NEW YORK – The New York Civil Liberties Union and The Bronx Defenders have moved for a preliminary injunction in Velesaca v. Wolf et al., a joint lawsuit challenging the New York City ICE field office’s practice of jailing nearly all of the people they have arrested over the last three years without first conducting a legally-required assessment of whether the person should even be detained.
With the threat of COVID-19 increasing by the day, the preliminary injunction motion asks for an emergency order that would result in ICE releasing people from jails in New York and New Jersey. In the motion, the putative class asks the court for a speedy decision that the ICE ”No-Release Policy” is illegal and for an order directing ICE to consider whether a person should be released based on factors like low flight risk, low risk of danger, or disabilities, particularly given the ever increasing threat that the spread of coronavirus presents in crowded jail settings. Since the No-Release Policy was implemented in 2017, it has likely affected thousands.
“People harmed by ICE’s illegal No-Release Policy need urgent relief,” said NYCLU staff attorney Bobby Hodgson. “ICE improperly manipulated the detention process to imprison almost everyone they arrest, and right now that decision is putting many people in harm’s way as COVID-19 spreads. We’re asking the court to move swiftly to hear this case and restore the right to be considered for release to people targeted for arrest by ICE.”
Within 48 hours of an ICE arrest, the agency has to make a decision about whether a person truly needs to be detained, and they are only allowed to hold someone who presents a flight risk or a danger. While ICE used to routinely release people on recognizance or bond who posed no risk—or who had disabilities that made detention inhumane--the No-Release Policy has meant that virtually no one gets out until weeks or months have passed, if at all
To pull this off, ICE manipulated a computer program meant to assess a person’s risk so that even those the program deems the lowest risk are recommended for detention. For example, from 2013 to June 2017, approximately 47 percent of people deemed to be low risk by the government were granted release. From June 2017 to September 2019, that figure plummeted to three percent.
"Public health experts warn that COVID-19 will likely spread to ICE jails in a matter of days, not weeks.,” said Thomas Scott-Railton, an Immigrant Justice Corps fellow with The Bronx Defenders. “ICE is continuing to snatch people out of the safety of their homes, including people who have disabilities that put them at greater risks from the spread of coronavirus, and placing them in these jails. ICE is legally required to evaluate people for release and it is urgent for the court to order ICE to conduct those evaluations and release people to safety."
The lawsuit was initially filed February 28 on behalf of a class of plaintiffs being held in immigration detention in ICE’s New York City-area jails. The NYCLU first discovered the details of ICE’s secret No-Release Policy through a Freedom of Information Act lawsuit.