Natalia Aristizabal speaks at a press conference organized by Make the Road New York demanding due process for all at City Hall Park on May 23, 2018  © 2018 Rebecca Chowdhury/Human Rights Watch

 

(New York) – A New York City limit on legal services for immigrants will do far more harm than the Mayor’s office claims and undercut the city’s larger push to bolster immigrant rights protections, Human Rights Watch said today.

The policy, referred to as the criminal carveout, excludes immigrants with certain criminal convictions from city-funded immigrant legal services. It has been added to city contracts with organizations that provide immigrant legal services. Organizations that rely exclusively on city-funding will need to turn away clients with disqualifying felony convictions. Providers say this will increase the amount of misinformation and fear in immigrant communities and create a chilling effect on the immigrant communities that access their services. Mayor Bill de Blasio should reverse the new policy.

“The so-called ‘criminal carveout’ will force attorneys to abandon clients they should be helping and create mistrust between immigrants and organizations that rely on city funding,” said Rebecca Chowdhury, senior legal coordinator at Human Rights Watch. “This policy seriously undermines the city’s own remarkable efforts to support local groups and ensure that low-income immigrants can fight to remain with their families and communities.”

The Mayor’s office of Immigrant Affairs told Human Rights Watch that the carveout seeks to ensure the smart prioritization of limited resources. The office contends that the carveout will have a limited impact. It emphasizes that providers will be able to use other sources of funding to serve excluded clients, whom the office describes as a public safety risk. The office has responded to Human Rights Watch’s findings in a letter.

In interviews with Human Rights Watch, staff at 10 organizations that receive city funding to provide immigrant legal services painted a vastly different picture of the carveout’s impact. Three of those organizations rely exclusively on city funding and will need to turn away clients they can no longer serve. Clients may not understand the complex basis for exclusions mandated by the city and as a result spread misinformation, which will undermine the trust both attorneys and their organizations have built with the community. This, in turn, will cause a chilling effect that will deter some immigrants from seeking resources or services.

Several attorneys shared with Human Rights Watch the stories of clients they had successfully helped, but who would now be excluded under the criminal carveout. These are stories of parents, breadwinners, and valued community members who may qualify for immigration relief despite the complexity of their cases. For example:

  • “Cecilia,” whose US citizen husband abused her for years, was convicted of manslaughter after killing him in what she said was an act of self-defense, but was subsequently allowed to remain in the US under provisions of the Violence Against Women Act (VAWA);
  • “Joshua,” a father of five US citizen children, was picked up by ICE on his way to court to fight a burglary charge and was ultimately acquitted; and
  • “Alisha,” a mother who was forced by an abusive boyfriend to transport drugs, and was ultimately placed in immigration detention.

The fates of Cecilia, Joshua, and Alisha are not only important to their families but also to their attorneys, who share a commitment to due process for all. “We want to keep working with long-term clients because we’re human and so are they. We’re not going to throw people away because they have a conviction,” said Corina Bogaciu, Supervising Attorney at African Services Committee told Human Rights Watch.

For details of the changes in services and how they affect potential clients, please see below.

The Criminal Carveout in New York City 

Under federal law, immigrants in deportation proceedings or at risk of deportation have no guaranteed right of access to free counsel. New York City has made a remarkable investment of approximately US$31 million for the current fiscal year to defend immigrants from deportation and assist low-income immigrants with legal services for immigration matters. Thanks to that funding, more low-income immigrants in New York City can access free legal services for a variety of situations such as applying for citizenship or a green card renewal, changing their legal status, or seeking help to understand whether they qualify for special forms of immigration relief.

The criminal carveout, which the Mayor’s Office started adding to contracts in late 2017, excludes certain immigrants from legal services. It excludes immigrants who have been convicted in the past five years of any one of 170 disqualifying crimes from receiving city-funded legal services. That list of 170 crimes is drawn from the city’s detainer law, commonly referred to as its sanctuary policy. Under this policy, New York City does not detain immigrants in city precincts or jails at the request of US Immigration and Customs Enforcement (ICE), unless they fit specific criteria – including having been convicted of one of the 170 crimes in the past five years – and ICE produces a judicial warrant. Organizations that rely exclusively on city funding will need to turn away clients with disqualifying convictions. Since these clients are more likely to have complex cases, they are often among those most in need of urgent legal advice.

A Sample of People Whose Cases Would Be Excluded

  • “Cecilia” was sexually and physically abused by her husband. After he brought her to the country he cruelly abused and humiliated her. She eventually killed him. While she said this was an act of self-defense, she was convicted of manslaughter, which is one of the 170 crimes that would have made her ineligible for city-funded legal services under the criminal carveout. After serving her criminal sentence, Cecilia was able to attain free, city-funded immigrant legal services. She was able to present documentation of the horrendous abuse she had suffered at the hands of her United States citizen husband. With the help of her lawyer, Cecilia was granted the right to remain in the United States under the provisions of the Violence Against Women Act.
  • “Joshua” is the father of five US citizen children. He was falsely accused of burglary by his neighbor and arrested; burglary is one of the criminal carveout’s 170 enumerated crimes. Early in his criminal case, when he was on his way to criminal court for an appearance, he was detained by ICE. Joshua maintained his innocence and refused to plead guilty to any crime, causing his criminal case to stretch on for months as his defense attorney searched for exonerating evidence. He was ultimately acquitted. Before implementation of the carveout, Joshua’s immigration attorneys took his case on, worked closely with his family, community, and his criminal defender, and found video proof confirming Joshua’s innocence. As a result, the burglary charge was dropped. Joshua was subsequently released on bond from immigration detention and his immigration attorneys are working on his immigration defense. Joshua’s immigration attorneys told Human Rights Watch that if the carveout had existed when they were asked to take his case, it could have made it much harder for him to secure immigration representation. Though he had not yet been convicted, the carveout disincentivizes taking on a challenging case for immigration representation when there is a real possibility a client will soon be disqualified from services.
  • “Alisha” fled Jamaica as a teenager to escape trauma and violence. She has lived in the US for over 23 years, undocumented. According to Alisha, when she was 21, her abusive older boyfriend used her as a drug mule and forced her to take drugs to the airport. When she was arrested for drug trafficking, she pled guilty; she was too afraid to tell her attorney the truth because her boyfriend had threatened to kill her and her family. Alisha’s criminal history led to her immigration detention and she was ordered removed in 2014. Alisha found a city-funded, culturally sensitive community organization that provides free and low-cost immigration legal services. Her attorneys were able to secure her release and obtain a temporary stay of her deportation. They also connected her to an immigrant justice firm that helped her apply for post-conviction relief to vacate her drug conviction. At the same time, Alisha was required to check-in with ICE. Her attorneys accompanied her to all her ICE check-ins. Recently, ICE officials told Alisha she would be detained at her next check-in unless she could show progress toward lawful immigration status. As a result of the post-conviction relief, the drug trafficking charge was downgraded to a second-degree burglary charge. This meant she could now qualify for immigration relief through the Violence Against Women Act due to prolonged abuse by her now estranged US citizen husband. While the second-degree burglary charge will not impede her immigration case, it is one of the 170 crimes that would disqualify her from accessing free legal services under the criminal carveout. At the time of writing, Alisha had recently given birth and is the single mother of three US citizen children. Once the carve-out is implemented, her longtime attorneys will no longer have access to funding to help Alisha secure her immigration status through the Violence Against Women Act.

The Carveout’s Negative Impact

Speaking of incarcerated people, de Blasio has said that “everyone deserves a second chance,” and the mayor has made a strong commitment to re-entry services. The criminal carveout sends the opposite message, excluding some immigrant families from the possibility of a second chance, Human Rights Watch said.

Many of the immigrants who will be excluded have lived in the US long enough to have established families and long-standing community ties. These are factors that Human Rights Watch has long argued should mandate deep reforms to current US immigration policies, which are ramping up harmful deportations. Under current law, felony convictions make an immigration case more complex, though they do not necessarily preclude immigrants from available forms of relief. Sarah Deri Oshiro, managing director of the Immigration Practice at the Bronx Defenders, told Human Rights Watch, “This punishes people who need counsel the most.”

Staff at the organizations Human Rights Watch spoke with said they also fear that beyond the carveout’s immediate impact on people excluded from city-funded services, it will increase the amount of misinformation and fear already rampant in immigrant communities.

“This carveout poisons the relationship with clients,” said Danielle Alvarado, staff attorney at the Community Development Project. Providers interviewed emphasized that clients may not understand the complex basis for exclusions mandated by the city and as a result spread misinformation, leading potential clients to mistakenly believe that they or anyone with a criminal record will be turned away. They also said that the carveout will undermine the trust both attorneys and their organizations have built with communities and, in turn, create a chilling effect that will deter immigrants from seeking resources or services.

Providers already ask clients about their criminal history, but they do so after building trust with clients to ensure that the people seeking their services feel comfortable sharing personal details about their lives including the context around arrests. The carveout, however, would undermine efforts to establish a trusting attorney client relationship because providers would need to inquire about criminal histories in their initial consultation to understand whether they can represent a client.

Many clients are already wary of free services because they are concerned that providers are working with the city, and the carveout will only exacerbate this distrust. Terry Lawson, director of the Family and Immigration Unit at Bronx Legal Services, described these difficulties: “We’ve already had to explain to clients who see ICE in the courthouses, that we would never call ICE on them. There’s already great fear and the carveout only further chills access to our services, just like it chills access to the courts.”

Organizations predict that this chilling effect will expand beyond legal services and undermine other aspects of their work. Make the Road is a membership-based organization that works on a range of issues. Natalia Aristizabal, the co-director of organizing, described its potential impact: “Our offices are embedded in immigrant communities and we are often the place people turn to for trusted information and help. We fear the carveout will have a chilling effect on our members’ willingness to give time and energy to the organization.”

Sean Lai McMahon, staff attorney at the Community Development Project, said the carveout will harm the relationships legal service providers have created with membership-based organizations: “If you meet a prospective member but then can’t serve them because of the carveout, it undermines the concept that the community and the organization has your back and will fight for you.”

Providers said they fear it will push immigrants not excluded by the carveout to seek private attorneys. This would increase their susceptibility to fraud at the hands of notarios who pose as immigration attorneys and charge exorbitant prices to apply for incorrect or nonexistent immigration relief. In some cases, the negligence of notarios has led to their victims’ deportation.

Both the city and state administration have addressed this issue with important legislation to ensure that victims can attain justice, and by investing in free legal services for immigrants. The criminal carveout, however, would undermine the goals of current city funding contracts by pushing desperate immigrants to notarios. The city has described funding for free legal services as a “preferred alternative” to “combat” notarios.

Corina Bogaciu, supervising attorney at African Services Committee, summarized the dangerous consequences of the criminal carveout in written testimony before the city council’s Committee on Immigration: “Instituting a criminal carveout is tantamount to giving up on immigrants with criminal convictions even though they may have real immigration relief available to them.”

Providers also expressed concerns about the dangerous precedent this policy sets for other cities and states – a concern Human Rights Watch shares. Other cities and states are engaged in similar debates throughout the country. A New York City councilmember, Carlos Menchaca, has echoed these concerns. At a March 2018 hearing, he said: “What we do in New York City influences national conversation around policy and budget decisions. People are looking to us in the decisions that we make every single day. Big or small. Especially immigration issues during this challenging time.”

The Criminal Carveout’s Origins

In 2013, New York City created the New York Family Immigrant Unity Project (NYFIUP), which set a national precedent as the first program in the country to provide universal representation for low-income immigrants in immigration detention. Since then other cities have adopted similar programs.

The criminal carveout was first implemented on July 1, 2017, in relation to the New York Family Immigrant Unity Project. The mayor’s decision to implement the criminal carveout to the NYFIUP program was met with fierce resistance from several organizations. Ultimately, the issue was resolved through the procurement of private funding to ensure that no one is turned away from the program.

The city has now expanded the criminal carveout to all immigrant legal services. While the city claims that the addition of the criminal carveout to contracts with legal service providers was a long-planned part of their implementation of this policy, providers told Human Rights Watch they did not foresee this expansion of the criminal carveout to all immigrant legal services.