Especially inspiring about this lawsuit is that a detainee and immigration attorneys who are more used to playing defense than offense in the legal system prevailed. Their victory stands as an object lesson for thousands of other U.S. residents who are being illegally detained by law enforcement. Crucial here is that Mr. Harvey won these damages despite being deported as a criminal alien. In other words, the City of New York tacitly recognized that its guards cannot violate anyone's civil rights, even those of an alleged criminal alien. (Mr. Harvey, although presently in Barbados, does not concede the legality of his deportation.)
Under 8 CFR 287.7(d), jails are not allowed to hold someone awaiting transfer to ICE custody for more than 48 hours, not including weekends or holidays. But Rikers held Mr. Harvey for ICE 35 days in 2003 and in 2006 Rikers again held him for more than 48 hours. The jail's illegal deprivation of Mr. Harvey's liberty is, according to the complaint, part of a systemic practice in which the jail regularly ignores the immigration law and the due process rights of immigrants:
40. On information and belief, pursuant to this policy, NYC DOC frequently detains immigrants beyond the 48 hours authorized by 8 CFR 287.7(d)(3).
41. Mr. Harvey met other victims of this practice during the months he spent in ICE detention in 2007.
42. On information and belief, NYC DOC officials with final decision-making authority acquiesced in the decision to hold Mr. Harvey, with deliberate indifference toward. theresulting clear violation of his constitutional rights.
The text above is from the 18-page complaint filed on Mr. Harvey's behalf in October, 2008 by Alisa Wellek and Laura Trice, law school interns supervised by Professor Nancy Morawetz at New York University's Immigrant Rights Clinic.
The complaint contains many allegations that might trigger a lawsuit under 42 U.S.C §1983. (The statute allows people to sue those acting under color of law for violating their civil rights.) In this case, the underlying injury was the illegal and unconstitutional deprivation of Mr. Harvey's liberty, a serious example of government misconduct and in some cases felonious.
Keeping people locked up is supposed to hurt. That's the assumption of our current system of criminal incarceration. These harms may include the loss of employment, frayed family relations, and even medical complications from discontinued health treatments. Mr. Harvey's unlawful detention resulted in all of the above. He knows he is not alone, and has called for "outlawing the conspiracy between between New York City and ICE." Professor Peter Markowitz, who directs the Immigration Justice Clinic at the Benjamin Cardozo School of Law in New York City, characterized Mr. Harvey's experience as part of a larger pattern of illegal treatment of immigrant detainees in New York City custody – a pattern that has contributed to the unnecessary deportation of countless New Yorkers whose families are left behind.”
Keeping people locked up is supposed to hurt. That's the assumption of our current system of criminal incarceration. These harms may include the loss of employment, frayed family relations, and even medical complications from discontinued health treatments.
Mr. Harvey's unlawful detention resulted in all of the above. He knows he is not alone, and has called for "outlawing the conspiracy between between New York City and ICE."
Professor Peter Markowitz, who directs the Immigration Justice Clinic at the Benjamin Cardozo School of Law in New York City, characterized Mr. Harvey's experience as part of a larger pattern of illegal treatment of immigrant detainees in New York City custody – a pattern that has contributed to the unnecessary deportation of countless New Yorkers whose families are left behind.”
Actually, this is happening around the country, including in the DeKalb County Jail in Georgia. For instance, Oscar, who was deported in June to Mexico, also seems like he has a strong case to sue for the violation of his liberty interests. In a fact pattern that holds for thousands of deported US residents, Oscar was picked up by the local police on a pretextual arrest, held for two weeks, unlawfully deprived of visitation by his wife, and then shipped off to Georgia and deported to Mexico, where I met him in late June.
I spoke to Kimberly in July, on what turned out to be their wedding anniversary. She said, "He went to Court on Tuesday and the judge dropped all the charges. They wouldn’t let him out because ICE had a hold on him for 48 hours. When the 48 hours was up they put another hold on him. All they would tell me is that ICE had a hold on him. I would call back up there to see if they came and took him and they said they took another 48 hour hold on him. He was there for two weeks."
According to Professor Markowitz, there is no legal means for ICE to "renew" a hold, and yet jails routinely hold people for more than the 48 period legally allowed.
Linda, Kimberly's grandmother, isn't surprised, "That's the way the county is. They don't care. If they want to hold you for two weeks, they'll hold you for two weeks. This whole situation is terrible. The little girl is crying. They made the children here lose their father."
DEPORTED US RESIDENTS CAN SUE, TAXPAYERS LOSE
The biggest disappointment for Mr. Harvey, indeed for any resident of a country whose government wrenches them from their homes and families because of fantasies about nations, was that he was ultimately shipped off to Barbados in 2007. His lawsuit states that the deportation itself was largely due to the impact of detention on his ability to prepare his case--he was stuck in an ICE facility in Alabama.
Alisa Wellek, one of the NYU law students who submitted the complaint, said, "One of the huge takeaways is that localities are subject to litigation. ICE isn't paying for it. New York City is paying for it." Her hope is that as the word gets out, local jails, including Rikers, will stop illegally holding people.
One thought for immigration attorneys and activists going to detention centers: download the lawsuit here and do it yourself! And don't be afraid to show some spine. According to one source familiar with the negotiations, the City's initial offer was $1,500. It's hard not to infer that the City attorneys wanted to avoid a lawsuit not only because of the damages but because of what would be revealed in discovery, when the jail and ICE would be subject to subpoenas. In light of the widespread illegal practices elsewhere, this motive may not be unique to New York City.
(The New York City Law Department did not respond to a request for comment.)
Another thought for the Department of Justice: start charging the law enforcement agents who are illegally holding people with false arrest and kidnapping. The law is clear about how long people can be held. When US Attorneys or state prosecutors do not file charges, it imposes an enormous hardship on the law-abiding taxpayers who must foot the bill. Not only is a criminal sanction the only real deterrent for the ICE agents and jail guards who are violating the rights of US residents--the City of New York is paying the settlement, not the wardens--it is the appropriate response to the outrageous and cavalier treatment of people the government is supposed to protect, not persecute.