TESTIMONY OF:

Catherine Gonzalez – Senior Staff Attorney and Policy Counsel

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration Jointly with the Committee on Criminal Justice

Oversight Hearing – NYC Detainer Laws

June 9, 2021

My name is Catherine Gonzalez and I am a Senior Staff Attorney and Policy Counsel in the Immigration Practice at 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 to nearly 30,000 people and their families in Brooklyn every year. I thank the New York City Council Committee on Immigration and Committee on Criminal Justice, in particular Chair Carlos Menchaca and Chair Keith Powers, for the opportunity to testify today about the New York City detainer laws and proposed legislation regarding communication between city law enforcement agencies and federal immigration authorities.

BDS’ multi-unit immigration practice works to minimize the negative immigration consequences of criminal charges for non-citizens, represent people in applications for immigration benefits and defend people against ICE detention and deportation. Since 2009, we have counseled, advised, or represented more than 15,000 clients in immigration matters including deportation defense, affirmative applications, advisals, and immigration consequence consultations in Brooklyn’s criminal court system.

About a quarter of BDS’ criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of losing the opportunity to obtain lawful immigration status as a result of criminal or family defense cases. Our Padilla criminal-immigration specialists provide support and expertise on thousands of cases, including advocacy regarding enforcement of New York City’s detainer law, individualized immigration screenings, and know-your-rights advisals.

BDS is also one of three New York Immigrant Family Unity Project (NYIFUP) providers and has represented more than 1,500 people in detained deportation proceedings since the inception of the program in 2013. Our NYIFUP team represents people in detained and non-detained removal proceedings in bond, merits hearings, release advocacy with ICE, administrative and federal court appeals, and federal district court challenges to unlawful detention.

Additionally, our Immigration Community Action Program (ICAP), which receives Immigrant Opportunity Initiative (IOI) funding, represents people in non-detained removal proceedings as well as applications for immigration benefits, including family-based applications for lawful permanent status, fear-based applications, U & T visas, Special Juvenile Immigrant Status (SIJS), DACA renewal and related applications. BDS’ ICAP team specializes in providing affirmative immigration legal services in complicated cases and prioritizes people that are current or former clients of BDS and their families, formerly justice-system involved non- citizens, community residents referred from partner organizations, and individuals referred by constituent affairs offices.

Thank you, City Council, for your continued funding of indigent defense for immigrant New Yorkers and low-income people.

Background

Immigration and Customs Enforcement (ICE) and its predecessor, the Immigration and Naturalization Service (INS), has long relied upon state and local criminal legal systems to find non-citizens who may be removable in order to detain them and subject them to the civil deportation process. Historically, ICE, and the legacy INS, would identify undocumented or deportable people in jails and prisons and issue an “immigration detainer” to detain a person for up to 48 hours beyond their mandated release time so that ICE could assume custody of the person and transfer them to an immigration detention facility. Multiple courts across the United States, including in New York State, have held that this practice is unconstitutional.

New York City, and in particular, the City Council, continues to be a leader in the protection of non-citizen residents. In October 2014, the Council passed groundbreaking legislation (detainer discretions laws)¹ that removed ICE from Rikers Island and prevented Department of Corrections (“DOC”), the New York City Police Department (“NYPD”), and Department of Probation (DOP) from unlawfully detaining non-citizens without a judicial warrant.

These detainer discretion laws were intended to prevent non-citizens detained in DOC and NYPD custody from being transferred to immigration detention, with hopes of sparing thousands of New Yorkers from the mass-deportation regime. However, given the intransigence of ICE’s aggressive apprehension and detention policies, and the agency’s enforcement priorities, seven years later, it is evident that our criminal legal system continues to cause non-citizens to be apprehended by Immigration and Customs Enforcement (“ICE”).

Detainer requests and requests for notification are encompassed on one form. ICE’s immigration detainer form² requests the law enforcement agency to which it is sent that they both “[m]aintain custody of the alien for a period NOT TO EXCEED 48 HOURS beyond the time when he/she would otherwise have been released from…custody to allow DHS to assume custody”³ and [n]otify DHS as early as practicable (at least 48 hours, if possible) before the alien is released from…custody.”⁴

Notification Exception

The 2014 detainer laws include an exception that allows DOC and NYPD to notify the Department of Homeland Security (DHS) of an individual’s release based on a finding of “dangerousness,” as established by a recent conviction for one of the enumerated 177 offenses, or inclusion on the terrorist watch list.

In the past seven years, BDS clients have continued to be arrested by ICE agents immediately upon their release from DOC custody (whether at Rikers Island or the Brooklyn Detention Complex) and transferred to immigration custody. BDS believes that in those cases, DOC notified ICE about the individuals’ pending release pursuant to a request for notification and ICE arrested and detained the individuals.

What we are seeing is, essentially, a fluid transfer of custody between DOC and ICE under the purview of the notification exception. Whether there has been a violation of the detainer laws is a question BDS cannot answer because there is a lack of transparency. We do not have information about the actual communications between DOC and ICE. We do not know whether our clients for whom DOC receives an ICE detainer are released after the same amount of time as a client with no ICE detainer. Importantly, we suspect that DOC compliance with ICE requests for notifications may be reason behind some, often unexplained, delays in BDS clients’ release from DOC custody.

In these instances, our BDS attorneys, appointed by the criminal court to represent these individuals, are 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 are informed generally that the individual was to be released pursuant to the DOC detainer law. Subsequently, BDS has not been informed about the release of the individual to ICE custody directly from DOC custody.

Additionally, BDS is not provided with a copy of the detainer or request for notification to determine whether or not it was lawful or accurate. Finally, we are also not provided sufficient information about who within the Department makes the ultimate determination to release our clients to ICE or who notifies ICE of pending release of our client and under what authority that determination is based.

These instances highlight the 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 are essentially blocked from being able to fulfill that mandate and defend the rights of 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 alleged basis of that detainer, and the City’s determination about whether or not the detainer or request for notification will be fulfilled.

We know from our experience that even minor offenses, often the result of over-policing, can result in mandatory incarceration in DHS detention facilities for someone who is hauled into immigration proceedings. New York City should not be aiding and abetting in this. ICE detainers are only one link in a chain that ties our clients to the detention and deportation system. With or without a detainer, ICE can arrest people at home, work, and around court, detain them or release them, and give them a court date for deportation proceedings. After a person’s transfer to ICE custody, it can be needlessly difficult and labor intensive to successfully navigate the bureaucracy involved in having ICE produce them back to DOC custody for purposes of resolving their criminal cases. This task falls to both the District Attorney and the Courts, as defense counsel is unable under the Criminal Procedure Laws to request a writ of habeas corpus ad prosequendum.

Mere arrests, regardless of findings of innocence or case dismissals, can trigger deportation actions. All fingerprints taken by the NYPD are automatically provided to the FBI and ICE. The NYPD’s high-arrest policies thus effectively provide the federal government with ready-made lists of thousands of immigrant New Yorkers whose humanity, family and community ties, and even lawful residency, can be undermined simply because they bear the label of “criminal” for the most paltry alleged offenses. ICE collects information gathered through arrests regardless of whether the District Attorney declines to prosecute a case, a case is still pending so has no final resolution, all the charges are dismissed, or a case results in a non-criminal violation. This information gathering happens irrespective of any communications ICE has with DOC.

NYC DOC Officers Not Accepting Bail for Cases with ICE Detainers

Additionally, we frequently encounter issues with DOC officers at the bail windows refusing to accept payment of bail for BDS clients for whom DOC has received a detainer from ICE. These refusals often result in delays in someone’s release.

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.

We have heard of NYC DOC officers erroneously telling family members and friends that if they pay bail, DOC will call ICE and the person will be transferred to ICE custody, regardless of whether the person has a prerequisite prior conviction or is listed on a terrorist watchlist. In these instances, BDS attorneys’ step in and contact DOC Legal and the DOC ICE captain to confirm whether there is a judicial warrant for the person and after confirming that there is no judicial warrant, we explain to the family members or friends to pay the bail despite the bad information they are receiving from the DOC officers at the bail window. While we have not seen this situation result in someone’s actual transfer to ICE custody, it often results in BDS clients spending additional time in DOC custody.

At BDS, we work at the intersection between the criminal legal system and the immigration legal system and witness everyday how it treats immigrant New Yorkers unequally. Small criminal legal system contact can end up leading to permanent separation from family and exclusion from this country because of the entanglement of the criminal legal system with the immigration legal system.

All New Yorkers benefit when our diverse communities can thrive together. As this Council has always noted, immigrants, regardless of their status, are the backbone of our City, our culture and our economy. The 2014 Detainer Discretion Laws were a critical step in the right direction, and we applaud our City Council’s leadership in forging these city laws. However, immigrant communities continue to face an enormous threat 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.

Recommendations

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

1. Eliminate the notification exception to the detainer laws. The past seven years have uncovered that this exception is merely a loophole which allows for the continued entanglement of our city agencies with the federal mass-deportation regime.
2. Defense counsel should be notified immediately if there is a detainer or a request for notification from ICE to NYPD, DOC or DOP. People in custody and their counsel must be provided with a copy of the detainer, request for notification and any accompanying information issued by federal law enforcement.
3. DOC, NYPD, and DOP should be required to 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 respective agency’s legal departments.
4. Require DOC to contemporaneously document movement from scheduled release time to time of actual release. These notes should be made available to person who is detained and to their counsel without having the need for a FOIL request.
5. Require documentation of any communication between DOC, NYPD and/or DOP with ICE. These requirements 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.
6. The reporting requirements for NYPD, DOC 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 National Crime Information Center (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;

Client Story

BDS has represented many people over the past seven years who, after being detained in DOC custody, ended up in a DHS detention facility. BDS believes that in those cases, it was a notification by DOC to ICE about the individual’s pending release that led to those clients ending up in immigration custody.

Today, we wish to highlight the story of our client Juan Cruz Mestizo because his story is an important example of how these interactions–cooperation, and collaboration of City agencies with ICE and information sharing between agencies and the intersection of the criminal legal system with the immigration legal system–can have tragic results.

Juan Cruz Mestizo was loving a husband, father, and grandfather. He is described as the heart of his family. He was an active member of his community and had been continuously living in Brooklyn since 1989. In 2018, Mr. Cruz Mestizo became a NYIFUP client after ICE raided his workplace and unnecessarily detained him. Mr. Cruz Mestizo was the only member of his large immediate family who was not a U.S. citizen. Around mid-2018, he was transferred to Rikers from ICE custody for a pending misdemeanor. In April 2020, Mr. Cruz Mestizo was in DOC custody at Rikers when he contracted COVID-19. Mr. Cruz Mestizo became very ill and ended up on a ventilator, handcuffed to a bed at Bellevue Hospital, with an officer from DOC posted at his bedside. His bail was set at $1.00 because there “an immigration hold” pursuant to an ICE

detainer requesting that he be transferred back to ICE custody upon completion of the proceeding although ICE had no legal requirement to detain Mr. Cruz Mestizo. Our attorneys advised Mr.

Cruz Mestizo’s family to pay the $1 bail. Mr. Cruz Mestizo’s son paid the $1 bail on May 22, 2020 (and the receipt DOC gave him had a note that said “immigration detainer”). Even after the bail was paid, DOC refused to remove the handcuffs from Mr. Cruz Mestizo (although he was still on a ventilator and unable to physically leave his own bed). The DOC officer refused to leave the hospital under the horrendous premise that Mr. Cruz Mestizo was a “borrowed

prisoner” and therefore DOC could not remove the handcuffs or officer posted at his bedside until ICE lifted the detainer request. Due to Mr. Cruz Mestizo’s grave condition, ICE ultimately granted our request asking to lift the hold and release him on his recognizance, and thereafter DOC discharged him. After being admitted to Bellevue, Mr. Cruz Mestizo spent 21 days struggling for his life while handcuffed to his bed. He spent 21 days being guarded by a DOC officer while struggling to breathe. His family spent 21 days painfully witnessing how their

father’s dignity and their familial communications were disrespected by those handcuffs and DOC’s presence. Ultimately, DOC removed the handcuffs and redeployed the DOC officer from Mr. Cruz Mestizo’s bedside. Tragically, Mr. Cruz Mestizo died 20 days later at Bellevue Hospital. This Friday, June 11, 2021, will be the tragic one-year anniversary of Mr. Cruz

Mestizo’s unnecessary death. We believe that Mr. Cruz Mestizo died because he was caught within the intersection of these inhumane systems.

Proposed Legislation

BDS supports Res. 1648-2021, which calls on the New York State Legislature to pass, and the Governor to sign, the New York for All Act (A.2328 / S.3076), which would

prohibit and regulate the discovery and disclosure of immigration status by New York state and local government entities.

ICE’ continued intimidation and terrorization of communities in New York must end. For years ICE has cruelly targeted immigrants and separated families. To do this, ICE relies on local law enforcement and government agencies to search for, arrest, and deport people, and to separate families who are part of our state. This is a misuse of our local tax dollars and resources for ICE’s racist and abusive agenda.

The passage of New York For All Act is an opportunity not only to strengthen the City’s current detainer laws but also to bring uniformity to the state with regards to how all of our City and state agencies interact with ICE.

BDS supports the pre-considered introduction in relation to a private right of action. BDS supports legislative efforts to ensure people have their day in court. This bill is an important step, and we welcome the opportunity to discuss with the Council Member's staff to ensure the most robust protection.

BDS supports the pre-considered introduction in relation to limiting the circumstances in which a person may be detained by the police department on a civil immigration detainer. The bill makes clear that city officers and employees shall not accede to requests by federal law enforcement agencies to support or assist in operations primarily in furtherance of federal civil immigration enforcement and that no city resources shall be used for such efforts.

BDS supports the pre-considered introduction in relation to limiting communication between the department of correction and federal immigration authorities.

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

Conclusion

BDS is grateful to the Committee on Immigration and Committee on Criminal Justice for hosting this critical hearing and shining a spotlight this issue. We thank the Council for your continued support of low-income immigrant New Yorkers. The Council continues to play a critical role in safeguarding New York City’s immigrant community. Thank you for your time and consideration of my comments. If you have any questions, please feel free to reach out to me at cgonzalez@bds.org.

¹ NYC Administrative Code §§ 9-131, 9-205, and 14-154, available at https://www1.nyc.gov/assets/im...

² Department of Homeland Security, Form I-247A (Immigration Detainer—Notice of Action), available at

https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf

³ Id.

⁴ Id.