TESTIMONY OF:

Ellen Pachnanda, Supervising Attorney – New York Immigrant Family Unity Project

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on Immigration Preliminary Budget Hearing – Immigration

March 8, 2021

Introduction

My name is Ellen Pachnanda. I am a Supervising Attorney in the New York Immigrant Family Unity Project 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, for nearly 30,000 clients in Brooklyn every year. I thank the New York City Council Committee on Immigration, in particular Chair Menchaca, for the opportunity to testify about our budget needs to serve the immigrant community in New York City.

BDS’ immigration practice is a multi-unit practice that works to minimize the negative immigration consequences of criminal charges for noncitizens, represent our clients in applications for immigration benefits and defend our clients 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.

BDS is 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.

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.

Additionally, about a quarter of BDS’s 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.

The Impact of the COVID-19 Pandemic on the Needs of the People We Represent and Our Practice

As the pandemic raged in our city in 2020, ICE continued to detain hundreds of New Yorkers in detention facilities where COVID-19 spread rapidly. Fortunately, because of this Council’s commitment to legal services, BDS and our partners were able to respond quickly. In an around- the-clock team effort to free at-risk clients from dangerous ICE detention conditions, BDS filed federal litigation challenging detention in the COVID era in nearly 60 cases for 85 separate clients. In March 2020, BDS staff won the groundbreaking Basank v. Decker decision freeing 10 people with serious health risks from life-threatening detention –the first decision in the nation finding ICE deliberately indifferent to the safety of detained people. BDS shared resources with other attorneys and worked with The Legal Aid Society and Bronx Defenders to file case after case throughout 2020 fighting for the liberty of the people we represent. In total, the 3 NYIFUP offices have won the freedom of over 240 NYIFUP clients from March 2020 until now.

NYIFUP staff continued to advocate for the release of all clients through bond and merits trials at the Varick Street Court that, unlike the non-detained immigration courts, never closed during the pandemic. Despite the demands of remote representation of our clients–accessing clients in jail in order to prepare for hearings; telephonic hearings; and inability to obtain documentary evidence–we have won our clients’ freedom in bond hearings and won relief from removal in many cases.

In addition, BDS social workers and attorneys on both our ICAP and NYIFUP teams supported over 500 clients with pending deportation cases in the community during job losses, health crises and other hardships that affected their legal cases and their families. Our social workers made hundreds of virtual contacts and connected clients to services in extremely difficult circum- stances with many services closed for clients experiencing job loss, homelessness, sickness, and death of loved ones.

BDS was also able to utilize our presence on the ground to amplify through media the voices of people in dangerous ICE detention and who had been released.¹ Our undocumented clients have suffered disproportionately during the pandemic – with serious health issues and the lack of economic security. BDS created the Todos Together fund to provide material support for our clients who were left out of stimulus funds and other services. We also released a new and timely video in our animated We Have Rights series, We Have Rights: When ICE Arrests Us,² in August 2020, to help educate our immigration communities about ICE enforcement.

BDS’s immigrant clients have been hit extremely hard by the COVID-19 pandemic, both in their personal circumstances (including job loss, food insecurity, harassment from landlords for inability to rent, impending evictions), and in relation to the fallout from lack of operations of EOIR (immigration courts) and limited and dysfunctional operations by United States Citizenship and Immigration Services (USCIS).

Non-detained immigration courts have been closed since mid-March 2020; however, closure announcements have been made on a weekly basis, announced two weeks in advance of the “closed through” date. Consequently, staff have been working tirelessly to prepare for trials and hearings that are ultimately cancelled. Court preparation under the constraints and inadequacy of virtual meetings and back-and-forth mailing of documents is more time consuming than in regular circumstance. Our clients’ individual suffering and stress is at an all-time high due to COVID, thus adding further layers of complication in preparation as well as needs for additional social work and civil legal services relating to employment, benefits, and housing.

While USCIS operations have reduced on a less drastic scale than EOIR’s, USCIS’s error rate has skyrocketed. Our staff consistently deals with error such as erroneously rejected applications (often multiple times for the same client); massive delays in processing; USCIS failing to honor its COVID-related accommodations.³ Each USCIS error drains staff time due to USCIS’s inadequate customer service availability, ability, and willingness to remedy its errors. The drastic in- crease in time-per-case results in ICAP reducing the number of New York City residents we are able to serve.

Legal Service Needs, Opportunities and Challenges in the Biden Administration

BDS and our partners need resources to be able to respond to our clients’ immediate community needs, such as detained deportation defense, screenings and know-your-rights advisals as those outlined above, in addition to resources to affirmatively address a person’s immigration status. Our work on affirmative applications, including through IOI-supported ICAP initiative, is critical to help New Yorkers obtain stable immigration status and advice about their risk of enforcement, preventing them from ending up in a triage situation later.

As vaccines become more readily available, the non-detained immigration courts will reopen. Based on our experience during the pandemic, we anticipate that court reopening will be done with little to no notice to practitioners. We also expect that the courts will intent to move at a much quicker pace to accommodate the yearlong backlog – cases will go to trial much faster, which recognizes some level of due process; however, it does mean a considerable strain on our staff, and demands on our resources. NYIFUP’s success winning release from detention, along with immigration court backlogs, means that the three NYIFUP providers collectively have over 1,000 pending non-detained cases that will need review and litigation as New York courts re- open.

It remains to be seen how the new federal administration’s priorities will impact immigrant New Yorkers. If new forms of status, relief from deportation, or prosecutorial discretion are announced, NYIFUP will need to evaluate hundreds of cases individually for new options and case preparation. It is possible the Biden Administration will discontinue ICE enforcement and detention against New Yorkers, as the Obama Administration did, and target individuals who have had even incidental contact with a racist criminal justice system. Thus far, while the Biden Administration issued new “enforcement priorities” and memos in January and February 2021, ICE officers and attorneys have shown no willingness to use those priorities to release individuals in detention or review pending cases, stating that they are still awaiting more guidance. NYIFUP’s commitment to universal representation is critical to assure our communities that no fam- ily will be separated by deportation simply because they cannot afford counsel.

FY2022 Budget Asks

We ask that the Council fund immigration legal service providers to perform community out- reach, present know-your-rights presentations, conduct legal screenings, and handle both straightforward and complex cases. The New York City Council has demonstrated its leadership and support for immigrants through funding to legal service providers and the creation of NYIFUP. New York City should continue to protect the rights of New Yorkers by providing them with education, legal counsel and support, and ending policies we have mentioned in other City Council testimony such as broken windows policing and the targeting of communities of color through unnecessary arrests and incarceration.

BDS works to support immigrants and their families and communities every day, but the need for our services and those of the dozens of other legal service providers and grassroots organizations is more acute than ever. We look forward to working together to craft policy responses that will help protect immigrant New Yorkers, strengthen families, and stabilize communities.

1. New York Immigrant Family Unity Project

NYIFUP continues to be a model of access to justice nationwide and has inspired replication in many states and cities that want to stand beside their immigrant communities to ensure families are not separated by deportation because they cannot afford counsel. Nationwide, there are now dozens of cities that have committed public dollars to deportation defense, with NYIFUP as the gold standard and the model. This includes recently expanded funding in New Jersey and Pennsylvania’s renewed program, PAIFUP (the Pennsylvania Immigrant Family Unity Project.) New York’s NYIFUP organizations regularly provide support and training to those programs.

We ask that for FY2022, the City Council continue funding NYIFUP to allow us to retain our flexibility to address crises, like we did throughout 2020, and remain in intake at the detained immigration court throughout the year. NYIFUP work increasingly requires appeals to the Board of Immigration Appeals, which itself has become more hostile and political, appeals to the Second Circuit Court of Appeals, and federal court habeas corpus litigation. Nevertheless, we are dig- ging in and doing the work to zealously represent our clients and neighbors, and we are grateful to partner with the Council to make sure we have the resources to keep up that fight.

The NYIFUP Coalition submitted a joint request for $16.6 million, split evenly among the three providers, to fully fund the New York Immigrant Family Unity Project in FY2022. This funding would allow this partnership to continue capacity to handle its large volume of direct representation to low-income detained New Yorkers facing deportation, including staffing intake at the Varick Street Court five days a week so we do not miss a single person who is starting their removal case locked up without an attorney. As our communities begin to emerge from a devastating pandemic, the hope of new forms of status on the horizon, but a need for vigilance against the continuing criminalization of immigrants, this project is more important than ever to prevent New York families from being torn apart.

2. Immigrant Opportunities Initiative (IOI)

BDS’ ICAP team serves a large number of individuals in naturalization, adjustment of status, DACA, SIJS, and other affirmative asylum applications with USCIS. Most affirmative applications used to be considered straightforward and requests for additional evidence and denials were less common; however, the Trump administration effectively built an “invisible wall” inside its agencies by implementing hundreds of draconian policy changes. These changes resulted in a steep increase in erroneously rejected applications, applications rejected for empty boxes on forms, or simply and most often for failing to read the applications submitted. While these practices frustrate practitioners and delay applications, applicants without attorneys who lack the le- gal skills or resources to navigate the system are left without recourse and without immigration status.

One representative example is our client that was applying for naturalization (U.S. citizenship). Prior to coming to BDS, he filed for citizenship pro se (and paying the filing fees), attended an interview, and passed the required tests; however, the interviewing officer sent a follow up letter requesting additional documentation. The client never received the letter due to being the victim of identity theft. Once he learned the application was denied for failure to respond, he requested a re-hearing, which required yet another filing fee. In response, USCIS erroneously rejected the application, denying his request for re-hearing. It was only when a BDS attorney engaged in various, time-consuming advocacy strategies that she was able to convince USCIS to recognize and accept their responsibility for its black-and-white error. USCIS eventually corrected its error, held a re-hearing interview, and the client was sworn in as a citizen. USCIS’s mistakes and de- lays resulted in his family being separated across international borders tremendously longer than necessary. BDS is now representing him on his petitions for his children abroad to join him in the U.S.

Working in collaboration with our NYIFUP team, once a person is released from detention through BDS's NYIFUP representation, if there is a benefit that requires an affirmative application, our ICAP team assumes their immigration case through a seamless internal referral process (e.g., if they can apply to USCIS for a benefit that the judge does not have jurisdiction over, such as a U visa, SIJS, or a spouse’s visa petition on their behalf). ICAP also assists people after a removal case is complete such as when relief is granted and there are next steps like green card renewals, citizenship, petitions for other family members, citizenship, orders of supervision, applications for employment authorization, etc. These critical immigration services comprise BDS’s non-detained immigration legal and social services and are a necessary component of supportive immigration assistance for people in New York.

New York City non-citizen residents have needed advice and assistance even more frequently since the Trump administration began its harsh immigration policy in this country. Although Trump has left office, many of his policies remain and continue to impose lasting damage that will take much time and effort to remedy, where even possible. Further, and just as importantly, momentum is growing for the Biden administration to make drastic changes, both to revert some policies and to immigration benefits that will impact hundreds of thousands, if not millions of noncitizen residents. Given our experience and trust with our clients, BDS needs to be in the position to respond and serve our clients before these changes go into effect. We need robust funding to have sufficient capacity and reinforce our infrastructure to serve as many clients poised to benefit as possible. With increased funding we will also be able to educate the broader community to protect them from unscrupulous predators that will certainly be taking advantage of changes in ways that harm our noncitizen community members both legally and financially.

Increased funding is needed for BDS to more comprehensively serve New York City’s immigrant youth, families, and communities with desperately needed high-quality immigration legal services. This funding would help BDS continue serving New York City’s immigrant families by providing legal screening, advice, and direct representation to low-income immigrants 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 and orders of supervision.

We ask that the Council support our IOI ask of $200,000 to expand our ability to provide direct immigration legal services and Know Your Rights trainings to Brooklyn residents.

Conclusion

The Council continues to play a critical role in safeguarding New York City’s immigrant com- munity. This Council has been a national leader in the creation of the NYIFUP program and a champion for the importance of access to high-quality immigrant legal services. We are not “out of the woods” in terms of the lasting harm to our communities that has been done by the Trump Administration, nor is there a guarantee that the Biden Administration will follow through on new forms of relief that do not leave behind the most marginalized immigrant communities, including BDS’ clients.

BDS has worked to protect the rights of the people in our communities every day for 25 years, but the need for our services is more acute than ever. BDS’ requested funding will ensure we can continue to provide quality legal services to immigrant New Yorkers.

We thank the New York City Council for your continued support of low-income immigrant New Yorkers. If you have any questions, please feel free to reach out to Kristine Herman, Director of Policy and Advocacy at kherman@bds.org.

¹ See, e.g., ICE Detainee Says Migrants Are Going on a Hunger Strike for Soap, Pro Publica, March 23, 2020, https://www.propublica.org/article/ice-detainee-says-migrants-are-going-on-a-hunger-strike-for-soap; Detainees De- scribe Life In ICE Detention During the Pandemic, The Intercept, July 27, 2020, https://theinter- cept.com/2020/07/27/coronavirus-ice-detention-2/

² See https://www.wehaverights.us/

³ e.g. refusing to allow attorneys to appear telephonically for interviews, erroneously denying applications where clients have followed protocol for rescheduling related to experiencing symptoms, known exposure, or observing quarantine requirements following travel out of state.