If you are a defense attorney who has undocumented immigrants as clients, you are aware that Immigration and Customs Enforcement (ICE) has become more active lately in their detention of such people near New York State courthouses. It’s not that ICE is doing anything new – they have always had the authority to detain people and put them in custody to await deportation proceedings. These days, however, ICE has more agents, thanks to the increase in funding from the Trump administration, and it can now go after little fish who simply weren’t worth pursuing before.
If you have a lot of immigrant clients, as I do, you want to do everything possible to evaluate the chances of ICE intervention in your case, and take reasonable steps to advise your client of the risks involved in going to court. If your client wishes to proceed with his criminal case, as most do, then you should examine the factors that will affect the client’s level of risk.
Determine the Risk Level
- LOOK FOR PRIOR CONTACT WITH ICE OR CBP. Has the person ever had contact with immigration before? Your client may have been stopped while crossing the border once, and then was issued an appearance ticket to an immigration court. Or your client may have a previous order of deportation. If your client has any history with ICE or Customs and Border Protection (CBP), especially if there is some disobedience of legal process or an order to appear, then that person is at greater risk of an ICE detention.
- WHAT ARE THE CHARGES? In the Newburgh, New York, area, the local ICE office tells me that they are focusing on “criminal aliens.” This means that your client must be accused of a crime in order to be of interest to ICE. Traffic tickets and city code infractions are not crimes, and do not attract ICE attention. However, DWI arrests, drug charges, domestic violence charges, assault, etc., any Penal Law charge, raises the risk of a detention.
- YOUR CLIENT’S RAP SHEET. Obviously, if your undocumented alien client has a long history of penal law offenses, he or she is going to be of more interest to ICE.
- CITY COURTS ARE MORE DANGEROUS THAN TOWN OR VILLAGE JUSTICE COURTS. City courts have a much bigger presence of ICE agents, for two reasons: first, there are more people coming and going, so there are more potential fish in one place. Second, the court calendars for New York city courts (such as City of Newburgh, City of Beacon, City of Middletown, City of Rochester, etc.) are all published on Webcrims, and can easily be checked by ICE as they monitor the court system for possible targets of detention. ICE is much less able to monitor small courts that don’t publish their calendars and only meet once a week, or once a month. If your client has a case in a city court, the chances of detention are higher.
Protect Your Client from ICE Agents
Preamble: I suppose I could be criticized for helping my clients avoid being arrested by ICE, but I have several reasons for doing so: (1) obedience to God, (2) loyalty to my client, (3) loyalty to the State of New York and its Constitution and its duly authorized legal proceedings.
To explain: as a committed Christian, I believe that we owe a duty of care to every person, regardless of their immigration status. Surprising people at the courthouse door, detaining them, hustling them away in an unmarked car to detention, never to be seen again, doesn’t seem very nice. The Bible tells us to love our neighbors as ourselves, and I’m sure that the ICE agents doing the arresting would probably agree that they wouldn’t want themselves or their relatives or friends to be treated like that. Therefore, I won’t be a party to it, if I can help it.
Second, I owe a duty of loyalty to my clients, not to ICE. As an attorney, I have sworn to uphold the Constitution (both federal and state), and to zealously represent my clients while upholding the highest ethical and moral standards. I feel very little obligation to helping ICE agents, since they are not my clients, and their actions hinder, rather than help, the State of New York, which has given me permission to be an attorney here.
Third, duty of loyalty to New York State. If I must choose between helping a federal administrative agency or the State of New York, the State must win. I am licensed by the State of New York, and I have sworn to uphold the state and federal constitutions, and to zealously act as an advocate for my clients. New York State courts have never invited federal administrative agents to interrupt legal proceedings and to seize defendants who are on their way to court. Want to find the immigrants at their homes or on the street? Fine, it’s a free country, go ahead. But to lurk around the courthouse doors, in the parking lot, or in some other hidden spot to stop people from going to court, or as they leave court, is to interrupt a state legal procedure. If anybody else did something like this, they would probably be charged with witness tampering, or obstruction of governmental administration. Why give ICE agents a free pass? I don’t think we should.
Anyway, here are some logical steps to take before going to court.
- Assess your client’s risk level. If it’s high risk, then you should go to the courthouse first and see if ICE agents are standing around. They are not hard to spot – a couple of plainclothes cops standing near the courthouse door, or in a car, watching everybody who enters and exits.
- Check for ICE agents. If ICE is waiting, I suppose you could ask them who they are waiting for, but why should they help you? Don’t bring your client inside if there appears to be a federal welcoming committee present. Instead, appear by yourself, explain the situation to the judge, and ask if you can resolve the case by affidavit. If that’s not possible, try to go back in the afternoon, or ask for an adjournment.
- Try to resolve the case by affidavit. Many judges will allow you to plead out the case by affidavit, even if it’s a criminal case. Others may not. But you might as well ask.
- If your client gets seized, you may be able to get the case dismissed on speedy trial grounds. If your client gets seized by ICE despite your best efforts, there is some consolation – the case will probably be dismissed via speedy trial motion (made by you) once the statutory trial period per CPL 30.30 is over. (This applies even if the client has already pleaded guilty, because you can ask for the case to be dismissed for failure to deliver a speedy sentence.) If you want a sample speedy trial motion, feel free to contact me, and I will be happy to provide you with a model.