When ICE came to Court
What happens when immigration officers show up undercover during a criminal trial?
On Tuesday, November 28, Genaro Rojas-Hernandez, a 30-year-old New Yorker from Mexico, was sitting in the courtroom, speaking to his lawyer. He was in court for assault and harassment charges. Two burly-looking men, dressed in hoodies, tennis shoes, and jeans approached him from the public gallery. They announced to Rojas-Hernandez, and to the room at large, that they were from Immigration and Customs Enforcement. As one, they they each placed a hand beneath both of Rojas-Hernandez’s arms and lifted him up out of his seat. The man did not cry out. As the officers took him into a back room, he did not say anything at all.
In a statement, ICE said Rojas-Hernandez was permitted to complete his hearing before they apprehended him.
“I’ll never forget his face,” said Jane Sampeur, a lawyer in the courtroom who witnessed the seizure. “He was terrified. He was absolutely terrified. The fear and the look in his eyes…I’ll never forget it.”
Rojas-Hernandez was held in a back room while his attorney, Rebecca Kavanagh, tried to get in and speak with him. Usually — but not always — the detainee is allowed to talk to their lawyer as soon as they are seized. But not this time. This time, the ICE agents stood guard over their charge, refusing to let Kavanagh — or anyone else — approach him. ‘‘I was pushed and shoved by NYC court sergeant and ICE agents who pounced on him while I tried to speak to him” Kavanagh wrote in a tweet.
Back in the courtroom, a chaotic scene was unfolding. Word spread quickly through the courthouse. Jeremy Fredricksen, the Vice President for the Association of Brooklyn Attorneys, was in another hearing when someone told him ICE was in the building. He rushed over to Rojas-Hernandez’s courtroom at once, to find around a mob of twenty attorneys battling with the judge. It was an odd sight to see so many lawyers gathered in one place like that. “It was just a lot of confusion and tension, a moment of panic,” Fredricksen said. Kavanagh was eventually allowed into the room to speak with her client, under the watchful presence of the agents, who would not allow the two to speak in private.
Meanwhile, the battle with the judge turned to the question of where Rojas-Hernandez would be taken. The lawyers wanted him to stay in New York City in criminal custody so that he could keep coming to court. They argued he had not finished his hearings. According to Fredricksen, the prosecutors refused to help with the defence attorneys’ plea. “All we were asking was, send our client to Rikers Island, not to ICE custody,” he said.
The judge refused, and Rojas-Hernandez was taken away. Nicholas Wiltsie, another staff attorney at Legal Aid, saw him leave with the agents. He wasn’t convinced the man really understood what was going on. “So much was probably going through his mind at that moment,’’ he said.
When someone is arrested by ICE in New York City, they are taken first to 201 Varick Street, an imposing Art Deco fortress in Greenwich Village, housing an enormous immigration processing center. Once processed, inmates are generally sent to County Jail in Bergen or Hudson, NJ, or sometimes Orange County, NY. These jails all have dedicated sections for ICE detainees.
People who disappear into immigration custody leave a void behind. Rojas-Hernandez had his lawyer present when he was taken — but ICE aren’t under any obligation to inform a family member when they seize someone. In the past, lawyers have had to scramble to make sure their clients’ kids are collected from school later in the afternoon. “Who’s going to pick them up otherwise?” said Wiltsie.
According to ICE’s Detainee Locator System, Rojas-Hernandez is currently being held at Bergen County Jail. But it can be very difficult to find out where people have been taken. The online system is sphinx-like in nature. In order to find a family member — who may have long, numerous, or complicated names, the searcher must try every possible combination of spellings before their relative pops up. The system is so obtuse that people frequently panic when they can’t find their loved ones on file, with no amount of searching yielding their whereabouts. Veteran attorney S. Michael Musa-Obregon, who runs his own immigration law firm, often has to take over the task of finding his junior attorneys’ clients when even they are defeated by the system.
“When people get arrested by immigration, they’re much more demoralized than they are when they’re in the criminal justice system,’ Musa-Obregon said. He’s not sure why this is, but believes it might be because people know there’s a chance they could be detained for months, even years. “When someone’s arrested by the police, they get their custody determination in 24 hours. In immigration, there’s no such thing.” Days, weeks, and months slip by as people are held without any developments. This applies even for small offenses such as overstaying a visa. At any rate, Wiltsie says, “it’s not like they’re going to wake up in their home countries tomorrow morning.”
Often, Musa-Obregon says, immigration inmates don’t know the jail rules, have no idea of their rights and have to fight for telephone privileges to contact their families or a lawyer. If something urgent happens at home, Bergen County Jail advises relatives to leave a telephone message for inmates over the phone.
It’s not clear whether Rojas-Hernandez will be able to stay in the US long enough to receive a verdict for his assault charges. According to Musa-Obregon, the accused are often deported without being declared innocent or guilty.
Nine days after Rojas-Hernandez was taken away, two hundred lawyers gathered outside the Brooklyn Criminal Court to protest the seizure. “It was the last straw,” Jane Sampeur, who spoke at the event, said. The courthouse has become a crossover point between the criminal justice and immigration system. Lawyers at the protest were furious: their clients are afraid to come to court, afraid to engage with a system they have a constitutional right to use.