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ICE Limits Access To Lawyers For NYC Immigrants In Detention, Citing Protests

Advocates decry court's shift to using teleconferencing for hearings.

Activists moved their signs across the street from 201 Varick on Tuesday.
Emma Whitford

ICE Limits Access To Lawyers For NYC Immigrants In Detention, Citing Protests

Advocates decry court's shift to using teleconferencing for hearings.

On Sunday, President Trump called for abandoning due process for immigrants, tweeting, “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” In New York City, public defenders say ICE is showing a similar disregard, preventing detained immigrants from meeting with lawyers—and blaming it on protests nearby.

Members of the Metropolitan Anarchist Coordinating Council (MACC) launched an occupation of the immigration court at 201 Varick St. last week, inspired by similar ICE facility occupations cropping up nationally. Dozens of activists set up tarps and folding chairs in front of the building’s loading docks to prevent Department of Homeland Security vans from entering or exiting the building with detainees.

On Monday, ICE announced that all hearings at 201 Varick St. were canceled for the day. “This decision was made in order to ensure the safety of ICE employees, the court, the public and the detainees,” ICE spokesperson Rachael Yong Yow told The Appeal.

Occupiers agreed to move across the street and clear the loading dock areas Monday night, however, after public defenders and immigrant groups, including New Sanctuary NYC and Make the Road New York, stressed the negative consequences of disrupting bond hearings and other hearings aimed at client relief. “We wanted to work with immigrant communities,” Marisa Holmes, a spokesperson for MACC, said Tuesday. “We think being on the other side of the street is allowing hearings to continue, which is important.”

Yet ICE continued to refuse to transport detainees to the courthouse, citing safety concerns. The Executive Office for Immigration Review, which runs the court, confirmed Tuesday that rather than in-person hearings, it would use teleconferencing for all deportation and bond hearings, in which a defendant appears on a screen in the courtroom. Amanda St. Jean, a spokeswoman for the immigration review office confirmed the plan to use teleconferencing until it hears otherwise from ICE. It remained in place Wednesday, even though the occupation had dispersed entirely. “I think this claim that they are concerned about safety sounds like an excuse to punish the occupiers by punishing our clients,” said Scott Hechinger, senior staff attorney and director of policy for Brooklyn Defender Services.

Protesters outside 201 Varick Street on Monday
Credit: Emma Whitford

The shift to teleconferencing upended client intake this week for the New York Immigrant Family Unity Project, a city-funded initiative that has offered free legal representation to detained immigrants facing deportation since 2013. Their services close a legal loophole, since the U.S. Constitution does not guarantee legal representation in immigration court and most of the city’s detained immigrants went unrepresented in court before the project began. The project’s attorneys meet with detained clients scheduled for intake at 201 Varick three times a week.

For project attorneys, intake is a chance to familiarize themselves with complex cases and begin exploring potential relief options, such as filing a green card application or a motion to cancel a removal. ICE recently set up a small area with interview rooms on the building’s 11th floor, where attorneys spend 20 to 40 minutes screening each new client. It is unclear if and how clients will be able to access attorneys now.

During hearings, the emotional advantage of in-person appearances is significant, according to the family unity project. Clients, many of whom have been detained for months, get to see family members in the courtroom. Over video, said Andrea Saenz, a supervising attorney for Brooklyn Defender Services who directs its family unity project contingent, “You can’t hand your client a tissue if they are crying. The judge might not see them as a real person, but as a person on a television show.”

No clients appeared on Wednesday morning. A list posted inside the court showed more than ten unrepresented detainees who would have likely had a chance to meet with the family unity project under normal circumstances, according to Brooklyn Defender Services attorney Zoey Jones.

“Our biggest concern is that now we have no way of communicating with these people,” Jones told The Appeal. “If we can’t speak to them, they won’t understand why they didn’t get to go to court today, or why they don’t have a lawyer.”

Public defenders consider ICE’s decision to cancel detainee transports for three days and counting retaliatory. “There aren’t even protesters there,” said Saenz. “I could have never guessed that this would be the outcome of a small protest, because 201 Varick has been the site of protests for years. I’ve seen people lying down in the street and that didn’t stop court hearings.”

ICE has used protests to justify similar moves elsewhere this month. In Oregon, legal presentations with local immigration attorneys were canceled on June 20, 21, and 22 because “the ICE building was inaccessible due to ongoing protests,” Carissa Cutrell, an ICE spokesperson, told The Appeal. In response to an ACLU lawsuit, a federal judge has ordered the government to provide lawyers with access to the detainees at Oregon’s FCI Sheridan for a minimum of six hours a day for at least the next month, as well as “know your rights” trainings and individualized interviews by attorneys with detainees.

ICE did not immediately respond to a request for comment Wednesday about when it would resume transports to 201 Varick St., although a court employee told one family unity project attorney that operations could be back to normal as soon as tomorrow.

Cory Forman, another attorney who works with immigrants at Varick Street, had a different take after speaking with an ICE representative this week. “They feel that transporting detainees to court poses a risk to their officer’s safety, based on threats that they’ve received and the blocking of vans,” he said. “I specifically asked if this was going to be permanent, how long is this going to go on, and the impression I got is that it will definitely be for the foreseeable future and as long as they feel there’s a risk of safety to their officers, that’s what’s going to happen.”

ICE did not immediately respond to a request for comment on detainees’ access to legal assistance.

“The main thing that’s concerning me right now is simply getting people lawyers to help with cases,” Saenz said. According to Saenz, most of her clients are in detention for at least two months before their first court date.

“While people are sitting and waiting in detention and they don’t have lawyers, some of them are going to give up. They will just say, ‘Deport me.’ And that’s heartbreaking.”

This story has been updated with quotes from Cory Forman. Additional reporting by Max Rivlin-Nadler.

Thousands of ‘Lawyer Moms’ Will Swarm Congress To Fight For Migrant Children

'We have a reaction as mothers to what’s been going on.'

Central American asylum seekers wait as U.S. Border Patrol agents take them into custody on June 12, 2018 near McAllen, Texas.
John Moore/Getty Images

Thousands of ‘Lawyer Moms’ Will Swarm Congress To Fight For Migrant Children

'We have a reaction as mothers to what’s been going on.'

What began as an online support group for lawyers with children has become a mobilizing force for thousands of people planning to bombard congressional offices nationwide on Friday in protest of the federal government’s treatment of migrant children and their parents.

Kate Lincoln-Goldfinch, an immigration attorney in Texas, wrote that she recently hit “the lowest moment in [her] career” when she met with an asylum seeker who had been separated from her son under the Trump administration’s new “zero tolerance” policy. According to Lincoln-Goldfinch, the woman had been holding the 5-year-old in her lap when an officer approached and informed her that he would be taking the boy “to the other side.”

My son clung to me and said he didn’t want to leave me,” she told Lincoln-Goldfinch. “The official grabbed him out of my arms and took him away and I just stayed there crying and crying.”

Lincoln-Goldfinch shared her client’s story in a “lawyer moms” online forum and found she was far from alone. The “heart-wrenching” stories these attorneys were hearing from new clients inspired the group to organize, Erin Albanese, an attorney in Washington State, told The Appeal.

Albanese, Lincoln-Goldfinch, and fellow moms decided to confront legislators face to face. They created a separate Lawyer Moms of America Facebook group on June 7 to plan and announce Friday’s Day of Action. Participants plan to drop off letters to demand family reunification and an end to the indefinite detention of migrant children who enter the country.

The online forum was not politically engaged before now. But once the Facebook group was created, the network of lawyer moms and their allies grew exponentially. There are now 15,000 supporters of the Facebook page, and Albanese estimates that roughly 50 percent of the people participating in Friday’s action are lawyers and mothers.

”We have a reaction as mothers to what’s been going on,” Albanese said. “As lawyers, the rights violations and illegality of it all really resonated with us in a different way.”

The action was first envisioned as a protest against the indiscriminate separation of children from their families, which ramped up after the Trump administration announced its zero-tolerance approach to prosecuting undocumented immigrants in April. As directed by Attorney General Jeff Sessions, federal prosecutors are to pursue criminal charges against anyone caught attempting to cross the border into the U.S.  The policy has resulted in migrant children, who can’t legally be detained by federal immigration officials, being torn away from loved ones.

Now, organizers are expanding the scope of Friday’s event to protest the potential incarceration of migrant children under a “temporary detention policy” outlined in an executive order signed by President Trump last week. The order directs the Department of Homeland Security to keep migrant children and parents locked up together. Detained children, including those separated from their families and ones who crossed the border as unaccompanied minors, have already been kept in tents in scorching hot weather, injected with psychotropic drugs against their will, and beaten and berated.

”It’s an issue that’s pretty universal,” Albanese said of the separations. Trump’s executive order did little to assuage the group’s concerns. “[It] appears to provide for migrant families to be detained together indefinitely, essentially creating internment camps,” Albanese said. The order also fails to address the plight of children who have already been separated, as Trump has punted the responsibility of coming up with a reunification plan to Congress.  

Until that happens, children will continue to suffer in detention and flounder during court proceedings, said Minda Thorward, another Lawyer Moms of America organizer based in Washington State. Thorward, who also practices immigration law, said stories of children holding on to drawings of their loved ones resonated with her. “These are people who are already fleeing horrible conditions: domestic violence, gang violence, even just abject poverty. Not having children with their parents just compounds that trauma,” she told The Appeal.

Emotional trauma is not the only consequence of separating children from their parents, Thorward said. Immigration court does not guarantee the right to counsel, which means young people—including babiesmust somehow represent themselves in complex interrogation over why their families left their homes.

“Are they part of a particular social group? Where is a safe place in their country [where] they could live? Did they try to go to the police in order to get protection? None of that is articulable by a 3-year-old or even a 6-year-old,” Thorward said.

The results of this breakdown are already becoming clear. Sitting before a judge last week, a 3-year-old boy in El Paso reportedly stared at a picture book and responded “¡Es un avión!”—It’s a plane!—when asked for his name.

According to Albanese, demanding that members of Congress reunify and assist migrant children is just the starting point for the newly politicized Lawyer Moms of America. The group has already created a list of resources and possible actions for supporters to take, such as calling their governors to pull the National Guard from the border or pressuring state attorneys general to sign on to federal lawsuits against the latest detention orders. Individual lawyer moms have also protested outside detention centers alongside immigration rights organizations. But future political engagement will largely depend on what Congress does.  

“Our goal is to end family separations and indefinite detentions and to reunite the families. Until that is happening, we’ll keep finding ways to raise our voices,” Albanese said. “We’re gonna hold their feet to the fire.”  

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A Massachusetts District Attorney Tries To Crown His Successor

In the Berkshire County DA race, the establishment is resorting to extreme measures to ensure it maintains power and avoids change.

Departing Berkshire DA Doug Capeless and his interim successor, Paul Caccaviello
Berkshire County District Attorney

A Massachusetts District Attorney Tries To Crown His Successor

In the Berkshire County DA race, the establishment is resorting to extreme measures to ensure it maintains power and avoids change.

Berkshire County, the sparsely populated Massachusetts region abutting New York, should be gearing up for an unusual event in the fall: an open race for the district attorney’s seat. But the departing DA short-circuited that electoral process and anointed his successor through backdoor channels. Emails obtained by The Appeal reveal how the old guard has tried to hold on to power and beat back reformers’ challenge.

On March 1, Berkshire District Attorney David Capeless stepped down after 14 years in office. The resignation was apparently a strategic move to ease the path to election for his hand-picked successor, First Assistant District Attorney Paul Caccaviello, with the help of Governor Charlie Baker.
“I’m taking this step now,” Capeless told reporters at his resignation press conference, “because I want Paul to be able to run as the district attorney, as I did 14 years ago…. I want to thank Governor Baker and Lt. Governor [Karyn] Polito for their careful consideration and confidence that Paul is the right person for the job.”

Running as an incumbent is a huge advantage, said Drew Herzig, an organizer with Indivisible Pittsfield, a local progressive group. Incumbency affords candidates the weight of the office and allows them to draw on existing donor and influence networks — no small feat in the Berkshires, where candidates don’t need a lot of money to be competitive and where reputation and connections can be key to influencing voters.

Emails between Capeless and Baker’s office, reviewed by The Appeal and included below, tell a story of what numerous criminal justice professionals and observers described as an unprecedented level of cooperation between the DA’s office and the Baker administration to handpick the DA.

The handoff appears to have received the governor’s blessing after a meeting on Feb. 7, the emails show. Baker’s chief legal counsel, Lon Povich, coordinated meetings for Capeless and Caccaviello with both Baker and Polito. Capeless sent the governor’s office a timeline for his resignation and Caccaviello’s appointment, the emails show, but Povich was unable to endorse Capeless’s proposed sequence of events until the February meeting.

Capeless told Povich he intentionally took out re-election papers before his March 1 announcement to confuse  local media.

“Still on track,” Capeless reassured Povich of the handoff to Caccaviello, “just stalling.”

Later, Povich provided feedback on Capeless’s resignation letter.

“Glad this is working out,” he wrote.

Capeless said repeatedly in emails to Povich that he was delighted that the transfer of power would ensure Caccaviello had a leg up on the competition in the Democratic primary. To that end, the departing DA presented Povich a proposed timeline that would allow the governor to appoint Caccaviello and give the new DA “ample time to form a campaign committee and gather the necessary signatures to get on the ballot.”

In a brief phone interview, Capeless said that because this was the first time he had resigned from a position, he couldn’t speak to how normal the process was. The former DA said Povich’s edits to Capeless’s resignation letter and the governor’s involvement with Capeless’s resignation timeline was “not unusual” and that he would not discuss the February private meeting.

Caccaviello was unavailable for comment for this article.

A Democrat, Caccaviello will face two progressive challengers in the primary on Sept. 4:  local defense attorneys Andrea Harrington and Judith Knight. Harrington, who was the first to publicly announce her candidacy, entered the race with an existing political machine that was ready to go after an unsuccessful state Senate bid in 2016. She told The Appeal she plans to pursue a different approach to criminal justice.

“This is a really important race for the future of Berkshire County,” Harrington said. “It’s an opportunity to move into the future with a DA using evidence-based programs that address the root causes of why people get involved in the criminal justice system.”

Restorative justice, an approach to crime that seeks to rehabilitate and repair harm rather than punish, is gaining in popularity in the country. Harrington hopes to pursue these ideals in her DA office, she said. She wants to create a citizens’ advisory board to hold her office accountable and to get input from the community for what crimes to prioritize. As DA, Harrington said, she would work to ensure not only that people who have been in and out of the criminal justice system have a chance to rehabilitate themselves without facing unfair incarceration, but also that people just entering the system have the opportunity to keep their mistakes off their permanent record.

While it’s an idea of criminal justice that might have been out of place in decades past — especially after the “tough on crime” legislation of the Reagan era — today Americans are more amenable to restorative justice and alternatives to punitive incarceration.

“The conversation over crime has been fear-based; to be a DA, you must run on being ‘tough on crime,'” said Harrington. “Now, I think because of the opioid crisis, the conversation has opened up and all people are seeing what communities of color have known for a long time: The system doesn’t work.”

It’s a theme that has become more prevalent as liberal candidates join the criminal justice system—most famously in the last year with the election of District Attorney Larry Krasner in Philadelphia.

“I was very inspired by Krasner,” Harrington said. “I look forward to working on specific policies like ending mandatory minimums, limiting fines and fees for the indigent, ending overcharging for nonviolent offenses, and diversion programs that shift resources from incarceration to programs that address underlying causes leading to criminal conduct.”

Along with the already established Berkshire County Drug Court, Harrington wants to pour resources into diversionary programs for established and new offenders. To do that, the DA’s office under Harrington would choose not to prosecute certain crimes if the defendants seek treatment and therapy.

The prospect of change, Harrington believes, scares the DA’s office. Capeless’s office has long had a reputation in the commonwealth for being particularly draconian and harsh. Locally, the former DA is known for his zealous pursuit of drug crimes: In one instance, he tried repeatedly to use school zone charges against one teenager over a decade ago. Capeless has also railed against marijuana legalization and opposed the creation of an alternative drug court.

Harrington sees the power transfer between Capeless and Caccaviello as evidence that the office is afraid of a real debate on the issue of criminal justice and fears being held accountable by the public.

“The fact that they will go to these lengths to avoid a contested election where the community is looking to have these important conversations on criminal justice just says they are afraid of that conversation,” said Harrington. “And I think they have good reason to be afraid.”

Rahsann Hall, director of the American Civil Liberties Union of Massachusetts’ Racial Justice Program, said the handoff is especially “disturbing” because of its impact on the democratic process. The power transfer in the Berkshires adds to the public’s misconceptions about the office, he added. In fact, an ACLU of Massachusetts poll found that 38 percent of state residents don’t even know DAs are elected.

Massachusetts has one of the lowest incarceration rates in the nation, Hall said. But that disguises an ugly truth: The commonwealth has one of the highest racial disparities in incarcerated people and a high rate of recidivism.

“This suggests that the system, as it functions now, does not work,” said Hall, “at least not in a way that promotes healthy and happy communities.”

With all the discussion around mass incarceration and the recent passage of criminal justice reform in Massachusetts, Hall said, choosing the right DA is more important than ever—though he made clear that he was not endorsing any candidate either personally or officially.

“The most significant player in the criminal justice system that has most power is the DA,” Hall said.

DAs have control over prosecution decisions, said Harrington, and that should lead to more fair and just outcomes. But Caccaviello’s office and the office of his predecessor haven’t taken advantage of that discretion. Rather, the policy of the office is that their role is solely to enforce the law, and that’s a position that Harrington disagrees with vehemently.

“The reason we have an elected DA is because the DA is supposed to be the conscience of the community,” she said. “The fact that we have a DA that doesn’t understand that should trouble people.”

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