By Linh Nguyen and Nickolas Kwok
NEW YORK, NY — A federal court has ruled that Immigrations and Customs Enforcement (ICE) must present detained immigrants before a judge within 10 days of being arrested – the first of its kind requirement in the nation, and intended to curb ICE’s unconstitutional malpractice of holding detained immigrants indefinitely, in violation of their Fifth Amendment due process rights.
District Judge Alison J. Nathan for the Southern District Court of New York issued the ruling and applied it to an entire plaintiff class, 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 immigrants in the state for extended periods of time before seeing a judge.
According to government data for New York from 2018, 72 percent of people are detained for more than two months before their first appearance in immigration court and 33 percent are detained for more than three months before they get to see a judge.
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. In 2014, detained immigrants got to see a judge in under two weeks since their arrest date. That time period extended to over two months in 2018.
The NYCLU stated that many people subjected to this prolonged detention are eligible for release while their cases proceed or should not be detained at all.
“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,” said Professor Peter L. Markowitz of the Cardozo Immigration Justice Clinic. “For decades, ICE has acted as though immigrants are not entitled to that same fundamental constitutional protection.
“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,” Markowitz continued.
Niji Jain, Impact Litigation attorney at The Bronx Defenders, stated, “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.”
These detainees, said the pleading, are often also released from detention as 40 percent were released on bond by a judge. Many of the other detainees are also not deportable as they are US citizens or have permanent resident status.
On average the detainees have lived in the U.S. for 16 years and a third of them are lawful residents of the U.S. Other detainees have children who are citizens of the U.S. or are part of a program that grants them permanent status.
One plaintiff, Uriel Vazquez Perez, argued that “class members are denied ‘prompt access’—defined as within seven or 10 days of arrest if the detainee has not waived the 10-day waiting period.” The argument for a shorter waiting period would help the detainees who are usually released, as opposed to sitting in the detention centers.
Another class member in the case, Shemar Michel, also shared similar sentiments as he stated “They (ICE) 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.”
With the new ruling Michel hopes that “the judge’s ruling ensures nobody will have to go through what I went through.”
In recent years, the wait time for a detainee has gone down from 50 days to two to three weeks because of the filing of this lawsuit. ICE had also assured detainees that they would have access to a judge within 17 days, however, there were about 100 people that were still left waiting past the 17 days.
Due to COVID-19, this wait time has also gone back up as the pandemic has shut down and delayed many hearings. Some hearings have been delayed up to five weeks at the Varick Street immigration court.
In response to the long wait time Bobby Hodgson, a NYCLU staff attorney, said “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.”
The new ruling mandates immigrants will have their hearings within 10 days which will allow for many of the detainees to either be released or released on bond right away. They are also able to have access to proper legal representation through New York City’s immigration public defense program.
Linh Nguyen is a third year Political Science student at UC Davis, also pursuing a minor in Professional Writing. She is an aspiring investigative journalist from San Jose, California, who also shares interests in literature and baking
Nick is a second year at UC Davis double majoring in English and Asian American Studies, he is also from Diamond Bar, CA (LA County)
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