Federal Court Rules that Detained Immigrants Must Receive Timely Access to Judges

Ruling Creates 10-Day Requirement, is First in the Nation to Establish Presentment Standards In Immigration Court

Affiliate: ACLU of New York
November 30, 2020 2:15 pm

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NEW YORK — A federal judge ruled today that Immigrations and Customs Enforcement (ICE) is required to present detained immigrants before a judge within 10 days of being arrested. The ruling is the first of its kind in the nation establishing standards that would curb ICE’s practice of holding detained immigrants indefinitely in violation of their due process rights.

The Southern District of New York issued the declaration and applied it to an entire plaintiff class, expanding its reach to the large majority of people who have been or will be arrested and detained by ICE’s New York field office. The decision is in response to a November 2018 class action lawsuit brought by the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo School of Law, The Bronx Defenders, and New York Civil Liberties Union against ICE, the Department of Homeland Security (DHS), and the Executive Office of Immigration Review (EOIR) for jailing immigrant New Yorkers for weeks to months before they’re brought before a judge.

“Long ago, the Supreme Court made clear that when someone is arrested in the United States, they must be swiftly brought before a judge to seek release. For decades, ICE has acted as though immigrants are not entitled to that same fundamental constitutional protection,” said Professor Peter L. Markowitz of the Cardozo Immigration Justice Clinic. “Today, the court made clear that when individuals are arrested by ICE they, like everyone else in this nation, must be promptly presented to a judge and allowed to challenge their detention and the charges against them.”

“A few weeks or months of sitting in inhumane ICE detention facilities can be dangerous and devastating for individuals and their families. The Court’s ruling recognizes that prompt access to an immigration judge is a fundamental right — one that is all the more important when detention facilities are hotbeds for the spread of COVID-19,” said Niji Jain, Impact Litigation attorney at The Bronx Defenders.

One to two thousand people are detained by ICE in New York each year and held in county jails in New York and New Jersey. The time between when people are detained and when they see a judge for the first time went from under two weeks in 2014 to over two months as of 2018 when the suit was filed.

“ICE officers arrived at my house while I was getting my children ready for the day. My youngest son was still a baby. They told me a judge wanted to see me and that I’d be home for dinner that night. I ended up being detained for six weeks,” said class member Shemar Michel. “During that time, I was mentally shattered, I missed my son’s second birthday, and I felt like I had no chance to fight my case. I told the ICE officers I would rather buy my own plane ticket home than stay in ICE detention any longer. Everyone has a right to know what’s going on with their case. I hope the judge’s ruling ensures nobody will have to go through what I went through.”

The filing of this lawsuit alone helped prompt improvements in how long it took for ICE’s New York field office to present people in court. When the case was filed in November 2018, the median wait time for a hearing was 50 days. After the lawsuit brought this problem to light, the government reduced the wait times down to 2-3 weeks. Yet despite ICE’s assurances to the Court that no one would have to wait longer than 17 days to see an immigration judge, the government’s own reports showed that well over 100 people fell through the cracks.

The Court’s ruling today confirms the importance of this right for the entire class. and memorializes standards so that immigrants receive a hearing before a judge within ten days, providing them a prompt opportunity to secure bond and access to legal representation through New York City’s immigration public defense program.

“Locking people up for months before they first see a judge during immigration proceedings is unjust and unlawful, and it does immense harm to immigrant families,” said Bobby Hodgson, staff attorney at the New York Civil Liberties Union. “Those who are detained by ICE have the same right to due process as everyone else in this country, and this decision rightly rejects the idea that people can be imprisoned for months before they get an opportunity to show that they are entitled to release.”

Many of the people that ICE subjected to months of illegal detention were entitled to release but languished in jail without access to judges. Approximately 40 percent were ultimately released on bond by a judge. Others were U.S. citizens or lawful permanent residents who were not deportable, but who were held by ICE until they could see a judge. The court’s order ensures that such individuals will now have prompt access to the judges who can release them.

On average, the petitioners in the class have lived in the United States for 16 years. Nearly a third are lawful permanent residents. Almost half have children living with them in the United States. Most of those children have some form of legal status, primarily U.S. citizenship.

You can find a copy of the decision and other case materials here: https://www.nyclu.org/en/cases/vasquez-perez-v-decker

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