'No Release' Injunction In NY Could Be A Blueprint Elsewhere

By Emma Cueto | April 5, 2020, 8:02 PM EDT

A court decision blocking the New York field office of U.S. Immigration and Customs Enforcement from using its so-called "no release" policy for certain people detained before a hearing is being hailed by immigrant advocates as a key victory that could set an important standard for other parts of the country.

U.S. District Judge Judge Alvin K. Hellerstein agreed on March 30 to grant a preliminary injunction against the ICE in a lawsuit filed by the New York Civil Liberties Union and the Bronx Defenders.

The lawsuit seeks to change the policy permanently, but the preliminary injunction will require ICE to both change its release policy while the suit proceeds and to reevaluate the need to detain people already locked up while awaiting hearings before immigration judges.

It's a victory that is not only an encouraging sign for the suit itself but that advocates hope might also generate similar suits in other jurisdictions.

"I think it's a really important decision because most of all it reemphasizes that immigration detention should be exceptional under our constitutional system," said Denise L. Gilman, a professor at University of Texas at Austin Law School and director of its Immigration Clinic. "Really it should be used only where there is a strong need to hold somebody who is a flight risk or danger."

Bronx Defenders and the NYCLU filed the suit after obtaining ICE data, via a Freedom of Information Act request, that showed there was a sharp increase in the number of people detained while awaiting an appearance before an immigration judge starting around June 2017.

From 2013 to June 2017, about 47% of people deemed to be "low-risk" by the agency were granted a release, according to the complaint filed in February. However, starting in June 2017, the rate plummeted and between June 2017 to September 2019, however, only 3% of low-risk people facing immigration hearings were released.

Moreover, the agency allegedly tampered with its own algorithm to prevent it from actually recommending that people be released on bond or on their own recognizance.

The suit alleges that this violates the legal requirement for detention decisions to be individual and based on a person's specific circumstances. A blanket policy to prevent release is against the law, advocates claim.

"Once we went through the data ... we saw a very clear picture emerge that they had essentially stopped releasing people," said Christopher Dunn, the NYCLU's legal director.

Though the documents the NYCLU obtained didn't explain what precisely triggered the sudden change, Dunn said it seemed likely that it is connected to Trump's long-standing anti-immigration positions.

Dunn added that the suit is especially important now. The lawsuit was filed before cases of COVID-19 were reported in New York and was not sparked by the pandemic, but the preliminary injunction is particularly relevant in light of it, Dunn said.

People in detention are particularly vulnerable to the virus since they live in close quarters and cannot practice social distancing.

"Even in the best of circumstances someone ends up in jail — and these people are being jailed — they are separated from family, they often lose their job and their housing, and they're sitting in a jail, which is a very bad place for people's health all across the board," Dunn said. "And with COVID-19 ... not only is your life disrupted, but you're actually in danger of dying as a result of being in jail.

"It's a bad situation in the best of times, but it's a dire situation now," he added.

The suit also comes in the wider context of efforts to challenge immigration policies under the Trump administration.

The NYCLU is also pursuing another lawsuit in upstate New York, challenging the practices of immigration courts in Buffalo and Batavia, claiming that judges refused to consider alternatives to detention and that bond was set without considering an individual's ability to pay.

Gilman said that the injunction in New York represents an important victory and one that could be duplicated elsewhere. Both Dunn and Gilman noted that the sharp rise in immigrant detention under the Trump administration has not been confined to New York.

"The length of detention, number of detention centers, numbers of people in detention have all increased under the Trump administration," Gilman said. Numbers went up during the Obama administration, too, she noted, but under Trump that upward trend is "on steroids."

Gilman argued that placing someone in immigration detention is meant to be an exceptional decision, but that the modern immigration system has lost sight of that. Victories like the injunction in New York could provide an example for other groups to follow to attack what she considers an overreliance on detention, she said.

"Every time a court recognizes the importance of the liberty interest that immigrants still have, it creates more opportunities to really push against the detention system as a whole," Gilman said.

An ICE representative declined to comment on pending litigation.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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