Hofstra Law’s Deportation Defense Clinic Students Advocate on Behalf of Immigrants at Imminent Risk for Deportation
Hofstra Law’s Deportation Defense Clinic (DDC) was created in 2017 to represent immigrants on Long Island affected by the heightened immigration enforcement of the current administration. In its first year, 14 students participated in the DDC and represented 20 Long Island residents facing imminent deportation from the United States. The DDC also participated in law reform efforts (including the filing of a lawsuit to change policies that are negatively impacting immigrant communities in Nassau County), community outreach in the form of “Know Your Rights” presentations, and collaboration with community partners on a number of initiatives from legal training to protest and report drafting.
Under the supervision of the DDC’s faculty, Professor Emily Torstveit Ngara and clinical fellows Roni Amit and Lissette Eusebio, students interview clients, often at one of several detention facilities located in northern New Jersey or upstate New York, prepare legal documents, work with clients and their families to gather necessary evidence, and appear and argue in immigration court on their clients’ behalf.
Family unity has been a bedrock principle of our immigration system for the past 50 years, allowing U.S. citizens, Lawful Permanent Residents (LPRs) and green card holders to petition for LPR status for certain close relatives and often their immediate family members as well. Many of the DDC’s clients are longtime residents of Long Island who will face separation, possibly permanently, from their family members should they be removed (deported) from the U.S.
Immigration law and family law overlap when determining whether someone qualifies as a family member. For example, an adoption of a child of a U.S. citizen must take place before the age of 16 in order for the adopted child to qualify for immigration benefits. For a foreign adoption, other standards need to be satisfied. For Special Immigrant Juvenile Status (SIJS), a family court must be able to exercise jurisdiction over the child (defined by the Immigration and Nationality Act as people under the age of 21) and find that the child has been abused, abandoned or neglected by one or both parents and that it is not in the child’s best interest to be returned to his or her country of citizenship. Only then can the court grant custody or guardianship of the child to an adult or foster care facility. Those granted SIJS will then be able to apply for LPR status.
The assistance provided by the DDC covers a range of legal needs and fill in the gaps in the existing services available on Long Island. One focus of the DDC has been working to reopen removal proceedings where an immigration judge never considered the merits of the case before issuing the removal order. This can occur when, for example, individuals have missed a court date and were ordered removed as a result of their failure to appear. Since individuals with final orders of removal do not have the right to go before an immigration judge before being deported, the DDC works with them to try to get their cases reopened so that they are able to have their cases heard by an immigration judge in the hope of obtaining relief from removal. Without the assistance of the DDC, these individuals, if detained, may be deported within a matter of weeks. The relief sought by the DDC can include, but is not limited to, applying for SIJS or asylum for clients with a well-founded fear of persecution due to their race, religion, nationality, political opinions, or membership in a particular social group in their country of origin, or T nonimmigrant status (commonly referred to as a T visa) for victims of a severe form of human trafficking in the U.S. It can also include petitions by family members or lawful permanent residents on the immigrant’s behalf.
Another way for the DDC to assist clients is to challenge immigration detentions through bond hearings at which students request that an immigration judge set a monetary bond, similar to bail in the criminal context, to allow for the client’s release from detention. Once bond is granted, the removal proceedings continue, but with the individual no longer in detention, he or she is better able to assist in the preparation of the case. Upon the completion of the removal proceedings, the individual will either be granted relief from removal or will have to report for removal from the U.S., at which time the bond will be returned to the guarantor. The DDC has secured the release of two detained clients through bond hearings, both of whom have now returned to their families on Long Island.
In another case, DDC students secured the release of a former U.S. permanent resident who was in detention pending removal to a country where he knew he would face death. Due to a June 2017 Second Circuit decision clarifying the interpretation of the law, DDC students were successful in their attempt to have this client’s lawful permanent resident status reinstated. The client was released in December 2017 and was able to spend the winter holidays with his U.S. citizen child, who was born while he was in immigration detention.
The U.S. has a long history of preventing Central American, particularly Salvadoran, nationals from seeking asylum here. A class action lawsuit initiated in the late 1980s resulted in the granting of a federal injunction intended to protect the rights of Salvadoran nationals to apply for asylum. The injunction, last modified in 2007 in Orantes-Hernandez v. Gonzales, requires that the government refrain from “threats, misinformation, subterfuge or other forms of coercion” when informing Salvadoran nationals of the availability of voluntary departure, and prohibits misrepresenting the asylum and bond processes. The injunction also requires that the attorney of record have access to meet with his or her detained clients, that represented individuals not be moved away from the area where their attorney is located, and that the government provide sufficient notice to the attorney of record of the time and place of deportation. The DDC is currently working to return to the U.S. a client who was removed in violation of the Orantes injunction.
In addition to its client work, the DDC has developed three projects to further its mission of protecting vulnerable Long Islanders. The Impact Litigation Project pursues legal cases to effectuate broader changes in immigration policy and practice. The project instituted a first-of-its-kind suit in New York State challenging the Nassau County Police Department’s enforcement of Immigration and Customs Enforcement (ICE) detainers.
Specifically, the New York State Criminal Procedure Law (CPL), in limiting the authority of the police to make an arrest, authorizes them to do so when there is reasonable cause to believe a crime has been committed or when a crime is committed in an officer’s presence. However, local law enforcement officers in Nassau County are continuing to hold individuals at the request of ICE, even after there is no longer a criminal basis to do so (e.g., their bail has been paid, the charges have been dropped, they have been acquitted or served their sentence). In effect, the Nassau County Police and Sheriff’s departments are re-arresting these individuals without any legal authority. The documents provided by ICE when requesting these holds do not allege any criminal wrongdoing and do not seek to take custody in connection with any criminal proceeding. They allege only probable cause to believe that the individual is removable from the U.S. or has been ordered removed previously. Removability, however, is not a crime and is a strictly civil matter. The relief requested by the DDC in this lawsuit is a declaratory judgment finding that Nassau County’s policy of police cooperation with ICE is a violation of New York State law.
DDC students participating in the “Know Your Rights” Project give presentations in the community explaining to a variety of groups what their rights are in an encounter with ICE. This information is extremely important in the current climate of heightened enforcement. Many people do not know their rights, and even those who do sometimes find it difficult to assert those rights when interacting with ICE officials.
The DDC’s third project is Legislative and Administrative Advocacy. Students in the project monitor new proposed federal regulations and submit comments on those that will impact immigrant communities on Long Island. The DDC is also hoping to get involved in advocacy in the New York Legislature.
Protecting vulnerable immigrants on Long Island has become increasingly difficult in the current climate, particularly on Long Island where the need is so great. The Deportation Defense Clinic is proud to continue the fight to keep Long Island families together despite these challenges.