This story originally appeared on NJ Spotlight.
Advocates have long called for agreements that allowed federal immigration detainees to be held in New Jersey to end.
In recent months, their efforts seemed to be paying off.
The Bergen County jail has limited how many U.S. Immigration and Customs Enforcement detainees it receives and housed only 38 on Wednesday. Over in Hudson County, some officials have said they want to get out of their ICE agreement and have capped the number of detainees at the Kearny jail at 50. And Essex County will end its practice of housing ICE detainees at the Newark jail next month.
State lawmakers have also approved a bill that would bar any future agreements, or the renewal or expansion of existing ones. That bill awaits Gov. Phil Murphy’s signature.
But a consequence of those efforts has been the transfer of ICE detainees held in Essex County to other states where they are far from their attorneys and families. Last week, around 50 were transferred from the Essex County jail to Georgia, Massachusetts and Nevada.
Federal court lets transfers proceed
The moves, many occurring in the early morning hours without warning, led the American Civil Liberties Union and others to file suit to stop the transfers. But on Friday, a federal court judge denied a temporary restraining order that would have blocked ICE from moving the detainees from the Essex County jail to other states.
In his ruling, U.S. District Judge John Michael Vazquez in Newark said ICE has until Aug. 23 to move its detainees from Essex County jail after officials there told them they were phasing out of their agreement. He said that ICE had taken steps to find closer detention centers, including at Bergen, Hudson, and a private detention center in Elizabeth, as well as sites in New York and Pennsylvania, to no avail.
“ICE did take constitutionally adequate steps by looking initially in the area, and what they are finding is that, unfortunately, going back to the birth of Jesus is that there is no room at the inn at this time,’’ Vazquez said.
Further, the judge said, there was no evidence that the federal agency tried to interfere with the client-attorney relationship as the organizations that filed the lawsuit claimed.
“ICE has to transfer folks, and they have discretion to transfer, and I don’t find that the way they are exercising this discretion at this time is constitutionally deficient,’’ Vazquez said.
Legal team for detainees
The case was brought by the national American Civil Liberties Union, the ACLU of New Jersey, and the National Immigration Project of the National Lawyers Guild on behalf of ICE detainees at the facility who are facing transfer.
My Khanh Ngo, staff attorney with the ACLU’s Immigrants’ Rights Project, said the decision was wrong and that they were in the process of deciding next steps.
“The government is continuing to transfer immigrants away from their counsel and their communities not only in New Jersey, but in Pennsylvania and elsewhere in the country,’’ Ngo said. “Most of these individuals should not be detained in the first place. Moving them far away to locations where they cannot communicate with their counsel, and far from their community and family, is even more unacceptable and highlights the costs people suffer when the government prioritizes detention above all other options.”
The lawsuit was filed last week hours after ICE transferred more than 30 detainees from the Essex County jail. Those transfers were followed by another 16 the following day. Another six detainees were moved out this week, leaving 54 at the jail on Wednesday, according to Phil Alagia, chief of staff in Essex County.
ICE tries to find alternative sites
Vazquez said in his ruling that based on information ICE submitted to the court the Bergen County jail was not accepting detainees and Hudson County was taking some on a limited basis. He said the Elizabeth detention center, which is run by private prison company CoreCivic Inc., houses detainees who are classified as low risk, and therefore the Essex County detainees could not be moved there.
ICE also looked at the Orange County Correctional Facility in Goshen, New York, as a possible site, but Vazquez said the jail was not taking any detainees from New Jersey. He added that ICE also looked at the York County Prison, which takes detainees from the federal agency’s Philadelphia Field Office, but that site is shutting down next month.
While immigration officials generally have broad discretion to decide whether to detain people while they await resolution of their immigration cases, federal immigration law requires those charged or convicted of crimes involving moral turpitude, drugs, aggravated felonies and membership in a terrorist organization to be detained.
When President Joe Biden assumed office in January, the acting secretary of the Department of Homeland Security issued a memo on new immigration enforcement priorities that directed ICE to limit arrests and detainment of individuals who pose a threat to national security, border security and public safety.
Since then, advocates in New Jersey and around the country have accused ICE of not following those guidelines. Advocates who have been pushing for the release of ICE detainees in New Jersey stress that living in the United States without proper authorization is a civil violation, and not a criminal offense. Jordan Weiner, detention attorney for American Friends Service Committee, said many people held by ICE have either completed their criminal sentences, or been charged with a criminal offense, and later allowed to post bail for release before ICE takes custody of them. She said if the criminal justice system has released them that should be enough for them to be able to wait at home for their immigration case to be completed.
“The criminal justice system is more qualified than ICE to determine whether someone is a threat to public safety, and if the criminal justice system had this person finish their sentence or decided to release this person pre-trial on bail, I think they are more qualified to say if this person should be walking around,’’ she said.
Transfers are part of ICE’s routine detention management, according to John Sandweg, former acting director of ICE under the Obama administration. He said under the Obama administration they restricted certain types of transfers, including those that were “bureaucratic convenience” or for “cost.” He said they recognized how disruptive transfers were for those detained.
“Unfortunately, when you say ‘Hey I don’t want any detention facilities in New Jersey,’ what the inadvertent consequence of that could be is that it forces the agency to take people who are priority for detention, or who meet the public-safety criteria and you end up moving them far from their support groups or family members, so there could be some negative consequences around that,’’ he said “I don’t disagree with advocates, and I think we need to take a hard look in this country on how we use immigration detention.”
He said when ICE transfers individuals it looks at several things, including the cost of the bed space to the agency and where beds are available.
He said ICE has other tools at its disposal, such as electronic-monitoring devices that could allow immigration authorities to supervise individuals and ensure they attend their immigration hearings without having to detain them.