’s up to ICE.
People who are currently detained near their families and communities would be moved, likely hundreds or thousands of miles away, and quite possibly to remote private prisons where neither attorneys nor vigilant community members and clergy would be able to advocate for their rights and safety.
Certainly, reallocating revenue from the contract with ICE toward better serving people caught in the web of immigration detention, as local advocates and elected officials have called for, is worthy, but phasing out the contract itself is the wrong move.
NYIFUP representation has increased the likelihood of detained people winning their cases by a factor of 12 – from 4% to 48%. In addition to saving people from deportation, family dissolution, and in many cases death in their country of origin, this program has shown that nearly half of the people arrested and detained by ICE have a legal claim to remain in their homes and communities here under the law. This only strengthens the argument to abolish ICE.
Our country must fundamentally transform its immigration system to recognize the humanity of all people, including by repealing the laws that created our current mass immigration detention system. Until that is achieved, we must proceed responsibly and do no harm.”
IN THE NEWS: BUZZFEED – “ICE WANTED TO DEPORT HIM. HE CLAIMED HE WAS A US CITIZEN. TWO YEARS LATER, A COURT DECIDED.”
Photo: Idris Solomon For Buzzfeed News
Buzzfeed shares the story of BDS NYIFUP client Levy Jaen who won release from detention earlier this year when the Second Circuit Court of Appeals acknowledged his citizenship by birthright in a landmark decision. Story features Immigration Supervising Attorney Andrea Saenz.
KANG, SO YOUNG
Augustin Sajous had just finished a hearing on fare evasion and low-level drug possession last fall when federal ICE agents snatched him off the sidewalk in front of criminal court in downtown Brooklyn. The 60-year-old Haitian man is a lawful permanent resident of the U.S. who spent the next nine months in custody in a New Jersey detention center, as officials sought his deportation to a country where he no longer has family or friends.
“Every day, people were getting deported, and every day, more people were coming in,” said Sajous, who came to the U.S. when he was 14. “I was a little anxious to get out.”
His case was the first to be considered in New York since the U.S. Supreme Court ruled in March that there is no requirement to provide bond hearings for detained immigrants if the government can justify continued detention. Despite the ruling, Sajous won release on $3,000 bond last month following a prolonged court battle.
Having immigrated to the U.S. from Turkey with her family, Setenay was inspired to pursue a career in immigration law and reform. During law school, she first became involved in immigration through student-run pro bono groups Immigration Court Observation Project and Immigrant Visa Assistance Project. She continued to explore different aspects of immigration law through internships at NYCLU where she assisted in impact litigation against CBP for racial profiling near the northern border, CAIR Coalition where she screened and represented detained immigrants in the DC area, HIAS and Brooklyn Defender Services where she continued to provide direct services.
After internships at the Arlington and New York Immigration Courts, she spent two years as an attorney advisor at the Arlington and Headquarters Immigration Courts in Virginia where she assisted judges on detained dockets with cases around the country and served as part of Judge Paul W. Schmidt’s “Due Process Army.” Following the EOIR clerkship, she joined Immigrant Justice Corps as a fellow at Lutheran Social Services where she primarily represented Central American asylum seekers and children. Setenay is excited to return to BDS as a staff attorney in the NYIFUP team.
Setenay is admitted to the bar in New York State and speaks Turkish and Spanish.
Rachel is a paralegal in the New York Immigrant Family Unity Project (NYIFUP) at Brooklyn Defender Services. Rachel graduated from the University of Maryland in 2017, where she studied Immigration and Ethnic Studies. At Maryland, Rachel volunteered and interned at several organizations dedicated to immigrants’ rights, including Kids in Need of Defense, Church World Service, and the CARA Pro Bono Project.
Prior to joining BDS, Rachel worked as a legal assistant with Aldea – The People’s Justice Center on behalf of detained asylum-seeking families in Berks County, Pennsylvania. This work fueled her passion to defend immigrants in detention.
Rachel is proficient in English and Spanish. She is honored and humbled to be a part of the NYIFUP team defending immigrant New Yorkers.
Meghan joined Brooklyn Defender Services as a Staff Attorney with the New York Immigrant Family Unity Project (NYIFUP) in November 2017, where she represents detained and non-detained New Yorkers in the first-in-the-nation immigration public defender program. Prior to joining BDS, Meghan worked as a public defender in New Jersey where she represented indigent clients charged with serious felonies. Throughout her time working as a public defender, Meghan tried a number of jury trials and encountered countless non-citizen clients suffering immigration consequences. Through this work and her experiences defending non-citizens, she realized her desire to focus on defending non-citizens in a more substantial way. Meghan is excited to be a part of NYIFUP, which she views as a natural extension of public defense work that permits her to continue to fight for indigent rights.
Meghan attended CUNY School of Law and graduated in 2013. During law school she participated in the Criminal Defense Clinic and interned at Appellate Advocates, Bronx Defenders and the Legal Aid Society. She is admitted to practice law in New York and New Jersey.
Outside of work, Meghan aims to spend nearly all of her time outdoors, whether hiking, running or playing softball with the Prospect Park Women’s Softball League (Go Crescendo!).
Laura Berger joined the Immigration Unit at BDS in 2018. She works with the Youth and Communities Project, representing low-income immigrants in affirmative applications for immigration status and defending them in Immigration Court.
Formerly, Laura spent three years as the staff attorney for the Immigrant Justice Project at the City Bar Justice Center in New York City. There, she represented survivors of human trafficking, domestic violence, abuse and neglect in immigration matters and advocated for them as victim-witnesses with law enforcement.
Laura received her J.D. from Fordham Law School in 2012. While in law school, Laura received funding from the Leitner Center for International Human Rights to spend a summer working with detained refugees at the Hotline for Refugees and Migrants in Tel Aviv, Israel.
Laura is passionate about representing immigrants and helping them to obtain the best possible outcome in their case. She speaks Spanish fluently and is studying Russian and French.
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 COMMITTEES ON COURTS AND LEGAL SERVICES & IMMIGRATION OVERSIGHT HEARING ON ICE ENFORCEMENT IN NYC COURTS
Lisa Schreibersdorf – Executive Director, Brooklyn Defender Services
BROOKLYN DEFENDER SERVICES
The New York City Council Committees on Courts and Legal Services & Immigration
Oversight Hearing on ICE Enforcement in NYC Courts
June 29, 2017
My name is Lisa Schreibersdorf. I am the Executive Director of Brooklyn Defender Services (BDS). BDS provides 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. I thank the New York City Council Committees on Courts and Legal Services & Immigration, and in particular Speaker Melissa Mark-Viverito, Chair Lancman, and Chair Menchaca, for holding this oversight hearing on Immigrants and Customs Enforcement (ICE) enforcement in New York City courts. Coming together to demand an end to courthouse arrests is urgent and critically important. BDS is proud to work with the Council to strengthen our city’s resistance of federal practices that would infringe on the rights and well-being of our clients and all immigrant New Yorkers and we are hopeful that greater progress may be made as the scope of the problem becomes increasingly evident. Specifically, we must work together to protect immigrants’ access to justice, not only by mobilizing to prevent ICE arrests in court, but also by continuing to reduce unnecessary points of contact with the criminal legal system altogether which often put our New York immigrant families and community at risk of separation.
It is important to state at the outset that studies show immigrants commit fewer crimes that native-born Americans and the majority of them are never even accused of a crime. To the contrary, an influx of immigrants has been shown to reduce crime in New York City neighborhoods. That said, immigrants who do become court-involved often face disproportionate punishment and harm, including banishment, for offenses that are largely tolerated in affluent communities.
Impaired Access to Justice
Since Trump took office, our immigrant clients have increasingly expressed concerns about the risks of coming to court. These clients include people with lawful status, those with citizenship claims, those seeking asylum and even naturalized citizens. They are often confused about the entanglement between ICE and the criminal legal system. They express fear of collusion between ICE and local government officials, or those they perceive to be government officials, including court staff, judges, prosecutors, and even their own defense counsel. BDS’s in-house immigration attorneys, who specialize in advising our criminal and family defense clients about the immigration consequences of criminal legal system contact, are routinely required to counsel our clients on the very real possibility of ICE’s presence in criminal or family court weighted against the serious and definite risks of not appearing for their proceedings.
We are certain this fear, which is perpetrated by ICE’s willful arrest practices, has a grave and chilling effect on immigrant communities’ willingness to avail themselves of civil and criminal courts and the legal system generally. In practice, this means fewer innocent people or people with mitigating circumstances mounting a defense against criminal allegations, likely resulting in permanent criminal records and incarceration and/or triggering warrants; fewer cases bringing to light abuses and constitutional violations by police in immigrant communities and fewer people exercising their legal rights in housing court to compel their landlords to repair unsafe conditions that endanger immigrants and non-immigrants alike. This chilling effect is starkly present in Family Court, where immigrant New Yorkers are afraid to show up to prosecute domestic violence, assert their parental rights or participate in visitation, custody or child support payment proceedings.
One particularly egregious example of ICE’s callousness was the attempted arrest of a woman in Queens’ Human Trafficking Intervention Court (HTIC) on June 16, 2017. This action, along with the three completed arrests in the Queens Criminal Court that day, brought the total number of attempted and actual ICE arrests in New York City courts to date in 2017 to 38, or nearly five times the total number reported for the entire year of 2016. It must be repeated that these are not only undocumented immigrants, as news outlets often erroneously report, but also people with lawful status like green card-holders.
ICE has blamed Sanctuary City policies for the spike in courthouse arrests, arguing that preventing the agency from apprehending people in City jails and police precincts leaves them no choice but to find our clients in court. However, many of the local policies in question have been in effect for several years and, moreover, they only prevent City agencies from turning people over to ICE when there is no valid judicial warrant to verify the legitimacy of the arrest.
There is simply no excuse for ICE’s courthouse arrests. New York State Court officials must loudly and publicly rebuke these arrests and make clear that New York State’s policy is to prohibit them, unless there is a judicial warrant for an individual’s arrest. They must also ensure that court staff adheres to this policy. If ICE flouts this policy, we must all stand together with our colleagues and allies across the country and condemn the agency.
The following client stories are excerpted from affidavits written by BDS attorneys. These affidavits and others are attached to this testimony for your review.
ICE Arrests in Court: Adding to the Pressure on Innocent People to Plead Guilty
Many facets of our criminal legal system are used to pressure defendants to plead guilty, rather than mount a defense, including: bail and pre-trial detention, mandatory minimum sentences, the Blindfold Law, and missing work, family duties, and other appointments for seemingly endless court dates. The threat of arrest by ICE only adds to this pressure.
Mr. S had consistently attended several court appearances before ICE agents came to the Kings County Supreme Court to arrest him. His criminal defense attorney called his Padilla attorney to assist her in court. The Padilla attorney quickly arrived at the court house and attempted to speak to the Agents, but they refused. She asked the agents not to detain her client, which would interfere with his right to appear in court and resolve his case. However, as a result of ICE’s presence in court and intent to apprehend and detain Mr. S, the client decided to waive his right to trial, plead guilty to a lesser offense, and begin his jail sentence that day.
Mr. W’s case spanned nearly a year and included time before the 2016 election and the 2017 inauguration. He had been a Legal Permanent Resident (LPR) for more than ten years, with a stable address and an on-the-books job, when he was arrested on felony assault charges. Video footage was consistent with self-defense, and the case was swiftly reduced to a Misdemeanor. Mr. W knew he was innocent, and I believed we could and should win the case, so he refused to plead. He returned to court eight times before his case was ultimately completely dismissed and sealed. At each of the five court dates preceding the inauguration of the new federal administration, he was impressively positive and showed up to court early. His employer knew he was a good man and kept him on the payroll even though he’d have to miss work for court. He was confident that he would win and did not even consider a plea deal.
After the inauguration, everything had changed. Mr. W showed up to his next court appearance late, stressed and tearful. His eyes were bloodshot and he was shaking with fear. He hoped the case would finally be dismissed, but the prosecutor was still offering only a plea to a non-criminal violation. His attorney had to advise him that this plea would not be entirely safe given his immigration status. Also, even if he were to accept the plea, he would have to return to court to pay the surcharge. He decided to continue fighting. The case was adjourned. He walked out into the hallway and admitted to his attorney that he had heard about ICE making arrests in court and was utterly terrified to be there.
In this case, he had developed a long and trusting relationship with his attorney, and together they were able to work through the relative risks of showing up to court, failing to appear, or pleading guilty, and ultimately get the case dismissed. Most of our clients’ cases resolve much quicker than that, and many of them are too afraid to open up to use about their concerns because of their perceptions that everyone in criminal court is collaborating with ICE. This is devastating, as it interferes with our clients’ ability to feel safe and exercise their due process rights, as well as our ability to build trusting, confidential relationships with them. Ultimately, it only adds to the immense pressure on them to plead to whatever would resolve their cases and make space for the next New Yorker’s case to be called.
ICE Arrests in Court: Thwarting the Court’s Administration of Humane and Effective Justice
Another client, Mr. R, was detained and questioned by ICE outside the Brooklyn Mental Health Treatment Court. He is an LPR who had been successfully participating in a mental health treatment program for nine months and was well on his way to completing the program and resolving his case favorably. However, to this day, approximately eight month later, he remains in ICE custody at the Hudson County jail, where his seizure condition has become acute and the medicine he needs to treat it has been regularly withheld. BDS is very concerned about his health, including his mental health, especially given the history of substandard health care at the detention center and the recent death in custody there., We continue to advocate for humanitarian release from ICE custody, but in the meantime his criminal case—and, more importantly, his mental health treatment and life—have been derailed.
ICE Arrests in Court: Warrants Issued
Last month, a client decided to leave the country before receiving his sentence of probation due to fear of ICE apprehension in criminal court. The client was being assessed for a probation sentence. In the probation report, the probation officer noted in that she called ICE to confirm our client’s immigration status. After seeing this information in the probation report, our client became so afraid of his risk of being arrested by ICE in criminal court and detained, that he decided to leave the United States. As a result, this client was not sentenced and his case remains open.
On October 19, 2015, our client Clarence Threlkeld shared the story of his courthouse arrest in testimony before the Council. He was walking down a hallway in Brooklyn Criminal Court for a second appearance to answer Misdemeanor charges when he heard his name called. He assumed that it was the lawyer who would stand up on his case, but instead found himself arrested by two plainclothes ICE officers. After more than five months in detention at the notorious Hudson County Correctional Center in New Jersey, he received representation by a BDS attorney through NYIFUP, who discovered that he had a citizenship claim and never should have been detained. He was released three days later, and eventually won his immigration case. Yet the criminal court judge had already issued a bench warrant that appears on his record.
It is important to remember that people arrested by ICE but not deported still suffer serious harm. For example, approximately 30% of our New York Immigrant Family Unity Project (NYIFUP) clients ultimately win their immigration cases, but only after many months or years of detention, during which they are separated from their families and communities, where many are crucial income-earners and caretakers. People in immigration detention face inhumane jail disciplinary practices like long-term solitary confinement and are deprived of needed health care. They are unable to appear for ongoing criminal or family court matters as well because ICE is unwilling to have them produced for court. This act along shows that ICE is not concerned about due process and the legitimacy of New York State’s legal proceedings
Limiting Contacts with the Criminal Legal System
Ultimately, the surest way for local policymakers to protect immigrant New Yorkers from federal immigration enforcement is to limit involvement in the criminal legal system. BDS thanks Speaker Melissa Mark-Viverito and the Council for passing important legislation to reduce such contacts and mitigate the harm for those who do become court-involved. In response to costly lawsuits and also heeding this Council legislation, NYPD has begun to reduce arrests and criminal court summonses, and crime rates continue to decline. Accelerating these reductions and ending Broken Windows policing is urgent, now more than ever, as the Trump Administration uses dragnet local law enforcement actions and state-level convictions to aid in its mass deportation effort. ICE can identify and track our clients through arrest fingerprints shared by the NYPD with the National Crime Information Center database, court appearances and, troublingly, some probation agents who call the agency to check immigration statuses.
Three Active Reform Campaigns that Would Benefit from the Council’s Advocacy
- Ending Arrests of Human Trafficking Victims and Sex Workers
As BDS and others have reported for many years, mere arrests, even in cases that are later dismissed or resolved with a non-criminal violation, can lead to deportations, broken families and broken communities. Courthouse arrests are just one of many ways this occurs. Diversion courts like HTICs can help to reduce the likelihood of ICE enforcement actions by encouraging less punitive dispositions, but they can also serve as a trap, prolonging court involvement with mandated services. New Yorkers were rightfully shocked that ICE would even enter an HTIC part, and we must speak out against this impropriety, but policymakers should also ask themselves why a woman found to be a victim of human trafficking was arrested and prosecuted at all. The same question should be asked for those who voluntarily engage in sex work, many of whom are immigrants. Criminalization is a dangerous and inappropriate tool to help them move on to a different life, if that is the goal. Other major cosmopolitan cities permit and regulate the industry, enabling sex workers to openly organize and protect themselves and each other in ways that the criminal justice system is no substitute. Here in New York City, groups like the Red Umbrella Project and the Sex Workers Project are organizing for reform. Please consider holding a hearing on this subject.
2. Narrowing the Definition of Illegal Gravity Knives to Exclude Common Work Tools
Another common arrest charge that cuts against public safety is gravity knife possession. Under a poorly-written 1950’s law intended to criminalize a specific type of knife that is no longer in use, the NYPD has arrested tens of thousands of working New Yorkers for mere possession of tools like utility knives and box cutters. These arrests do not follow any allegations of criminal behavior, threats, or intent and serve no public safety purpose. Often, our clients are in their laborers uniform—a construction union or moving company sweatshirt, or a Local 1 Stagehand t-shirt—when they are arrested traveling to or from a job site. A.5667A-Quart / S.4769A-Savino, bill to reform the gravity knife statute to end the criminalization of workers for carrying their tools passed both houses of the Legislature for the second time this year. An earlier version was vetoed by Governor Cuomo last year. The Council’s advocacy with the Governor to sign the simplified version of the bill this year would help to convey the broad base of local support for it, even as the Manhattan DA uses fear tactics to lobby against it. Please consider a resolution or letter in support of the bill.
3. Legalization and Regulation of Marijuana Access
Lastly, it is long past time to end the drug war in New York City. The fourth and fifth most common arrest charges are low-level marijuana possession (18,136 arrests in 2016) and low-level non-marijuana drug possession (16,630 arrests in 2016), respectively. There is a growing recognition among policymakers of all parties, many of whom may struggle with addiction themselves or have friends or family members who struggle with addiction, that criminalization is an ineffective and, in fact, often very dangerous approach to drugs. The sharp racial disparities in these arrests—approximately nine-in-ten of those arrested are Black and/or Latinx—are inexcusable and the disproportionate adverse impacts, especially for immigrants, are severe. In fact, we are currently representing a man facing deportation due to his New York State marijuana possession conviction. As a preliminary step, the Council should sign-on as a supporter of the Drug Policy Alliance’s Start SMART NY campaign for state legislation enabling sensible and legal marijuana access through regulated trade that would help to economically empower those who are targeted under the current law.
With the surge in federal immigration enforcement actions against our families, friends, neighbors, co-workers, and clients, ripping apart our communities, New Yorkers must come together and make the necessary changes to build the sanctuary as promised.
Thank you for considering my comments.
 Rafael Bernal, Reports find that immigrants commit less crime than US-born citizens The Hill (2017), http://thehill.com/latino/324607-reports-find-that-immigrants-commit-less-crime-than-us-born-citizens (last visited Jun 27, 2017).
 Yoni Bashan, Immigrants in New York City Bolster Housing Values The Wall Street Journal (2014), https://www.wsj.com/articles/immigrants-in-city-bolster-housing-values-1397086910?tesla=y (last visited Jun 27, 2017).
 Alan Neuhauser, Sessions, Kelly Defend Courthouse Immigration Arrests U.S. News & World Report (2017), https://www.usnews.com/news/national-news/articles/2017-03-31/jeff-sessions-john-kelly-defend-courthouse-immigration-arrests (last visited Jun 27, 2017).
 Nina Bernstein, Health Care at New Jersey Immigrant Jail Is Substandard, Watchdog Groups Say The New York Times (2016), https://www.nytimes.com/2016/05/12/nyregion/health-care-at-new-jersey-immigrant-jail-prompts-claim.html?_r=0 (last visited Jun 27, 2017).
 Andrew Keshner & Victoria Bekiempis, Sick Honduran immigrant mistakenly cuffed by ICE dies in custody NY Daily News (2017), http://www.nydailynews.com/new-york/sick-honduran-immigrant-mistakenly-cuffed-ice-dies-custody-article-1.3263023 (last visited Jun 27, 2017).
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
The New York City Council Committee on Immigration
Supporting New York City’s DREAMers and “DACA-mented Youth
June 19, 2017
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. 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. 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. 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.
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.
Please feel free to contact me at firstname.lastname@example.org or 718-254-0700 ext. 309.
 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.
 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).
 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.
Thank you City Councilman Carlos Menchaca, Council Member Julissa Ferreras-Copeland, and the majority of New York City Council members for supporting NYIFUP.
ANDREA SAENZ SUBMITS WRITTEN TESTIMONY TO THE NEW YORK CITY COUNCIL EXECUTIVE BUDGET HEARING ABOUT THE NEW YORK IMMIGRANT FAMILY UNITY PROJECT (NYIFUP)
Andrea Sáenz – Supervising Attorney, Immigration Practice
BROOKLYN DEFENDER SERVICES
The New York City Council
Executive Budget Hearing
May 25, 2017
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:
- 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.
- 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.
- 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 in the 3rd Degree:
- 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 Degree:
- 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 Degree:
- 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 Degree:
- 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.
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 email@example.com. Thank you.
The story of Tony, Brooklyn Defender Services’ client, New Yorker, and legal permanent resident who is back home with his family thanks to NYIFUP.
On May 9th, 2017, 103 community organizations, including Brooklyn Defender Services, submitted a letter a to Mayor Bill de Blasio urging him to preserve universal representation for detained New Yorkers through the New York Immigrant Family Unity Project (NYIFUP.)
Nyasa Hickey – Supervising Attorney, Immigration Practice
BROOKLYN DEFENDER SERVICES
The New York City Council
Committee on Immigration, Committee on Public Safety
and Committee on Education
Joint Hearing on Immigration
April 26, 2017
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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. 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.
- 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. 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.
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 firstname.lastname@example.org or 718-254-0700 ext. 230.
 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.
 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.
“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.”
At a press conference on February 21st, immigration attorney Shawn Blumberg spoke on behalf of Brooklyn Defender Services on the effects of Broken Windows Policing and protecting immigrant New Yorkers from new Department of Homeland Security policies. Read BDS’ Statement here.
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.
Andrea joined BDS in 2016 as a supervisor in the Immigration Practice, as part of the team that provides deportation defense through the New York Immigrant Family Unity Project (NYIFUP), the first-in-the-nation immigration public defender program that BDS helped to pioneer.
Prior to joining BDS, Andrea was a Clinical Teaching Fellow in the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law, teaching and supervising law students in immigration and federal court cases. She received Cardozo’s “Inspire” award for faculty committed to public service and worked for three years on the budget advocacy that expanded NYIFUP at the city and state levels. Andrea has previously worked as an Immigration Staff Attorney at the U.S. Court of Appeals for the Second Circuit, a judicial law clerk at the Varick Street Immigration Court in Manhattan, and an Equal Justice Works Fellow at the Political Asylum/Immigration Representation (PAIR) Project in Boston. She has spent her legal career specializing in criminal immigration, deportation, and detention issues.
Andrea graduated from Harvard Law School cum laude in 2008 and received her B.A. in English from the University of California, Los Angeles in 2002. Between college and law school, she taught English as a Second Language to immigrant students in Houston through Teach for America. She speaks Spanish and is admitted to the bars of New York, Massachusetts, the Southern District of New York, the U.S. Courts of Appeals for the First and Second Circuits, and the U.S. Supreme Court. Andrea is proud to be working at the cutting edge of criminal, family, and immigration defense with the team at BDS.
Nyasa Hickey – Immigration Attorney
BROOKLYN DEFENDER SERVICES
The New York City Council Committee on Immigration Hearing
on Resolution 928A-2015
April 5, 2016
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, 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. 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. 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.
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.
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.
 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.
 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.
 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).
Nyasa Hickey – Immigration Attorney
BROOKLYN DEFENDER SERVICES
The New York City Council Committee on Immigration
Budget Hearing on
March 28, 2016
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. 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. ICE has also arrested clients in the courts as well as in sensitive locations such as homeless shelters. 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. 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, 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.
- 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, 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.
- 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.
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. 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.
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.
 Liz Robbins, “Rumors of Immigration Raids Stoke Fear in New York,” New York Times, Jan. 6, 2016.
 Pamela Constable, “Deportation raids to continue, despite outcry,” The Washington Post, Jan. 8, 2016.
 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.
 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
 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.
 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
 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/.
 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.
 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.
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
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.
“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.
Hannah McCrea joined Brooklyn Defender Services in 2012 and spent six years as a trial attorney in its Criminal Defense Practice. In 2018, she joined BDS’s Immigration Practice, specializing in the intersection of criminal and immigration defense.
Hannah discovered her passion for defending systemically-marginalized communities as a law student at Georgetown University Law Center. She completed Georgetown’s Criminal Defense & Prisoner Advocacy Clinic, where she defended criminal cases in D.C. Superior Court, as well as parolees facing revocation of their parole before the U.S. Parole Commission. In addition to her clinical experience, Hannah completed internships with the Public Defender Service for the District of Columbia and the Office of the Public Defender in Alexandria, Virginia.
Prior to attending law school, Hannah was Online Communications Director for the Constitutional Accountability Center (CAC), a think tank and civil rights firm that promotes, through historical research and litigation, the progressive text and history of our Nation’s Constitution. Her work at CAC included promoting the Founders’ promise of meaningful legal assistance to all individuals accused of a crime, regardless of race, national origin or ability to pay.
Hannah was a 2017 International Fellow with the International Legal Foundation (ILF) in the West Bank and Tunisia, where she trained and mentored legal aid attorneys in post-conflict and transitional legal systems. In her past lives, she has lived and worked in West Africa and Europe and earned degrees from the London School of Economics and Northwestern University. Hannah is now thrilled and honored to be representing such a diverse and vibrant community as Brooklyn.
Bridget Kessler is a Supervising Attorney with the New York Immigrant Family Unity Project (NYIFUP), a project that affords free legal representation to detained New Yorkers facing deportation. In that capacity, Bridget represents immigrants in removal proceedings. She also supervises and mentors NYIFUP Team legal fellows, attorneys, and pro bono law firm partners. Bridget joined BDS in 2014. Before moving to the NYIFUP team, she worked with BDS’ criminal defenders to provide their non-citizen clients with advice regarding the immigration consequences of contact with the criminal justice system. Prior to joining BDS, Bridget worked at the law firm Mayer Brown LLP as a litigation associate, where she represented clients in connection with a range of litigation matters and government investigations. In her first two years of practice, Bridget served as a Clinical Teaching Fellow at the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo Law School. While at the Clinic, Bridget supervised second and third year law students in their clinic case work representing immigrants in removal proceedings and representing community-based organizations in impact litigation and policy advocacy projects. She also co-taught a weekly seminar on immigration law and lawyering skills. Bridget graduated magna cum laude from American University Washington College of Law in 2009.