FROM THE BEGINNING of the Trump administration, New York City Mayor Bill de Blasio has championed the notion that the nation’s largest city is also a sanctuary — a place where a majority of undocumented immigrants need not fear that a minor interaction with law enforcement would set them on a path to deportation.
While the rhetoric of the city’s liberal mayor may make sense politically, letters recently sent from the New York office of U.S. Immigration and Customs Enforcement, a subway stop away from City Hall, reveal a critical flaw in de Blasio’s assurances.
In recent months, ICE’s New York office has sent letters to the homes of several individuals shortly after they had interactions with the New York City Police Department, requesting that they come to the immigration agency’s office in Manhattan. Once there, they’ve been detained and, in at least two cases, placed in deportation proceedings, according to a copy of one of the letters, obtained by The Intercept, and interviews with attorneys from three of the city’s leading immigration advocacy organizations.
The organizations, which include the Bronx Defenders, Make the Road New York, and the Immigrant Defense Project, have together documented six cases of ICE letters received by individuals in the New York City area, though they suspect the actual number could be significantly higher. The organizations say the letters are unprecedented in recent New York history, reflecting a “new low” in the agency’s ramped up immigration enforcement efforts throughout the city, and undermining the sanctuary protections trumpeted from City Hall.
The dissemination of the letters “speaks volumes to the fear in immigrant communities,” Sarah Deri Oshiro, managing director of the Bronx Defenders Immigration Practice, told The Intercept. Though individuals who have received and abided by the letters have ended up in detention, nothing in the letters themselves explicitly indicates that detention would be a possibility. Instead, the letters arrive as an official, albeit vague, document from a federal law enforcement agency. Recipients are forced to decide between complying with the request or risking ICE showing up at their homes or workplaces.
For those on the receiving end, Deri Oshiro explained, the thinking is: “I don’t want to be detained when I’m taking my daughter to school. Or, I don’t want to be detained while my daughter is at school, and there’s no one to pick her up.” Fostering those sorts of ethical dilemmas as a matter of strategy or policy, Deri Oshiro argued, is particularly cruel. “It really takes advantage of that fear,” she said.
credit-make-the-road-new-york-1524755790 A letter from ICE asking its recipient to come to 201 Varick St. in New York.Photo courtesy Make the Road New York
According to attorneys, the letters have generally arrived roughly two weeks after the recipients were arrested and fingerprinted by the NYPD. Two of the recipients were arrested for low-level misdemeanor offenses, according to their lawyer, Lauren Migliaccio, an attorney with the Bronx Defenders. Both showed up to their ICE appointment and were detained, despite neither having open removal orders against them or criminal convictions. They are both now in deportation proceedings and remain in ICE custody.
The letters tell the recipients to come to 201 Varick Street, the address for immigration court and also an ICE processing center, “at the time and place indicated in connection with an official matter.” It also tells the recipient to ask for “a deportation officer” and to bring “Any Immigration Documents, Valid Passport and This Letter.” The authorizing official in the letter, provided by Make the Road, is James Rothermel, supervisory detention and deportation officer.
In response to a detailed list of questions, Rachael Yong Yow, a public affairs officer for ICE’s New York operations, emailed the following statement: “It is reasonable to assume that an encounter between local enforcement and an alien would bring that individual under agency scrutiny. However, all reporting requirements for those required and/or requested to report to U.S. Immigration and Customs Enforcement (ICE) are determined on a case by case basis. Following in person interviews, ERO deportation officers make individual determinations, on a case by case basis, if any enforcement action is warranted.”
When reached for comment, the mayor’s office said it had only recently learned of the practice via community members, and that it is in the process of gathering more information. “Our partners have recently brought these letters to our attention and we are looking into this new practice,” Rosemary Boeglin, communications director at the Mayor’s Office of Immigrant Affairs, said in an email to The Intercept.
THOUGH NEWS OF the ICE letters has circulated in New York’s immigrant community, their recent dissemination has not been reported before. In a time of heightened fear and paranoia, local advocates are urging immigrant New Yorkers who receive the letters to remain calm. Yasmine Farhang, an immigration lawyer with Make the Road, said she is aware of four additional cases of people receiving call-in letters. Her organization created a handout for community members, telling recipients of the letters to get in touch with an immigration attorney or one of their organizers.
“Failure to attend the appointment with ICE could lead to ICE coming to your home, your community, including your workplace, or your next court date to arrest you,” the flyer says.
While ICE and the Trump administration have worked hard to foster a public impression of widespread and dangerous criminality within immigrant communities, the letters distributed in New York, by the very nature of their request, seem guaranteed to attract people doing the opposite of hiding from law enforcement. “The very people who are choosing to respond in the way that ICE intends with these call-in letters are, on the spectrum of rule-following — they’re pretty far on one side, because there’s no actual authority cited on these call-in letters that says why you have to go in,” said Deri Oshiro.
NEW YORK, NY – APRIL 11: U.S. Immigration and Customs Enforcement (ICE), officers look to arrest an undocumented immigrant during an operation in the Bushwick neighborhood of Brooklyn on April 11, 2018 in New York City. New York is considered a “sanctuary city” for undocumented immigrants, and ICE receives little or no cooperation from local law enforcement. ICE said that officers arrested 225 people for violation of immigration laws during the 6-day operation, the largest in New York City in recent years. (Photo by John Moore/Getty Images)
U.S. Immigration and Customs Enforcement officers look to arrest an undocumented immigrant during an operation in Brooklyn on April 11, 2018, in New York. Photo: John Moore/Getty Images
In railing against sanctuary cities, ICE officials regularly argue that the agency must take additional steps to find and arrest its targets. While there is no legal definition of a sanctuary city, such jurisdictions typically refuse to hold individuals in local jails for suspected immigration violations until ICE officials arrive.
In January, de Blasio’s office announced a citywide guidance and new NYPD rules aimed at institutionalizing and clarifying the relationship between the local police department and the federal immigration enforcement agency. New York City would “not voluntarily cooperate with federal immigration enforcement activities, and will only coordinate in limited circumstances, including where there is a public safety risk,” the announcement said. Consistent with local law, the “NYPD shall only coordinate with or assist ICE in instances where the citywide Duty Chief (that Chief in charge of citywide operations at the time of the incident) has identified a public safety issue and conferred with the NYPD Legal Bureau on the need to coordinate with or provide assistance to ICE,” it went on to say.
The mayor’s office added that the city would continue a policy of holding in criminal custody individuals “who have been convicted of one of approximately 170 qualifying violent or serious felonies under” existing law on so-called immigration detainer requests — when ICE asks other law enforcement agencies to hold an individual in custody until ICE can determine their removability.
“We have been very clear that that our police officers and employees will not be a part of a federal deportation force,” de Blasio said at the time. The mayor’s announcement came with the support of NYPD commissioner James P. O’Neill. Echoing a phrase that has become common among police executives in big cities around the nation, O’Neill said, “The NYPD does not conduct civil immigration enforcement. The NYPD does not seek individual’s immigration status. Our work can only be done if every New Yorker has trust in the police and is willing to work with us in our collective efforts to ensure the safety of every neighborhood and every block of this great city.”
The citywide policy and police department rules in New York specifically prohibit city officials from cooperating with an immigration enforcement program known as 287(g), which, in its most common form, embeds ICE in local jails, allowing the agency direct access to suspected undocumented immigrants. Refusal to participate in the program has been a major thorn in the side of ICE and the Trump administration. But to hear both local officials in New York, as well as ICE and the federal government, describe it, one might be left with the impression that allowing ICE access to individuals in city jails is the only issue at play when it comes the interaction between local policing and federal immigration enforcement. That’s simply not the case, and the letters ICE has sent in New York are an example of why.
WHILE THE MODERN face of information-sharing between policing agencies is high-tech, the way in which many undocumented immigrants find themselves on a deportation officer’s arrest list relies on the old-fashioned fingerprint.
Every day, police officers in New York City make arrests, and most of those arrests result in fingerprints being taken. In New York City, once fingerprints get rolled, police share the data with a state agency called the Division of Criminal Justice Services. From there, the data is transmitted to the FBI for a criminal history check to prepare a rap sheet. As Larry Byrne, the NYPD’s deputy commissioner for legal matters, noted in April of last year, “Regardless of your immigration status, once we fingerprint you, your fingerprints go into a database in Albany. If ICE has tagged that person for notification for any reason, ICE is gonna know as a result of the arrest, not as a result of any contact from the NYPD.”
Like its counterparts at the NYPD, New York state’s Division of Criminal Justice Service strongly rejected implications that it plays any role in a Trump-ICE deportation dragnet. “Any assertion that DCJS is somehow willfully feeding information to ICE in order to assist with deportations is simply false,” Justin Mason, deputy director of public information, told The Intercept in an email. “DCJS does not proactively work with the federal government to provide information or determine an individual’s immigration status. Further, the only immigration information that is included on a rap sheet states whether or not an individual had been previously deported. There is nothing about an individual’s current immigration status on that document.”
Whether local or state law enforcement “willfully” or “proactively” cooperate with ICE’s agenda is somewhat beside the point, immigration advocates argue, and it has been for a long time. These call-in letters show that once there is a point of contact with law enforcement, cities and states don’t have to take active measures to aid ICE. The fingerprint data, and whatever actions come next, are out of their control.
Under Secure Communities — an immigration data-sharing initiative replaced under the Obama administration, then restarted by Trump during his first week in office — the information forwarded from a street level encounter up to the federal level is also made available to a Department of Homeland Security database called “IDENT.” The IDENT database includes “biometric information and other personal data on over 200 millions of people who have entered, attempted to enter, and exited the United States of America,” according to Gemalto, the company that administers the database.
Put simply, once the NYPD takes an individual’s fingerprints, their personal data becomes part of the vast pool of information shared with federal law enforcement — meaning that even the low-level encounters de Blasio’s office seeks to wall-off from ICE can still become the first step to deportation in the sanctuary city of New York. Migliaccio, the Bronx Defenders attorney, confirmed that both of her clients were fingerprinted prior to receiving letters from ICE.
At its peak during the middle stages of the Obama administration, the Secure Communities program allowed for the deportation of thousands of people across the country per month; more than 8,000 deportations were carried out during August 2012 alone. Responding to pressure from immigration advocacy groups, the Obama White House eventually replaced Secure Communities with the Priority Enforcement Program, which sought to limit ICE detainer requests to individuals who had been convicted of crimes or were considered threats to national security.
According to a report published this week by the Transactional Records Access Clearinghouse, or TRAC, at Syracuse University, Secure Communities deportation numbers under Trump have not yet reached peak Obama administration levels. However, the report does note a significant change in the kinds of offenses that lead to deportations through the fingerprint-based Secure Communities program under Trump, with the top ten fastest growing offense categories under the administration “generally” made up of “misdemeanors or petty offenses.”
In a so-called sanctuary city like New York, this shift in priorities, alongside pre-existing data-sharing practices, is particularly troubling, argued Deri Oshiro of the Bronx Defenders. Under existing city policies, if a person gets arrested for marijuana, for example, they might not go to central booking and get arraigned before a judge. Instead, they’ll get taken to the precinct and given a ticket, and likely get fingerprinted. For immigrants out of status, the arrest itself is the problem. “It is still the case that once you’re printed, you get on ICE’s radar in a way that is ultimately potentially incredibly detrimental,” said Deri Oshiro.
If the DHS database receives a hit, it notifies ICE and determines whether the person is considered “removable.” In some cases, ICE will be flagged if the individual was born outside the U.S., even if there’s no match, according to research done by Anil Kalhan, a law professor at Drexel University. Kalhan told the The Intercept that ICE’s call-in letters struck him as “an irregular way of saying, ‘Hey, we’re interested in talking with you,’” rather than a clear policy guided by a rule or regulation. “I haven’t heard of things happening like that in the last eight or nine years.”
Migliaccio, the Bronx Defenders attorney, said one of her clients was detained in late February, and the other in early March. “I can’t go into the exact nature and details of the arrests, but both arrests and allegations were low-level misdemeanor charges,” said Migliaccio. The lawyer claims she was was given no information about why her client had been called in, and was not able to be with him when an ICE official determined whether he would remain in custody pending his hearing.
The first time Migliaccio went with her client to Varick Street, they were alone, but when she returned with her second client on March 8, she saw “about four other attorneys, and there appeared to be five or six other people who weren’t represented by counsel,” all of whom, she said, had been summoned to the ICE office via letter. “There appeared to be a dramatic increase from the first day to the second day,” Migliaccio said.
Migliaccio’s second client is married to a U.S. citizen and has a pending application for a green card. Migliaccio asked to speak with a supervisor to determine not only what was happening with her client, but also to get more information about the call-in letters program. After being initially told her client wouldn’t be kept in custody, “a supervisory deportation came out and detained” her, Migliaccio said.
The letters come at a time of escalating tensions between ICE’s New York office and the immigration law community. Last year, the Immigrant Defense Project reported a 900 percent increase in ICE arrests or attempted arrests in New York City courts. As it has done when faced with criticisms across the country, ICE has defended its actions in New York by arguing that it has no other choice — if lawmakers like de Blasio would drop the sanctuary city posture, the agency contends, it wouldn’t need to send deportation officers into city courts.
New York immigration attorneys have responded to the provocative arrests by staging increasingly regular walk-outs and demonstrations, with some lawyers growing so accustomed to ICE’s actions that they have started bringing their protest signs to work. When not arresting people in court, ICE has also hit New York with sweeping arrest operations throughout the five boroughs, including six days of raids earlier this month that resulted in 225 arrests. “ICE no longer exempts classes or categories of removable aliens from potential enforcement,” ICE said in a press release announcing the operation, repeating a boilerplate mantra that has become the agency’s calling card in the Trump era.
Responding to the mounting accounts of controversial activity, New York Gov. Andrew Cuomo sent a “cease and desist” notice to ICE on Wednesday, calling the agency’s recent conduct, “irresponsible, and in many cases, illegal.” A few hours later, immigration attorneys were again demonstrating outside a New York City court to protest the arrest of a client outside the building.
Migliaccio, the Bronx Defenders attorney, saw her second client recently, the woman who is married to a U.S. citizen, after she’d been in ICE detention for roughly a month and a half awaiting her immigration court date. “She is traumatized, and it’s very evident that she’s been so profoundly shaken by this,” Migliaccio said. She’s being held in New Jersey, which makes it difficult for her family to visit. It means they have to miss work, or find childcare. “She walked into the room we were meeting in,” Migliaccio recalled. “And burst into tears.”
Ultimately, the advocates say, this policy is about creating not only a two-tiered justice system, but a two-tiered society in which some people are welcome and some are not. “One of the underlying goals of this administration’s writ-large policies is encouraging people to self-deport,” Deri Oshiro, from the Bronx Defenders, said, referring to a theory popular among hard-right immigration restrictions that turns on the idea of making life so precarious and terrifying for undocumented people that they begin to leave the country on their own, saving the government from the challenge of removing millions of individuals through the already overburdened immigration system.
“Some people just don’t want to live in this climate,” Deri Oshiro said. “And these call-in letters are kind of an extension of that mentality.”