Farm Friendly Detention

Immigration detention is cruel and costly to both detained individuals and their families. While the elimination of detention altogether (except for those who commit the gravest offenses) would be ideal, there is no sign that will ever come to pass. In the meantime, detainees should at least be given the opportunity to work and provide for their families while in detention – and possibly help save the agriculture industry from what some perceive as imminent demise in the wake of recent immigration policies being implemented in various states across the country.
Over the past decade, approximately three million immigrants have been held in detention centers, and the number of detainees continues to grow. Around ninety percent of the detainees are male. These men are often the breadwinners of their family and their detention, which can drag on for months or sometimes even years, often results in extreme hardship to the family members they support in the United States. Additionally, immigrant detainees do not have a constitutional right to counsel in deportation proceedings, so they often have to pay for their own legal representation. Alternatives to detention, such as supervised release programs have been slow in their implementation by immigration and detention authorities, so the families of those detained continue to suffer, both emotionally and financially.
Further compounding the problem of immigrant detention is the fact that many detention centers are overcrowded. This not only leads to cramped living conditions for those who remain in detention, but also results in the transfer of detainees from the field offices where they are arrested to detention centers hundreds of miles away where there are vacant beds available. This occurs most often for detainees in Mid-Atlantic and Northeast states because of the shortage of vacant beds in the centers located these areas. Detainees held in these states often find themselves transferred to detention centers located in rural areas of Mississippi, Texas, or Louisiana (Texas and Louisiana are two of the states that are most likely to receive transfers). The repercussions of such a transfer are serious. In addition to loss of freedom and financial hardships, immigration detainees are also removed from their support network and their local community. They also become subject to the laws of the jurisdiction in which their detention center is located. The federal Court of Appeals for the Fifth Circuit presides over cases from Louisiana, Mississippi, and Texas – home to several large detention centers – and is notorious for deciding cases in a manner that is hostile to undocumented immigrants.
This holds true for the states under the jurisdiction of the Eleventh Circuit as well – which recently upheld most of the sections of Alabama’s exceedingly stringent immigration legislation. Consequently, droves of immigrant families have begun fleeing states such as Georgia and Alabama in fear of getting caught up in the sweeping enforcement efforts of local officials authorized by legislation that criminalizes not carrying proper identity documents, forces public schools to determine students’ legal status, and expands the power of local police officers to investigate the immigration status of drivers during routine traffic stops. In the wake of these recent changes, multitudes of undocumented immigrants have abandoned their jobs, many of which were in the farming industry. While the legislation has been promoted under the guise that it will bring jobs to the “Americans” in the state, no such trend has taken shape, in large part due to an aversion to the low wages that most farm workers are paid and the physical strains of the work. Farmers are worried. A recent NPR report noted that millions of pounds of watermelons, peaches, blackberries, and cucumbers were left to rot in the fields this summer.
What is needed is a work-release type of program for immigration detainees who are being held in centers in states with strong farming industries. Detainees who opt in to the program can work and receive a steady wage. Farmers will not have to worry about trying to fill the vacancies left by undocumented workers with uninterested Americans, or leave their crops to rot in the fields. The detainees can use the money to help support their families, secure legal counsel, or purchase commodities that make life in detention slightly easier to endure. The outlook for reform of the immigration detention system is very grim, but has the to potential to grow from a single seed of change.

Alicia A. Caldwell, Agriculture Industry Fears Disaster If Illegal Immigration Enforcement Program E-Verify Is Implemented, Huffington Post (June 4, 2011),

Campbell Robertson, Alabama Wins in Ruling on Its Immigration Law, New York Times (Sept. 28, 2011),

Dora Schiro, Immigration Detention Overview and Recommendations, Department of Homeland Security Immigration and Customs Enforcement (Oct. 6, 2009),

Greg Asbed and Sean Sellers, The High Cost Of Anti-Immigrant Laws, The Nation (Oct. 31, 2011),

Gretchen Gavett, Map: the U.S. Immigration Detention Boom, PBS Frontline (Oct. 18, 2011),

US: Remote Detainee Lockups Hinder Justice, Human Rights Watch (Dec. 2, 2009),


Unbundled Representation in New York City Immigration Courts

In New York City, 60% of detained respondents and 27% of non-detained respondents do not have an attorney in their removal proceedings. (For more information on New Yorkers’ lack of immigration counsel, see the New York Immigrant Representation Study Preliminary Findings, May 3, 2011.) Facing these stark numbers, New York City immigrant advocates are tackling the dearth of representation in a unique way—through unbundled representation.

Generally, unbundled representation entails a lawyer placing reasonable limits on the representation she provides, with the informed consent of her client. See ABA Model Rule 1.2(c); see also New York Rules of Professional Conduct 1.2(c). In the immigration context, this limited representation can have substantial benefits for respondents, attorneys, and courts. Respondents have the opportunity to benefit from the legal expertise of lawyers, while paying only for those services they truly need. At the same time, attorneys may expand their client network and hone their skills in a particular practice area. Moreover, the courts benefit from the added efficiency of engaging with respondents who are better prepared for the complicated court proceedings.

Nevertheless, the Immigration Court Practice Manual states that “[o]nce an attorney has made an appearance, that attorney has an obligation to continue representation until such time as the alien terminates representation or a motion to withdraw or substitute as counsel has been granted by the Immigration Court.” Immigration Court Practice Manual 2.3(d) (emphasis added). Fortunately for respondents in New York City, the tension between the Immigration Court Practice Manual and unbundled representation has been ameliorated through an agreement between the Courts and practitioners to permit attorneys to represent respondents in a limited capacity—i.e., for bond hearings or master calendar hearings only.

The Legal Aid Society—Immigration Unit (LAS) is one organization that has already implemented this method of representation. For example, LAS provides quality and zealous representation to incarcerated individuals on a limited basis during bond hearings—one of the most critical moments in a respondent’s case. The importance of representation during bond hearings is significant, as freedom from detention dramatically increases the likelihood of obtaining a successful outcome.

ICOP commends organizations like LAS that utilize the unique agreement practitioners have with the New York City Immigration Courts to provide quality, unbundled representation to noncitizens in removal proceedings. The potential for unbundled services to serve a greater number of noncitizens at key moments in their proceedings, however, is not a panacea for the underlying problem of inaccessibility of counsel for the majority of people who are placed in immigration proceedings. ICOP remains strongly in favor of Congress recognizing the right to appointed counsel for indigent respondents in removal proceedings. Until then, LAS and other practitioners should be thanked for their invaluable work.

Politicians and Activists Rally to Stop “Secure Communities” on Program’s 1-Year Anniversary in NY State

“[W]e need Gov. Cuomo to take immediate action to demonstrate that New York is a place where immigrants don’t lose their rights just because they have been accused or convicted of a crime.” – City Council Member Daniel Dromm

Frantz Gedinez, of Families for Freedom and the New Sanctuary Coalition NYC speaks out against unjust deportations and racial profiling.

Various NYC social justice groups rally together against S-comm and in support of our immigrant communities.

(photos by YiyiZhang)


May 18, 2011


Manisha, 917.748.0938 (English & Spanish)

Michelle Fei:, (646) 290-5551 (English and Spanish)

New York, NY (May 18, 2011) – A wide coalition of immigrants and advocates, joined by politicians and other supporters, rallied in front of Governor Cuomo’s Manhattan office today to demand an immediate end to a mass deportation program that New York signed into effect exactly one year ago.

“We have no time to lose,” declared City Council Member Daniel Dromm. “On this first anniversary of S-Comm, we need Gov. Cuomo to take immediate action to demonstrate that New York is a place where immigrants don’t lose their rights just because they have been accused or convicted of a crime.”

“The Governor has a unique opportunity to correct past wrongs,” said Michelle Fei, one of the event organizers. “New York cannot stand for a program that funnels immigrants into an unjust deportation system while jeopardizing our safety and violating our rights.”

The call for Cuomo to quickly end the program comes as a rising tide of opposition to the ICE deportation program is sweeping across the state and country. Recently, U.S. Representative Zoe Lofgren, joined by Sen. Robert Menendez, called for an investigation of ICE and S-Comm, and the Congressional Hispanic Caucus urged Pres. Obama to stop S-Comm. On May 5, Illinois Governor Quinn rescinded that state’s S-Comm agreement. A group of 38 New York legislators sent a letter urging Gov. Cuomo to terminate NY’s S-Comm on May 9. And just this week, both the New York State Assembly Puerto Rican/Hispanic Task Force and U.S. Congress Members José E. Serrano and Nydia Velázquez sent letters to Cuomo in support of the program’s termination.

“Gov. Cuomo must step up if he wants New York to continue to be a leader for immigrant rights,” said Manisha Vaze, another event organizer. “Our communities are getting ripped apart, and Cuomo has the power to stop this devastation by simply ending the agreement.”

Under S-Comm, local police are forced to automatically forward the fingerprints of every arrested person to federal immigration databases. The program aims to transfer people suspected of being deportable directly into the detention and deportation system. Locked up in detention centers, advocates say, immigrants have severely limited access to lawyers, medical care, family, witnesses, and evidence to defend against deportation.

S-Comm now covers nearly 1300 jurisdictions across 42 states. It is currently active in 24 New York counties. In January and February alone, the program identified nearly 3,500 immigrants for potential deportation.

“We hope Gov. Cuomo will respond to our communities’ fears and frustration,” said Mizue Aizeki from the Northern Manhattan Coalition for Immigrant Rights and another event coordinator. “Ending S-Comm now is the only right solution.”

The New York State Working Group Against Deportation is a broad coalition of domestic violence, immigrant rights, family services, labor, faith-based, civil rights, and community-based organizations that aims to stop Secure Communities and other deportation programs. Through the Working Group, over 80 organizations, 130 faith leaders, and 40 elected officials have joined together to urge Governor Cuomo to terminate New York’s S-Comm agreement with ICE. Call Families for Freedom at (646) 290-5551 for more information about the rally; contact Michelle Fei (, (484) 464-3664) or Mizue Aizeki ( for more information about S-Comm and the campaign to stop S-Comm.

DHS Extends TPS Status for Haitian Beneficiaries, but with qualifications

Yesterday morning, the Department of Homeland Security announced the extension of Temporary Protected Status for Haitians, starting July 23, 2011 and effective for another 18 months. However, as you will see in the press release, the government is continuing to separate immigrants into “deserving” and “undeserving” categories:

“A person who has been convicted of a felony or two or more misdemeanors in the United States, or is subject to one of the criminal, or security-related bars to admissibility under immigration law, is not eligible for TPS. In addition, an applicant cannot obtain TPS if he or she is subject to one of the mandatory bars to asylum, such as committing a particularly serious crime that makes the person a danger to the U.S. community or persecuting others.”

Also, the government is still refusing to stop all deportations to Haiti, despite the humanitarian disaster there.

Haitians who attempt to enter the United States now or in the future will not be granted TPS. DHS has been repatriating Haitians seeking to illegally enter the United States since the earthquake in 2010. The U.S. Coast Guard has been intercepting Haitians at sea and returning Haitians who have attempted to enter the United States illegally and who do not meet U.S. protection screening criteria; U.S. Customs and Border Protection has been removing inadmissible Haitians who have arrived at U.S. ports of entry consistent with U.S. policy; and—since January 2011—U.S. Immigration and Customs and Enforcement (ICE) has removed certain Haitians who have been convicted of certain criminal offenses (or who pose a threat to U.S. national security) and have been issued a final order of removal.”

For some, this announcement may be a reason to celebrate, but for others the continued deportation of ineligible individuals could mean a death sentence in Haitian prison. Until the humanitarian crisis is over, the DHS should cease deportations…without qualification.

NYTimes: As Barriers to Lawyers Persist, Immigrant Advocates Ponder Solutions

NYTimes covers colloquium on immigrant representation crisis, “one of the blatant injustices of our time.”

Press Release: ICOP Publishes New Report on Due Process Crisis

Release Date: May 3, 2011

For Immediate Release

Contact: Conor Gleason (NewYorkCityICOP at, Immigration Court Observation Project

May 3, 2011 — Students from five New York City law schools today released a report that documents glaring lapses in the procedural rights afforded to immigrants facing deportation.  Fundamental Fairness: A Report on the Due Process Crisis in New York City Immigration Courts presents findings based on observations from 414 immigration hearings held in 2009 and 2010. The law students who authored the report are part of the National Lawyers Guild’s Immigration Court Observation Project (ICOP), a citywide initiative aimed at bringing greater transparency and accountability to Immigration Courts.

Through statistics and anecdotal evidence gathered during observations of individual immigrants’ public removal proceedings, the report documents the harsh reality faced by immigrants in New York City’s Immigration Courts.  One of its key findings is a persistent lack of access to adequate counsel in deportation hearings—a critical issue that was highlighted today in a colloquium convened by Judge Robert A. Katzmann’s Study Group on Immigrant Representation.  Participants included former Supreme Court Justice John Paul Stevens and a wide range of government actors, advocates, and private attorneys.

The new report also reveals the detrimental impact detention has on individuals and the overall fairness of the Immigration Court system for immigrants facing deportation. Detainees who appeared in NYC Immigration Courts recounted harrowing stories of inadequate medical care in detention, difficulties accessing counsel, and incompetent attorneys prolonging their detention or inadvertently precipitating their deportation. ICOP data indicate that many of these detained individuals were denied release on bond or offered bonds as high as $35,000.

The report also documents routine deficiencies in language access that compromised the ability of non-native English speakers to participate in their immigration cases.  Examples include one individual in removal proceedings who unknowingly waived a potential form of relief because of inadequate and incorrect interpretation.

Based on findings from the hundreds of hearings observed, the report recommends that Immigration Judges, the Department of Homeland Security, and legislators, take action to cure the due process deficiencies documented in the report. These include:

  • Guaranteeing detainees access to counsel
  • Minimizing the detention of immigrants by exercising discretion in taking individuals into custody and employing alternatives to physical incarceration
  • Setting affordable bond for all eligible detainees
  • Improving conditions of detention, including access to adequate medical care
  • Ensuring adequate language access and promoting transparency and professionalism in the courtroom
  • Enforcing immigrants’ rights to adequate, effective representation.

ICOP continues to observe immigration hearings at Varick Street Immigration Court and 26 Federal Plaza, and is actively working with similar groups outside of New York City to promote greater transparency and accountability in the nation’s Immigration Court system.

Notes to editors

A small group of law students founded ICOP in 2006 under the name “Detainee Working Group” as a response to chronic due process lapses in the Immigration Courts. Inspired in part by the National Lawyers Guild Legal Observers, ICOP’s mission is to promote transparency and accountability in the Immigration Courts through its observations and documentation. Currently, ICOP has expanded to include student organizers and observers from Brooklyn Law School, Cardozo School of Law, Columbia School of Law, CUNY School of Law, and New York University School of Law. Since its founding, ICOP has organized hundreds of New York-area law students to observe over one thousand hearings. In 2008, ICOP published its first report, Broken Justice: A Report on the Failures of the Court System for Immigration Detainees in New York City, documenting nearly 400 hearings observed between 2006 and 2007. For more information on ICOP, including copies of reports, visit

ICE Begins Second Round of Deportations to Haiti During Humanitarian Crisis

April 15, 2011, New York and Miami – Today, the Immigration and Customs Enforcement (ICE) agency of the United States Department of Homeland Security resumed deportations of Haitian nationals. On a conference call this morning, U.S. officials confirmed that they have received no assurances that the 19 individuals who were deported will be treated humanely upon their arrival in Haiti. In response, the Center for Constitutional Rights, University of Miami School of Law Human Rights Clinic and Immigration Clinic, FANM/Haitian Women of Miami, Alternative Chance, and Florida Immigrant Advocacy Center issued the following statement:

This morning, the United States deported a second group of Haitian men to face jail and death in post-earthquake Haiti. In January, a 34-year-old man, Wildrick Guerrier, died only 9 days after being deported to Haiti. Guerrier and 26 other men were jailed without being provided with clean water or food and were held in a cell covered with human feces and vomit. Guerrier and other men fell ill, exhibiting cholera-like symptoms, and were refused medical care.

As acknowledged by the U.S. State Department, conditions have only worsened since the January 2010 earthquake that caused ICE to suspend deportations. Haiti is reeling under a cholera epidemic, social unrest, and unsafe and deteriorating tent camps housing over 1.2 million displaced people. Haiti also continues its practice of jailing deportees with past criminal records under life-threatening conditions.

Yet ICE unexpectedly announced in December 2010 that it was lifting the ban on deportations to Haiti for individuals with past criminal records and began rounding up Haitian community members.

Before the first plane to Haiti left on January 20, a wide range of immigrants’ rights and human rights organizations warned that deportation could be a death sentence. On January 6, our organizations petitioned the Inter-American Commission on Human Rights (IACHR) to instruct the United States to halt the deportations. On February 4, the IACHR issued an order urging the United States not to deport the Haitian petitioners to Haiti and expressing serious concern about the deportations separating families and placing people with medical conditions in life-threatening conditions.

The cholera epidemic has resulted in over a quarter of a million known cases in Haiti with 4,717 reported deaths as of March 18, 2011. Even more alarming, a new study by the University of California, San Francisco (UCSF) and Harvard Medical School, published March 16, 2011 in the journal Lancet, is predicting that there could be nearly twice the number of previously expected cases of cholera – up to 779,000 – between this March and November 2011 alone. The U.S. government claims it is working with the government of Haiti towards “safe and humane” removals. This is simply not possible given the conditions on the ground, particularly in the jails where deportees are held.

The United States has an obligation not to deport anyone to death. Our country must live up to its human rights commitments and immediately halt any and all deportations to Haiti.

We call on the Obama Administration for an immediate halt to all removals to Haiti and the release of all Haitians being held with final orders of removal.