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Defending Immigrants in a Time of Coronavirus

Scott Doyle: While immigration enforcement is largely a federal responsibility, local officials have considerable discretion over whether or not to cooperate with federal immigration authorities.

As COVID-19 has swept across a nation ill-prepared to handle a public health crisis, a situation exacerbated by the Trump administration’s halting and muddled response, local and state government has in many cases stepped up to fill that leadership gap. This is especially important when it comes to protecting those most vulnerable to the virus’s ravages: the poor, the undocumented, the unhoused—and those behind bars.

ICE Raids

Experts warn that the nation’s overcrowded jails are “petri dishes,” “tinderboxes,” a disaster waiting to happen. Last Friday, dozens of top public health experts wrote President Trump urging him to take immediate steps to protect prison inmates and immigration detainees. In New York City, the jail system’s chief physician warned that “a storm is coming.” As The Marshall Project asks, how do you contain coronavirus in a system where in many cases Purell is deemed contraband?

In some ways the immigration detention centers subcontracted by ICE—run by private for-profit companies, and where detainees have little in the way of due process rights—are subject to fewer checks and balances. Advocates have for some time raised concerns about subpar conditions. A report by Human Rights Watch and others found that at least half of detainee deaths were due to inadequate medical care. Last year, the Department of Homeland Security’s own Inspector General “observed immediate risks or egregious violations of detention standards at facilities in Adelanto, California, and Essex County, New Jersey, including nooses in detainee cells, overly restrictive segregation, inadequate medical care, unreported security incidents, and significant food safety issues.”

But immigration is a federal issue, right?What can local officials really do?

More than most people realize. While immigration enforcement is largely a federal responsibility, local officials have considerable discretion over whether or not to cooperate with federal immigration authorities. In ways that mostly escape headlines and public scrutiny, local law enforcement is ICE’s secret weapon.

While immigration enforcement is largely a federal responsibility, local officials have considerable discretion over whether or not to cooperate with federal immigration authorities.

Local officials can essentially choose not to feed the deportation pipeline. And they can support a legal safety net for those facing deportation.

The second issue—in the form of renewed funding for the LA Justice Fund—will be before both the County Board of Supervisors and the LA City Council in the coming weeks.

On the first front, the Board has positioned itself to potentially take bold action at today’s virtual public meeting. Last week, BOS Chair Kathryn Barger issued an Executive Order asking the County Health Officer to conduct an “immediate assessment” of county jails and to identify all “necessary and appropriate measures” to prevent COVID-19 from spreading like wildfire through the nation’s largest jail system.

JusticeLA is hoping the Board will seize the moment and take aggressive action to dramatically reduce the county’s jail population. And the Zero ICE Transfers Coalition is hoping the Board will finally put an end to the Los Angeles Sheriff’s Department’s longstanding history of taking Angelenos released from County jails after they have served their time and handing them directly over to ICE.

“Click-and-Arrest”

The issue of ICE transfers (a kind of family separation that takes place right in our backyard, outside the public eye) has long been a matter of contention between advocates and LASD. If supervisors were to take decisive action on the matter today, they would be echoing the recommendations of the Sheriff’s Civilian Oversight Commission the Board itself created a few years ago.

The term “transfers” doesn’t adequately capture the egregiousness of a practice that essentially amounts to a second arrest—one almost entirely without due process.

A key element in ICE’s toolbox (and technically known as an “immigration detainer”), it dates back to the Secure Communities program—created under George W. Bush and then expanded dramatically under Obama. The program created an interface between DHS and FBI databases that allowed ICE to receive, automatically and in real time, the fingerprints of any person booked into a local jail. When ICE flags someone as deportable (or “removable” in the agency’s jargon), they can ask local law enforcement to hold them after their sentence is over so they can be transferred to ICE custody.

Even after someone has served their time and is, as far as the criminal justice system is concerned, free to go about their lives again, ICE can swoop in and conduct what amounts to a second arrest and transport someone to a detention center like Adelanto where they will serve what amounts to a second sentence—again, with very little in the way of due process rights. It’s the pernicious result of allowing criminal justice mechanisms to intermingle with immigration enforcement, which is supposed to be a civil matter.

You may be thinking that sounds unconstitutional. Last fall, in a case whose closing arguments were heard in a courthouse in downtown Los Angeles, a federal court struck a serious blow to the practice. Judge André Birotte, Jr. ruled that ICE’s use of immigration detainers violated the fourth amendment’s protections against unreasonable searches and seizures on two counts: relying on an error-ridden database to determine probable cause; and using local law enforcement officers who lack the authority to make civil immigration arrests.

LASD and the deportation pipeline

Yet the practice of transfers continues in modified form. Under former Sheriff Jim McDonnell, over a thousand Angelenos were transferred annually from LASD to ICE. Although McDonnell claimed these were “the worst of the worst,” a close look at the numbers reveals that the vast majority of those transferred had been in prison for misdemeanors, or nonviolent property or drug-related offenses.

Current Sheriff Alex Villanueva ran as a reformer who would “not allow our jails to be a pipeline to deportation” and who would “kick ICE out of the jails.” Yet in spite of eliminating some misdemeanors from the list of qualifying charges and implementing cosmetic changes (ICE subcontractors now enter County jails to facilitate transfers), Villanueva still allowed at least 457 transfers to take place last year—and at least four this month, even as the threat of COVID-19 became apparent.

Recognizing the moral and constitutional issues at stake, last year the Sheriff’s Civilian Oversight Commission released a set of non-binding recommendations regarding LASD’s cooperation with federal immigration enforcement authorities. The report included a recommendation that the Sheriff cease to honor immigration detainers in the absence of a federal judicial warrant.

Now, with the stakes considerably higher, the Board of Supervisors has the opportunity to put the force of law into that recommendation.

adelanto

The legal safety net of the LA Justice Fund

Unfortunately—and via a variety of routes that reveal just how broken and capricious our immigration system is—hundreds of refugees, asylum seekers, and undocumented immigrants (and even some with legal status) end up at the immigration detention center in Adelanto run by the for-profit GEO Group. (And, in a turn of events that is the subject of another article, GEO and two other companies operating facilities in California last year negotiated agreements that would allow them to collectively add 2,100 more detention beds in the state—agreements reached days before a new law banning for-profit detention centers goes into effect.)

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Advocates have for years argued that, in the absence of a right to counsel or anything in immigration court comparable to a public defender’s office, local government should step up and fill the void. In New York City, the New York Immigrant Family Unity Project was launched in 2013. In its first years, attorneys funded by the program won 31% of their cases—a staggering contrast to the 4% success rate of those without representation. In 2017 the program went statewide, the first of its kind in the nation.

Los Angeles finally launched its own program, the LA Justice Fund, in 2017. The $10 million pilot program—a joint collaboration between the City, County, and private foundations—was not, unlike the program in New York and in other California jurisdictions, created on a universal representation model. It comes with a long laundry list of offenses in the penal code that exclude detainees from participation. But in just two years the program has taken on 517 clients, with almost half of the cases closed resulting in favorable outcomes.

With the pilot period over, advocates are asking the City and County to build on this early success and strengthen the legal safety net for those facing deportation. While the Mayor’s office has indicated strong support, City Council leaders have been sending decidedly mixed messages.

The LA City Council’s numbers game

The answers numbers and statistics give you depend on the questions you ask of them. As the numbers from the Justice Fund’s pilot program began trickling in, it became clear that the questions City Councilmembers were asking was: Are we getting our money’s worth? What kind of bang are we getting for our buck?

From the start, Council leaders have been fixated on the fact that a majority of the 517 cases (438 to be exact) remained open and unresolved. In their view, the Fund’s value proposition could be calculated by taking the budget and dividing it by the number of successfully resolved cases. This calculus ignores the complicated realities of deportation defense; the cost of restrictions City and County leaders imposed on the program; and the very real (and life-saving) interim victories won along the way.

For example, 23% of detained clients have been released on bond and allowed to return to their family and community. The ripple effects of those successes alone are huge. Paradoxically, that initial victory makes it likely that the cases will remain open and unresolved (unsatisfactory results, in the view of Council leaders) for an extended time. Attorneys report cases in which an initial court appearance isn’t scheduled until 2022.

But on balance, these open cases represent hope.

Advocates and supporters at the Immigrant Affairs Committee meeting earlier this month.

Advocates and supporters at the Immigrant Affairs Committee meeting earlier this month.

Mixed messages

Nonetheless, Council leaders appear to be preoccupied with the large number of open cases. In a meeting of the Immigrant Affairs Committee early this month, a report by the Chief Legislative Analyst (the Council’s research arm) recommended that funding only be extended a year while the Council evaluates longterm options—and that it be restricted to existing cases only.

To advocates and participating attorneys, this is a worrisome sign that the Council is qualifying and pulling back on its support of the program and hedging its future commitment at a time when it should be deepening its support. On a practical level, such a restriction would prevent groups providing representation from strengthening their capacity.

As a report from the Vera Center points out, the Justice Fund is fundamentally about building capacity. In a short two years, it has successfully “laid the foundation for a robust and collaborative deportation defense network across Los Angeles.” In other words, for years there has been a deportation pipeline; now there are the beginnings of a deportation defense pipeline.

That robust network consists of 114 attorneys now providing removal defense in the Los Angeles area, only 41 of whom are funded by the LA Justice Fund. That is exactly the kind of multiplier effect good public programs should have. The shared office space five minutes from Adelanto some of the participating attorneys and support staff use is not only a base for removal defense, but a consistent presence near a detention center sorely lacking in accountability and oversight.

“This presence has allowed attorneys to collaborate and present a united front against the injustices of immigration detention,” says attorney Patricia Ortiz. “With more people there, we are better able to monitor the situation at the facility and respond to the issues we see. There are more attorneys there who can sound the alarm on distressing practices or corroborate what others are experiencing. This has led to increased attention on the facility not just by legal services providers, but also by media, representatives, other stakeholders and the community at large.”

To that taxing and emotionally draining list of responsibilities, attorneys must now add the new challenges posed by the COVID-19 pandemic. Ortiz says she and her staff have been going through their cases to identify high-risk clients and file requests for humanitarian parole. Immigration court continues to operate even as other courts have shut down. At court hearings and in their visits to clients at Adelanto, attorney must provide their own protective gear at a time when even health professionals have trouble procuring what they need.

The pandemic only underscores what has always been true: the Justice Fund is quite literally a lifeline for detainees isolated from support and resources, now more than ever. The benefits of the program can never fully be quantified. As Tess Feldman of the Los Angeles LGBT Center stated in her testimony before the Immigrant Affairs Committee, their work has only begun once they win a client’s release. They coordinate housing, mental health services, employment, health care, and even English classes.

“The Los Angeles Justice Fund has allowed me to fight with my clients from over thirty countries. This funding is not only about immigrant rights and representation; it is about ending homelessness, increasing access to employment, keeping people of color safe and ending systemic discrimination in the detention centers and immigration courts.”

Beyond these many benefits of the program, and beyond the question of cases won or ‘lost,’ there is priceless value in standing by a refugee or asylum seeker at a critical and vulnerable moment of their lives—in letting them know that, while America as a nation may have failed them, some have chosen to stand by them.

It is uncertain at this time when the matter of renewed funding for the LA Justice Fund will be taken up by the full Council. In the meantime, you can voice your support for the program by calling and emailing your Councilmember, and by filing public comments online with the City Clerk.

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Scott Doyle

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