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More Than A Month After Anti-ICE Protests, Detained NYC Immigrants Still Denied In-Person Hearings

Their attorneys say the new video-teleconferencing policy is exacerbating backlogs and prolonging detention.

#OccupyICENYC signs hanging at 201 Varick St. in June, before protesters heeded immigrant advocates’ request to relocate.Credit: Emma Whitford

On July 26, Andres* appeared in immigration court at 201 Varick St. in lower Manhattan to fight his deportation order. Not physically, but over live video feed. A camera posted in the courtroom enabled him to see the judge but not the benches where his wife sat, according to his lawyer Ellen Pachnanda. Sympathetic, Judge Mimi Tsankov invited Andres’s wife to sit in the front of the courtroom, but the government attorney objected. Pachnanda says the hearing was stalled while an ICE officer moved the camera around.

“Once [Andres] was able to clearly see his wife on the feed, his demeanor completely changed and he actually looked up while speaking and smiled occasionally,” Pachnanda, of Brooklyn Defender Services, recalled. But the adjustments took so long that the judge rescheduled his hearing for mid-November before a conclusion could be reached.  

Andres has been in immigration detention at Hudson County Correctional Facility in New Jersey since September 2017, but this month was his first video-teleconference hearing since New York City’s ICE division stopped transporting detainees to court over a month ago. The unilateral decision has worsened case backlogs, lawyers say, and handicapped a city-funded program that guarantees representation for immigrants who are poor and detained.

ICE stopped transporting detainees on June 20, citing safety concerns after anti-ICE demonstrators camped out in front of the courthouse garage doors for several days. The agency now says hearings will be conducted remotely over video teleconference “for the foreseeable future,” citing unspecified safety threats.

“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. She added that the decision to suspend transports to 201 Varick St. is “not specific to protesters at the Varick Street location” and “is not a punishment or retaliation in any way.”

But lawyers say the situation is chaotic and disheartening. For years, attorneys with the New York Immigrant Family Unity Project visited 201 Varick St. three mornings a week to meet privately with potential clients. Detainees could sign forms allowing attorneys to “really get started on the case,” according to Katherine Buckel, a supervising attorney for the Legal Aid Society. She and her colleagues would be able to explore case files and criminal and medical records with an eye toward asylum and visa options. They would gather enough information on a new client in a few hours to set a date that same day for a bond hearing, or to file applications for relief.

Under the new regime, the unity project attorneys have an hour before the afternoon docket to rush through five-minute video introductions with potential clients. First, the court clerk must call into one of three jails in Orange, Hudson, or Bergen County, New Jersey, where ICE has assembled the day’s defendants. There’s no privacy on the jail side, where detainees take turns sitting in a plastic chair in front of a video camera. At least one ICE officer stands nearby, and often other detainees. “It’s terrible,” Buckel says. “There’s no trust.”

Those who agree to participate in the program get new court dates so that a unity project lawyer will have time to visit them in New Jersey to start building a case. This is particularly troubling because courts are already backlogged. One man from Guatemala who appeared over video teleconference on July 12 had been detained since March 24. His case won’t get underway until mid-August, rounding out six months in ICE custody.

“We were really hopeful it would be short-lived,” Andrea Sáenz, a supervising attorney with Brooklyn Defender Services, said of the video policy. “Now we’re looking at all of our options. We have a lot of calls and meetings planned in the next couple weeks to decide what we’re going to do.”

In the meantime, volunteers like Carolyn Eubanks do their best to help. On a recent Wednesday, she stood in a windowless waiting room on the 11th floor of the Varick Street court building wearing a large button emblazoned with a black “S.” The button identifies her as a volunteer with New Sanctuary Coalition, an interfaith group that trains volunteers to accompany immigrants to their court appearances. As Eubanks puts it, the volunteers offer “a morale boost,” especially when detainees don’t have family in the area. New Sanctuary has continued to show up at Varick Street daily despite the policy change. It’s important, she said, that “the judge and ICE see that these people are not alone.”

Private immigration lawyers pick up their cases outside the courthouse, so they don’t rely on ICE to meet with potential clients. The video teleconference mandate has still complicated things for them, however. In lawyer Kyce Siddiqi’s experience, families from Long Island had come to appreciate the Manhattan court, which is closer to home than the detention centers, and feels safer for them to visit. At 201 Varick St., “green cards generally aren’t checked and it’s not a prison facility and people feel more bold,” he says.

Lawyers also worry that judges who only see detainees on a screen won’t pick up on their emotional distress, which they believe has influenced favorable decisions in the past.

Pablo*, a noncitizen from Honduras and Brooklyn Defender Services client, was transferred to ICE custody in January after pleading guilty to two DUIs. A judge denied him bond in May, and his lawyer, Meghan McCarthy, has spent months building an asylum case. The process has been particularly complicated because, according to McCarthy, the 35-year-old immigrant has an IQ of 60 due to a traumatic brain injury sustained in 2011. Now, she said, “It’s difficult to have him appear via video because we can’t take breaks and discuss things he doesn’t understand.”

At Pablo’s video teleconference hearing on July 19, the judge had to pause frequently so that a translator seated in the courtroom could address him. This took so long that the case was adjourned until Oct. 19 before Pablo could testify. Under normal circumstances, the case could have finished in one day, McCarthy believes. Pablo “could have won his case and been released soon after. Or, even if he did not win, he would have the certainty of knowing,” she said. Now, “he waits much longer for the next step.”

On July 25, U.S. District Judge Andrew L. Carter Jr. cited the video teleconference policy in a favorable ruling for a 39-year-old father of seven who has been in ICE detention since October 2017. He ruled that the detainee, who is Mexican, must receive a bond hearing within seven days, and that his detention has been “unreasonably prolonged.”

At an upcoming hearing, Judge Carter noted, the defendant “will likely appear by video teleconference.” He added that “counsel has indicated that it is unlikely the court will be able to conclude the hearing and close the record on this date, because the new … procedure has frequent technical issues.”

Gregory Copeland, a supervising attorney with the Legal Aid Society’s Immigration Law Unit, said that this is the first time a judge has acknowledged the issue on the record. “It is supportive of what we see as a real problem,” he said.

Yow, the ICE spokesperson, declined to comment on the attorneys’ grievances, which the NYC Mayor’s Office of Immigrant Affairs described as distressing in a comment to The Appeal. “We are deeply concerned about how this policy impedes immigrants’ access to counsel,” said Matt Dhaiti, a spokesperson for Mayor Bill de Blasio.

New York City Council Member Carlos Menchaca leads the council’s Committee on Immigration, and has long championed the family unity project. He says the video teleconference mandate is ICE’s latest effort to limit due process for immigrants.

“We’ve already seen ICE in general act as a rogue agency and implement dehumanizing procedures to continue to instill fear in our communities,” he said. “This is just another example of them using every opportunity they can to fuel the deportation machine. They are taking advantage of this opportunity and we need to call it out.”

*Names have been changed.