Settlement Secures Right to Consideration of Release for People Arrested by ICE in New York

ICE agrees to provide individualized custody determinations, abandoning a no-release policy implemented during Trump Administration

NEW YORK CITY – The New York Civil Liberties Union (NYCLU) and The Bronx Defenders today announced a settlement in Velesaca v. Decker, their 2020 lawsuit challenging Immigration and Customs Enforcements’ (ICE’s) secret practice of automatically and indefinitely incarcerating virtually all of the thousands of people it arrested between 2017 and 2020 for alleged immigration offenses. Finalized on Friday and approved by the Southern District of New York, the settlement secures the right to a fair release assessment for everyone arrested by ICE.

Federal law requires ICE officers to make individualized custody determinations to assess whether a person should be released or detained after being arrested. Since 2013, the agency had used a risk-assessment tool that considers factors like a person’s family ties, connections to community, time in the country, 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 could make only one substantive recommendation: detention without bond. Shortly after the plaintiffs brought the lawsuit, the court issued an injunction, requiring ICE to consider release or bond in every case.

“ICE’s default detention policy was cruel and unacceptable,” said Amy Belsher, senior staff attorney at the NYCLU. “The policy affected thousands of people, many long-time residents with U.S. family members. Beyond the devastating physical and mental health outcomes, those detained are separated from their families and face immense difficulties defending their right to remain in the United States from behind bars. Everybody is entitled to a fair chance at release.”

“Thousands of immigrants were separated from their loved ones and forced to face the inhumane conditions of incarceration under ICE’s ‘no-release’ policy,” said Kshithij Shrinath, Liman Fellow with the Impact Litigation Practice at The Bronx Defenders. “No one should have to fight their case behind bars or endure indefinite detention as the result of an ICE arrest. We will continue to monitor the agency’s custody determinations to ensure compliance and protect the rights of people unfairly detained.”

Under the settlement, ICE must consider release in every case, including alternatives to detention, like bond or remote monitoring. Officers also must take into account whether someone has a special vulnerability, like a disability. Finally, when setting a bond amount, ICE must consider the person’s financial circumstance.

The settlement also requires that all officers complete documentation reflecting their assessment of each individual and to undergo training on the terms of the settlement. ICE officers must also provide a form advising individuals of their rights. Counsel in the case will regularly receive reporting to monitor ICE’s compliance.

The NYCLU uncovered ICE’s no-release policy as the result of a Freedom of Information Act (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 had all but eliminated bond or release for people awaiting immigration hearings. From 2013 to June 2017, approximately 47 percent of those deemed to be low risk by the government had been granted release. From June 2017 to September 2019, that figure plummeted to four percent.

Counsel in the case include Amy Belsher, Bobby Hodgson, Christopher Dunn, Guadalupe Victoria Aguirre, Terry Ding, Claire Molholm, and Lourdes Chavez of the New York Civil Liberties Union; and Niji Jain, Jenn Rolnick Borchetta, and Kshithij Shrinath of The Bronx Defenders.

You can find settlement materials here.