Testimony of Immigrant Justice Corps on The Impact of New Immigration Enforcement Tactics on Access to Justice and Services March 15, 2017

Testimony of Immigrant Justice Corps on The Impact of New Immigration Enforcement Tactics on Access to Justice and Services March 15, 2017

Immigrant Justice Corps (IJC) thanks the New York City Council for the opportunity to submit testimony regarding the impact of the new Administration’s focus on immigration enforcement.  We are very grateful to the City Council for the extraordinary leadership it has shown in providing funding and support for high quality legal counsel for New York immigrants.  We believe in this time of heightened, perhaps unprecedented enforcement, that it will be more crucial than ever for all non-citizens in New York to have access to immigration counsel.

 

Immigrant Justice Corps (IJC) is the country’s first and only fellowship program dedicated to meeting the need for high-quality legal assistance for immigrants seeking a path to lawful status, citizenship and fighting deportation. IJC’s goal is to use legal assistance to lift immigrant families out of poverty – helping them access secure jobs, quality health care and life-changing educational opportunities. Inspired by the Katzmann Study Group on Immigrant Representation,[1] IJC brings together the country’s most talented law school and college graduates, connects them to New York City’s best legal and community institutions, leverages the latest technologies, and fosters a culture of creative thinking that produces new strategies to reduce the justice gap for immigrant families, ensuring that immigration status is no longer a barrier to social and economic opportunity.  Now in our third year, IJC has trained and placed over 100 Justice Fellows (law graduates) and Community Fellows (college graduates) in support of our mission to increase both the quantity and quality of immigration legal services.  All of our fellows are lawyers, law school graduates, Board of Immigration Appeals accredited representatives, or in the process of becoming accredited representatives.

 

A Climate of Fear

IJC has fellows placed with over 30 non-profit organizations throughout New York City and its surrounding counties.  These organizations include:  Arab American Association of New York;

Atlas: DIY; Bronx Defenders; Brooklyn Defender Services; Brooklyn Public Library; CALA — Central American Legal Assistance;  Catholic Charities Community Services; Catholic Migration Services; Chinese American Planning Council, City Bar Justice Center; The Door; Human Rights First; Immigration Equality; KIND; Legal Aid Society; Legal Services of NY; Lutheran Social Services; Make the Road New York; MinKwon Community Action Center; Neighborhood Defender Service; New York Legal Assistance Group (NYLAG); Part of the Solution, Project Hospitality, Public Health Solutions,  Safe Horizon; Safe Passage Project; Sanctuary for Families; Sauti Yetu; and Urban Justice Center.

 

IJC is honored to be part of the team of New Yorkers who are fighting back against anti-immigrant rhetoric and increased enforcement.  The common theme our fellows are hearing in all corners of New York City (and beyond) is anxiety and fear.  Immigrants are afraid to attend court dates, to go to hospitals, to access government services for their U.S. citizen children, even to open their doors if someone yells “police!”  Their U.S. citizen and lawful permanent resident children are afraid to go to school for fear that their parents may be arrested and detained while they are in school. As legal service providers, it is difficult to assuage the fears of our clients.  The Department of Homeland Security has stated in a public “Q and A” on implementing the Executive Orders:

 

Q5: What are ICE’s priorities under this executive order?

A5: Under this Executive Order, ICE will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States.[2]

 

Non-citizens who are living in the United States without authorization can no longer rely on a rational system which prioritizes removing only those who pose a danger to our country.  Instead, anyone who entered the country, fleeing harm or wishing to reunite with a family member, is now a priority for removal from the United States.  This means that legal service providers, with resources stretched to the limit, have to reach all non-citizens to evaluate their individual cases, explain their rights, and determine their eligibility for various forms of relief or waivers.  With no rational prioritization from the government, all unauthorized immigrants are at risk of deportation and need legal counsel which our immigration system does not provide even to children and the mentally ill.

 

Increased Expedited Removal

One of the areas of greatest concern to IJC is the Administration’s stated aim of expanding expedited removal.  Expedited removal means that DHS can return a non-citizen to his country without the individual ever seeing an immigration judge or affording him any real due process.  Under expedited removal, if a non-citizen claims a fear of return to  his home country,  he is supposed to receive a specialized “Credible Fear Interview” with an asylum officer which, if successful, leads to the initiation of removal proceedings before an immigration judge.  But for years, even as applied at the border, we have seen myriad problems with this process, including Customs and Border Patrol officials filling out forms stating that children as young as three have told them that they are coming to the U.S. to seek work.[3]

 

Since revisions to the immigration law in 1996, the Immigration and Nationality Act has authorized the removal of individuals who enter the United States without proper documents and inspection without any hearing before an immigration judge, within two years of their arrival.[4]  Fortunately, this harsh provision of the statute, has never been enforced to its fullest effect.  Instead, the application of this law has been limited to those who are apprehended within 100 miles of the border and within 14 days of arrival into the country.  However, Department of Homeland Security (DHS) Secretary Kelly stated in his implementation memo that DHS will  issue new regulations to expand expedited removal to all non-citizens who entered without proper documents – generally crossing the border – “who have not affirmatively shown, to the satisfaction of an immigration officer, that they have been continuously physically present in the United States for the two-year period immediately prior to the determination of their inadmissibility[5].”

 

This means that in an environment where we have already seen DHS engage in home and worksite raids, troll courthouses detaining criminal defendants and witnesses, and where we anticipate a significant increase in enforcement, it will be up to individuals arrested by Immigration and Customs Enforcement to prove that they have been in the United States for two years, simply to get to see an immigration judge.  We are entering a new regime where ICE agents who arrest those who “look like immigrants” will play judge and jury in determining whether non- citizens arrested and detained ever get to see an immigration judge.[6]  If the agents make a mistake in their determination, there is no appeal, and the individual who was erroneously denied a day in court will be returned to her country.

 

The Need for More Lawyers

IJC Fellows in the field – over 70 Fellows hosted by more than 30 organizations in every borough of New York City and beyond – report that they are overwhelmed. In addition to their everyday work of representing low income clients in immigration court and filing applications to improve their immigration status, they are also working tirelessly to meet the urgent needs of other community members who are terrified.  IJC Fellows and staff are providing Know Your Rights trainings, explaining the constitutional rights that persons within the borders of the United States are granted, including the right to remain silent when confronted by an ICE officer.  But this is not enough.

 

Legal services providers and community based organizations need to reach non-citizens and put them in touch with qualified legal representatives before they are apprehended.  Many immigrants have been asking for assistance in preparing documents, such as powers of attorney and guardianship petitions, so that their children will be cared for and their assets distributed in the event they are swept up and summarily removed from the United States.

 

In addition to these pre-emptive services, non-citizens need to know who they can call as soon as they come into contact with ICE.  They need to have a relationship with a qualified attorney or BIA representative so that if they exercise the right to remain silent, they can tell ICE to speak with their counsel or representative.

 

The legal services community is bracing for raids, for abuses of anyone who “looks like an immigrant,” for wrongful detention and removal, and for other violations of constitutional and human rights.    As Council Speaker Mark-Viverito said in last month’s State of the City Address, “We will not abandon our immigrant communities. They are members of our New York family. And we will continue to fight for their rights, safety and security.[7]”  The fight for those rights has just gotten harder and the need for lawyers and representatives has never been greater.

 

We commend the City Council for the leadership it has already shown in providing funding for desperately needed immigration legal services.  We urge the City Council to expand this funding.  The Trump administration’s agenda has already been dubbed a “War on Immigrants[8],” and in this war, the legal service providers are the frontline soldiers.  We will be filing naturalization applications to give immigrants permanent protection in our country, defending immigrants in immigration court and, increasingly, engaging in federal litigation to combat constitutional rights’ violations IJC stands ready to fight for the rights of immigrants who are such a vital part of the fabric of New York City and we ask the City Council to provide funding to make this possible.

 

[1] “Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings,” available at http://www.cardozolawreview.com/content/denovo/NYIRS_Report.pdf; and “Accessing Justice II: A Model for Providing Counsel to New York Immigrants,” available at http://www.cardozolawreview.com/content/denovo/NYIRS_ReportII.pdf.

[2] Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States, February 21, 2017, available at https://www.dhs.gov/news/2017/02/21/qa-dhs-implementation-executive-order-enhancing-public-safety-interior-united-states

[3] Elise Foley, “Infants and Toddlers Are Coming to The U.S. To Work, According to Border Patrol,” June 16, 2015, http://www.huffingtonpost.com/2015/06/16/border-patrol-babies_n_7594618.html

[4] INA §235(b)(1)(A)(i).

[5] John Kelly Memorandum, “Implement the President’s Border Security and Immigration Enforcement Improvements Policies,” February 20, 2017, https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Implementing-the-Presidents-Border-Security-Immigration-Enforcement-Improvement-Policies.pdf

[6] Last week a U.S. citizen was held in ICE detention for several days after being arrested by an ICE official who allegedly stated, “You don’t look like you were born in Montrose.”  Blair Miller, “ICE agents illegally detained Colorado US citizen for days because he was Hispanic, lawsuit claims,” http://www.thedenverchannel.com/news/local-news/ice-agents-illegally-detained-colorado-us-citizen-for-days-because-he-was-hispanic-lawsuit-claims,” March 7, 2017 http://www.thedenverchannel.com/news/local-news/ice-agents-illegally-detained-colorado-us-citizen-for-days-because-he-was-hispanic-lawsuit-claims

[7]“ Speaker Melissa Mark-Viverito Delivers 2017 State of the City Address” http://council.nyc.gov/press/2017/02/16/1370/

[8] Bill Blum, “Trump’s War On Immigrants Has Already Reached The Supreme Court,”http://www.huffingtonpost.com/entry/trumps-war-on-immigrants-has-already-reached-the-supreme_us_58b48094e4b0e5fdf619758a; Amanda Baran, “Donald Trump’s war on immigrant women,” February 21, 2017, http://thehill.com/blogs/pundits-blog/immigration/320500-donald-trumps-war-on-immigrant-women; Joe Romm, “Trump’s war on immigration is a war on science and our prosperity,” January 30, 2017, https://thinkprogress.org/trumps-war-on-immigration-is-a-war-on-science-and-our-prosperity-e42678a28360#.17r9ba889