NYCLU Lawsuit: ICE Office in NYC Has Secret No-Release Policy

NEW YORK – The New York Civil Liberties Union and The Bronx Defenders today announced a federal class-action lawsuit challenging a recently-enacted policy of New York City-area federal immigration officials of jailing virtually all of the thousands of people they have arrested over the last three years. Before this policy, nearly half of those arrested on civil immigration offenses and deemed a low risk by the government were quickly released back to their families and communities while their immigration cases moved forward.

The NYCLU uncovered the practice as the result of a FOIA request it submitted to Immigration and Customs Enforcement (ICE). After being forced to sue ICE in federal court for denying the request, the NYCLU obtained data revealing that starting in 2017, ICE’s New York Field Office has all but eliminated bond or release for people awaiting immigration hearings. From 2013 to June 2017, approximately 47 percent of those deemed to be low risk by the government were granted release. From June 2017 to September 2019, that figure plummeted to three percent.

Federal law requires ICE officers to make individualized custody determinations based on whether the person poses a flight risk or threat to public safety. Since 2013, the agency has used a risk assessment tool that considers factors like a person’s family ties, connections to community, time in the country and community, and criminal history. However, the data shows that this tool, which ICE offices use nationwide, was manipulated, most recently in mid-2017, to remove its ability to recommend anyone be released. The tool can now only make one substantive recommendation: detention without bond.

“ICE has secretly decided to detain thousands of New Yorkers unlawfully, inflicting enormous and entirely unnecessary harms,” said Amy Belsher, staff attorney at the New York Civil Liberties Union and lead counsel on the case. “ICE is legally required to make individual assessments and cannot outsource its statutory and constitutional duties to a rigged algorithm.”

The lawsuit was filed Friday on behalf of a class of plaintiffs who have been held in New York City area jails without receiving a hearing to determine whether they are eligible for release while their removal proceedings are pending.

ICE’s New York Field Office began adopting these blanket no-release recommendations, despite agents’ discretionary authority, even in cases where ICE had found that the person did not present a flight risk or public safety threat. As a result, thousands of people have been detained without receiving an individualized initial custody determination to evaluate whether they should be released.

The sharp drop in release rates is even more dramatic given the spike in arrests made by ICE and the expansion of arrests to include those without criminal histories under the Trump administration’s “zero-tolerance” policy. During the administration’s first year in office alone, ICE arrests of people in New York with no criminal conviction history who resided in the United States for ten or more years increased by 334 percent.

The “no release” policy is particularly egregious when it comes to people with physical disabilities and mental health conditions. For these people, detention cuts them off from the family and community support they need, as well as treatment they may have been receiving on the outside. The results of this can be tragic: in Hudson County Jail, where many members of the class are detained, six people died in the period of less than a year, including four suicides.

“ICE’s policy of detaining nearly everyone it arrests is yet another effort to intimidate immigrant communities and coerce our clients into surrendering their rights,” said Thomas Scott-Railton, an Immigrant Justice Corps Fellow at the Impact Litigation Practice of The Bronx Defenders. “This practice of widespread detention is both cruel and needless, and has particularly devastating consequences for people with physical or psychological disabilities who must fight their immigration cases while being held in inhumane conditions and without access to the health services they need.”

The NYCLU and The Bronx Defenders lawsuit charges that the New York office’s “no release policy” violates the due process rights of those being detained and federal law protecting individuals with disabilities, and that the New York City office must determine release based on individualized assessments.

“Separating families and illegally locking up immigrants has been a hallmark of the Trump Administration, and that’s exactly what we’re trying to stop with this lawsuit,” said Christopher Dunn, legal director of the New York Civil Liberties Union. “Advocates have long-suspected ICE had a blanket no-release policy, and the data we uncovered finally confirms it. Prolonged detention separates families, risks people’s jobs and housing, and upends lives.”

For the complaint, please visit: https://www.nyclu.org/en/cases/jose-l-velesaca-v-thomas-r-decker