Immigrant Detainees Challenge Wait Times For Court Hearings

By Suzanne Monyak | November 16, 2018, 4:30 PM EST

The New York Civil Liberties Union and other advocacy organizations have challenged the federal government's practice of detaining immigrants for months without bond before their immigration hearings, alleging in a proposed class action in Manhattan federal court on Thursday that the prolonged detention violates New Yorkers' constitutional rights.

The NYCLU, the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo School of Law and The Bronx Defenders accused the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement of illegally holding people suspected of not having lawful immigration status in detention for nearly three months before giving them the opportunity to make their case before an immigration judge, keeping them "frozen in legal limbo" and away from their families.

According to the NYCLU, more than two-thirds of all immigrants detained in New York are held for more than two months before their first immigration hearing, and a third wait at least three months before seeing a judge.

"Those ensnared by this illegal practice suffer under harsh conditions of confinement; are separated from families, friends, and communities; and risk losing their children, their jobs, and their homes," the complaint says.

The lawsuit further alleges that this practice "marks a dramatic deterioration" from the wait times from four years ago, when detainees usually received a hearing before an immigration judge less than two weeks after they were arrested, according to the complaint.

The proposed class is led by Uriel Vazquez Perez, a New York resident and father of two who was arrested by ICE in late October and is currently being held at a New York jail awaiting his first immigration court appearance. Vazquez Perez is seeking to represent a class of immigration detainees arrested for removal by ICE's New York Field Office who have not yet seen an immigration judge. According to Cardozo's Immigration Justice Clinic, between 1,000 and 2,000 New York residents are arrested for suspected immigration offenses each year.

According to the lawsuit, wait times between when detainees are arrested and when they are given their first court appearance have "ballooned" since 2014. The median wait time for a hearing at New York City's Varick Court, where hearings for individuals arrested by NYFO are usually held, doubled between 2015 and 2016, spiking from 18 days to 37 days, and nearly doubled again between this year and last year, when wait times at the immigration court jumped from 42 days to 80 days, the lawsuit says.

The immigration court hearing can be the first time that a detainee has access to a translator and to counsel — particularly meaningful in New York City, which offers a public defenders program for indigent immigrant detainees. As a result, access to counsel and legal services prior to the immigration hearing is "severely limited," the lawsuit says.

The immigration court appearance is also typically the first time a detainee can win release on bond, see the evidence collected against them and learn about other forms of deportation relief for which they could be eligible, such as asylum and other humanitarian visas.

The legal groups also said that requests for expedited proceedings appear to have no effect on wait times, and moreover, that paperwork is in English, preventing many detainees who do not speak English and do not have access to a translator from making the request anyway.

The attorneys claimed that these delays infringe the proposed class members' Fifth Amendment rights to due process and Fourth Amendment rights to be free of seizure without probable cause. The delays and the government's alleged policy of "universally denying bond without individualized determinations" also violate the Administrative Procedure Act, the attorneys said.

According to Peter Markowitz, director of the Immigration Justice Clinic at Cardozo Law, ICE used to "routinely" exercise its discretionary power to grant bond before the immigration court hearing, but by 2016, the agency had stopped exercising that authority altogether, worsening the backlog in the immigration court system.

"Not only are they arresting more people but they're also refusing to let anybody out, exercising no discretion, and that's contributing to the bottleneck," Markowitz told Law360.

Markowitz also said that some of the individuals arrested — nearly 1 in 10 — have their deportation proceedings terminated once they do get that hearing because the judge finds they are not removable. These wrongfully arrested individuals are primarily U.S. citizens and U.S. permanent residents, he said.

Representatives for ICE and DHS both declined to comment.

The proposed class is represented by Peter L. Markowitz, Lindsay Nash, Jacqueline Pearce and Hannah Robbins of  Cardozo's Immigration Justice Clinic, Robert Hodgson, Christopher Dunn and Ben Choi of the NYCLU, and Johanna B. Steinberg, Jenn Rolnick Borchetta, Niji Jain, Suchita Mathur and Zoe Levine of The Bronx Defenders.

Counsel information for the government was not immediately available.

The case is Vazquez Perez v. Decker et al., case number 1:18-cv-10683, in the U.S. District Court for the Southern District of New York.

--Editing by Jack Karp and Pamela Wilkinson.

Correction: An earlier version of this article misspelled the name of one of the legal clinics. The error has been corrected. 

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