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8/3: A Game of Cat and Mouse With High Stakes: Deportation
Released 21 August 2017  By Liz Robbins – New York Times

A Game of Cat and Mouse With High Stakes: Deportation

Liz Robbins – New York Times
August 3, 2017

https://www.nytimes.com/2017/08/03/nyregion/a-game-of-cat-and-mouse-with-high-stakes-deportation.html

Eric Gonzalez, the acting Brooklyn district attorney, left, and Eric T.
Schneiderman, New York’s attorney, at a news conference where they
discussed immigration officials picking up defendants at courthouses.

Eric Gonzalez, the acting Brooklyn district attorney, left, and Eric T.
Schneiderman, New York’s attorney, at a news conference where they
discussed immigration officials picking up defendants at courthouses. Sam
Hodgson for The New York Times
There’s a new game afoot.

The federal government’s current emphasis on deporting undocumented
immigrants — even those facing low-level charges — has, in effect, turned
courthouses in New York State into arenas where practitioners of criminal
law face off against enforcers of immigration law.

In New York City, judges, defense lawyers and clients have been on high
alert for months, watching to see if immigration enforcement officers,
many in plain clothes, are in a courthouse. If a pair of people look
suspicious, lawyers from the Bronx Defenders, Brooklyn Defender Services
and the Legal Aid Society send an internal email alert. Defendants duck
into bathrooms or race to another floor.

When officers for United States Immigration and Customs Enforcement, known
as ICE, are thought to be in a courthouse, a sympathetic judge might
reschedule a defendant’s appearance, or, in a seemingly perverse move, set
bail that could send a defendant to Rikers Island — keeping the person out
of ICE’s hands because the jail complex does not turn over undocumented
immigrants to the agency.

“I don’t want to be playing the cat and mouse game with federal
authorities,” Eric Gonzalez, the acting Brooklyn district attorney, said
in an interview.

State policy prohibits ICE officers from making arrests inside courtrooms.
They must do their work in a hallway or outside a building. But on
Thursday, Mr. Gonzalez and Eric T. Schneiderman, the state attorney
general, held a news conference to say that even that was too much and
that ICE should treat courthouses as sensitive locations — like hospitals,
houses of worship and schools — where it does not make arrests. They said
immigration authorities were interfering with the criminal justice system,
making witness and defendants afraid to appear in court.

“I am asking ICE to reconsider their policy and treat the courthouse with
respect,” Mr. Gonzalez said in the interview.

ICE has said that it goes to courthouses because it is safer than trying
to detain someone at home or on the street. Sarah Rodriguez, the agency’s
spokeswoman, said that despite the demand by the New York officials, “ICE
plans to continue arresting individuals in courthouse environments as
necessary, based on operational circumstances.”

Ms. Rodriguez said that those picked up by ICE “often have significant
criminal histories.”

ICE officers have made 53 arrests in or around courts in New York State
since January, compared to 11 arrests in 2016 and 14 in 2015, according to
the Immigrant Defense Project, an advocacy group. Thirty-five of the
arrests were made in or around city courthouses, including one on Thursday
in Brooklyn.

The state Office of Court Administration said there were 52 instances of
ICE officials identifying themselves to court officers; they made 30
arrests, 25 of which occurred in the city. The office did not keep
statistics in previous years.

The number of ICE arrests in the five boroughs is higher than other areas
in the state because jails in most counties are allowed to hand over
prisoners to ICE.

While there are no numbers that suggest either defendants or witnesses are
staying away from court, and thus impeding trials, Mr. Gonzalez said his
office’s ability to prosecute cases was nonetheless affected: “Witnesses
are not willing to come forward and cooperate.”

Mr. Gonzalez added that ICE’s arrests had undermined the trust people have
in the justice system.

The Immigrant Defense Project said that, based on reports from lawyers,
some of those recently arrested were charged with offenses like driving
without a license or disorderly conduct and that one young man facing
“minor charges” in juvenile court in Suffolk County had been seized.

Under the Obama administration, undocumented immigrants with those types
of arrests or convictions were not a priority for deportation, but
President Trump has made clear that all people in the country illegally
are targets.

Jessica M. Vaughan, director of policy studies for the Center for
Immigration Studies, which favors more controls on immigration, said in an
email that the issue was not that ICE is interfering with the criminal
justice system, but that New York’s so-called sanctuary policies “are
interfering with ICE’s ability to carry out its legitimate and important
mission. They are the ones forcing ICE to resort to courtroom arrests.”

Judge Toko Serita, shown in 2014, recently set bail for a woman accused of
prostitution; the woman was then able to speak to her lawyer without being
arrested by ICE.

The clash over authority was evident recently at the Queens Human
Trafficking Intervention Court, where women charged with prostitution are
supposed to face restorative, not punitive, justice. Those arrested can
take part in counseling sessions in exchange for dismissal of their
charges and the sealing of the records. Undocumented immigrants may be
eligible for visas as victims.

On June 16, ICE officers went to the court looking for several
individuals, including a 29-year-old woman from China who had been charged
with unlicensed practice of massage and prostitution; she had overstayed
her tourist visa.

Court officers, as per union policy, told Judge Toko Serita that ICE
officers were in the hallway near the courtroom. She told the defense
counsel and the assistant district attorney. Judge Serita set bail at $500
and the woman was held in the jail behind the courtroom — with Rikers
Island her ultimate destination — where she met with her lawyer.

Later that afternoon, Judge Serita released the defendant on her own
recognizance. The ICE agents had left, apparently in search of another
target.

Judge Serita said she had not set bail for the purpose of evading the law.
“It’s to give the individual an opportunity to discuss the matter with his
or her lawyer,” she said.

As it happened, ICE officers arrested another woman as she left the court
and was walking toward the subway, her lawyer, Sheldon Glass, said.
Rachael Yong Yow, a spokeswoman for the New York ICE field office,
confirmed the arrest.

Following that action, Chief Judge Janet DiFiore met with federal
immigration authorities and asked ICE to consider the trafficking court as
a sensitive location.

The policy remains.

Not all judges are sympathetic. Tiffany Gordon, a Legal Aid lawyer in the
Bronx, said that a case involving one of her clients had gone before four
judges, and there had been different reactions to the suggestion that
federal agents might be in the courthouse.

The man, a 38-year-old undocumented immigrant from Ecuador, was charged
with driving while impaired and was afraid to show up to his first
appearance because he thought ICE would be at the courthouse. Agents were,
indeed, there.

Ms. Gordon said that the judge that day, Bahaati Pitt, asked for a reason
to reschedule; Ms. Gordon offered that she was busy with other cases. The
judge accepted that answer. The next appearance, however, was before Judge
Beth Beller. Again, ICE agents were in the courthouse to arrest the man,
but he was waiting them out at a nearby McDonald’s.

Judge Beller issued a bench warrant, compelling him to appear, which he
did not do that day.

“She wasn’t going to assist us in navigating around it,” Ms. Gordon said.

She got her client excused from his next two court dates, with two other
judges.

Judge Beller declined to comment because the case is still active.

Lawyers cannot tell their clients not to show up. “We cannot ethically
advise them not to go to court,” Lee Wang, a lawyer with the Immigrant
Defense Project, said. Instead, she added, lawyers look to be creative.

Asking a judge to set bail for a client to go to Rikers is an extreme
measure, but according to Ms. Wang it happened six times since January
when ICE was present. Two of those times, the judges refused.

“What does it mean that they will be safer in Rikers than being released?”
Ms. Wang asked. “I think it means we’re in an ugly place.”


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