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December 21, 2020

ICE official reveals that the agency refused to comply with court order to cease use of rigged assessment tool

NEW YORK - In papers filed Friday evening, the New York Civil Liberties Union and The Bronx Defenders requested court enforcement in Velesaca v. Wolf, their case challenging the ICE New York Field Office’s use of a secret policy to jail virtually all of the thousands of people they have arrested over the last three years. As part of this “no-release policy,” in mid-2017 ICE rigged its own risk assessment algorithm to prohibit the tool from recommending release and to further discourage release by categorizing longstanding residents in the country as high risks. In March, a federal court found that this policy was unlawful and ordered ICE to return to its policies and practices prior to mid-2017.

The NYCLU and BxD requested that the court enforce its prior injunction in the case after learning through a deposition that ICE has continued the use of this illegal policy, in direct violation of the court’s March injunction ordering them to end this practice. ICE’s non-compliance with the order has resulted in unnecessary and prolonged incarceration for hundreds of detainees.

“Throughout the pandemic, ICE has operated secretly and in defiance of the court to continue its unlawful practice of mass detention,” said Donna Lieberman, executive director at the NYCLU. “This unprecedented and unconscionable action likely kept hundreds in ICE custody and at great risk of the COVID-19 virus. This shameful practice should have ended eight months ago, and people in ICE custody shouldn’t have to wait a day longer to receive this overdue relief.”

During a recent deposition about ICE’s compliance efforts, the acting assistant field office director, Judith Almodovar, testified that the agency had not changed any substantive policies or practices relating to the custody determinations to come into compliance with the Court’s order. The order had required ICE to do just that, and it had specifically prohibited ICE from using any of the stringent custody determination practices it adopted in mid-2017. Despite this, ICE continues to use the harsh version of the risk classification tool which it rigged in 2017.

"This witness confirmed our fears that ICE cares more about keeping people locked up away from their families than following a federal court order," said Thomas Scott-Railton, a fellow with the Impact Litigation Practice at the Bronx Defenders. "If ICE isn't going to respect the rights of detained immigrants, then we need the courts to step in."

The motion requests that the Court order ICE to return to its pre-2017 version of the risk assessment tool and abandon its 2017 No-Release policy.

Federal law requires ICE officers to make individualized custody determinations based on whether the person poses a flight risk or threat to public safety. Since 2013, the agency has used a risk assessment tool that considers factors like a person’s family ties, connections to community, time in the country and community, and criminal history. However, the data shows that this tool, which ICE offices use nationwide, was manipulated, most recently in mid-2017, to remove its ability to recommend anyone be released. The tool can now only make one substantive recommendation: detention without bond. The tool was also changed to automatically assume that many people arrested by ICE should get a high risk designation, regardless of how long they’ve lived in the country.

The NYCLU uncovered the practice as the result of a FOIA request it submitted to ICE.  After being forced to sue ICE in federal court for denying the request, the NYCLU obtained data revealing that starting in 2017, ICE’s New York Field Office has all but eliminated bond or release for people awaiting immigration hearings.

You can find case materials here: https://www.nyclu.org/en/cases/jose-l-velesaca-v-chad-wolf-et-al