Lawyers protest dangers at detention center

Lawyers defending immigrants in deportation hearings and other legal proceedings in Batavia refused to appear in court Tuesday, saying federal authorities have failed to protect all parties involved from exposure to COVID-19.

Attorneys from the Volunteer Lawyers Project and Prisoners Legal Services of New York also  said that Immigration and Customs Enforcement, or ICE, has effectively stopped them from representing their clients in court by requiring face masks and other protective equipment that they can’t obtain because of shortages and that ICE won’t provide.

The federal immigration court has continued to operate despite a plea last Friday from State Attorney General Letitia James to suspend activities until safety precautions are put in place that are similar to what federal and state courts have instituted.

“These are unprecedented times,” James said in a letter to Attorney General William Barr. “It is imperative that all agencies adjust policies and practices to protect the health and welfare of our community.”

Thirty-five immigration attorneys and law school graduates, in a letter to the court, said their staff had been present in courtrooms where there were 10 or more people and little separation between detained clients. As well, the attorneys said they had to share a seating area and microphones with other defense counsel. 

“These dangerous conditions contravene Governor Cuomo’s executive orders and place the safety of our clients, staff, and their families in jeopardy,” the letter from defense attorneys said. 

“The Batavia Immigration Court, unlike all other New York State and federal courts in New York State, has not adopted any precautionary measures to safeguard the health of those appearing before it.”

Only a handful of hearings were conducted Tuesday, all by phone.

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The developments punctuated growing tensions regarding the Batavia court and federal detention center, which can hold up to 650 detainees and employs some 360 workers, according to The Batavian, making it a substantial local employer. Defense attorneys and other advocates have previously requested improvements to protect those housed there from exposure to COVID-19 and say federal authorities have been short on answers.

A spokesman for the court did not comment late Tuesday on the Batavia facility specifically, but said officials continue to monitor the spread of the virus and will make decisions as more information becomes available. 

An ICE spokesman said Tuesday that no positive diagnoses of COVID-19 have been reported in Batavia, but did not respond to additional questions from Investigative Post.

Dr. Jaimie Meyer, a professor at Yale University and an expert in infectious diseases in detention facilities, said the turnover rate, the comings and goings of hundreds of staff, and the close quarters people are kept in — including those who are double-bunked and share toilet and sink space — intensify the potential for widespread infection. 

It is not a matter of if, but when, the virus begins to siege facilities like Batavia, Meyers said. 

“They’re really sitting ducks,” she said.

Concerns over facility

The Buffalo Federal Detention Center, located in the City of Batavia, opened in 1998. Most detention centers across the nation are managed by private contractors; the Batativa facility is one of the relatively few run by ICE.

Those detained there have been charged with assorted violations of immigration law. Some have been apprehended by ICE agents, others turned over by federal or state law enforcement agencies. Their length of stay can vary. Joseph Hechavarria, a Jamaican immigrant, spent five years in detention before a federal judge overruled the immigration courts and granted his release. 

ICE guidelines issued March 15 suspended social visits inside the facility and set up procedures for screening incoming detainees and isolating those with symptoms. The guidelines also call for the distribution of protective equipment to employees.

But Meyer, the Yale expert, said the plan is scant on details.

“Either the guidelines are deficient or we don’t have enough information to know if they’re deficient,” she said.

Meyer worked with attorneys, including Victoria Roeck of the New York chapter of the American Civil Liberties Union, to highlight areas of concern the ICE officials “fail to address” in the plan. The list was included in a March 17 letter sent to detention center administrators. 

Meyer, Roeck and others asked for procedures to be developed for social distancing; extra hygiene and sanitization supplies; education plans for the detainees on the virus symptoms and prevention measures; and virus screening for detainees and employees.

But even with precautions in place it’s “inevitable” that COVID-19 will infiltrate detention centers like Batavia due to the limitations of their design and purpose, Meyers said.

In her analysis, there is one glaring omission from the ICE guidelines. 

“We should be incarcerating fewer people and ‘de-carcerating’ as much as possible, so that the facilities are not overcrowded and they have the ability to allow people to socially distance,” she said.

Jennifer Connor, the executive director of Justice for Migrant Families WNY, said she is concerned about the quality of medical assistance available under normal circumstances.

Connor described the overall medical infrastructure as “poor” and said there have already been other viral outbreaks in the past year at the facility. 

Roeck said the same thing. Roeck said several individuals reported a flu virus had spread throughout the facility earlier this year. Connor said her organization had not heard of a flu outbreak, but did receive word of chickenpox spreading among detainees last year. Roeck heard similar chickenpox reports.

There’s one answer to remedy the situation, Connor said.

“The only way to protect both those detained and those who work there is to release everyone,” she said. 

Courtroom concerns, as well

The approach of the immigration court contrasts with drastic steps taken by state and local courts in New York. Most have been closed and new trials have been canceled. Courts that are open are primarily handling arraignments, done by video conferencing so that participants can practice social distancing.

Attorneys who spoke to Investigative Post described the immigration courtroom, which is inside the detention facility, as small in comparison to traditional courtroom spaces. Wednesdays are usually the busiest days, with about 25 hearings. About three hearings are held most other weekdays.

Attorneys for Prisoners Legal Services of New York and the Voluntary Lawyers Project suggested changes in court procedures in a March 17 Letter to the court. 

“The threat to human safety is not theoretical. It is real,” the letter said.

Though the organizations have not received a response, the immigration court judges on March 19 granted remote appearances to the “greatest extent possible” and limited the number of people allowed in the courtroom. Anyone who has tested positive or displays symptoms will be barred from court, the order said. 

Siana McLean, a private immigration attorney, said the updated measures were a “good start,” but fell short.

“It doesn’t do enough to acknowledge due process concerns and that various agencies, including the NY Attorney General, have called for the closure of the courts,” McLean said in an email.  “There is simply no acknowledgement that this is the only real way to stop the spread of the virus.”

McLean said the due process issues are numerous. In the detention center, detainees who are discussing pending hearings with attorneys are charged for the calls, which can be cost prohibitive for both parties, she said. In the courtroom, attorneys cannot discuss “off the record” matters with their clients, an important aspect of representation, when appearing by phone or video.

To use a phone appearance to complete a trial — when the court would make a determination on an individual’s possible deportation — would not be feasible, McLean said. 

“These restrictions are really putting the clients at a disadvantage,” she said.