October 23, 2017
Can an Undocumented Immigrant File a Personal Injury Lawsuit – Part II
By Jonathan Damashek
New York considers itself to be a sanctuary city. As The New Yorker explains, this means that New York City leaders, from Mayor Bill de Blasio on down, have pledged to protect their undocumented immigrants. Not surprisingly, the Trump administration is engaged in an ongoing “battle” with New York City and other sanctuary cities across the country, threatening to withdraw federal funds from any city that maintains this position. Nevertheless, the sanctuary cities are holding firm. In New York, law enforcement officers have been told to limit the amount of cooperation they give to ICE agents and not to volunteer any information they may have about people’s immigration status.
In addition, the New York City Council has been working diligently to bolster the city’s status as a preeminent sanctuary city. In April 2017 it held hearings on nine separate bills expanding protections not only for undocumented immigrants but also for Muslims and anyone who is gay, bisexual or transgender. At the same time, Mayor de Blasio set aside $16.4 million for New York legal services providers working with asylum seekers, people in detention, and minors coming into the city unaccompanied by an adult.
As far back as 2014, the City Council passed laws authorizing local law enforcement officials to hold ICE detainees only if the detainees had committed a serious or violent crime in the past five years. Even then, they can only hold detainees if a judge has issued a warrant for the person’s arrest and/or detention. A deputy in the NYPD reports that in the first four months of 2017, ICE issued 182 detainer requests as compared to only 72 requests in the previous year. None of these requests were honored by the NYPD.
Admittedly, these are scary times if you are an undocumented immigrant, whether in New York or anywhere across the nation. Local laws and policies are in a state of flux. In addition, ICE agents have become more aggressive, “lurking” in and around courthouses in order to pick up as many undocumented immigrants as possible. The Immigrant Defense Project reports that between January and April of this year, 17 ICE arrests were made at New York City courthouses as compared to only 19 during 2015 and 2016 combined. By far the largest number of arrests have occurred at criminal courts, although at least one occurred at the Kings County Family Court, the first time such a thing has ever happened in New York.
A survey conducted by the Immigrant Defense Project earlier this year found that between January and July, 75 percent of New York legal service providers reported that their clients are fearful of going to court because of the possibility of ICE officials arresting them. Fully 29 percent of their clients failed to appear in court due to fear of ICE.
Despite all the fear, however, Politco New York reported in August 2017 that both law enforcement and court officials say the problem of ICE agents in New York courthouses is not nearly as bad as people have been led to believe and certainly is not dire. A spokesman for the Office of Court Administration said that court officials have been closely monitoring and tracking ICE appearances at courthouses since February and have seen no noticeable impact on court appearances. The OCA is in complete agreement with other New Yorkers that courthouses are “protected” public places like schools, hospitals, churches and other venues which ICE is prohibited from entering.
Furthermore, the Immigrant Defense Project reports that ICE agents look for specific individuals as identified in “administrative warrants” signed by a supervisor rather than by a judge. They must confirm that the person is actually the person named in the “warrant” before they can detain that person.
Since ICE agents sometimes appear not only in courtrooms, but also in courthouse entrances, waiting areas, and hallways, the Immigrant Defense Project is advising attorneys on how to protect their undocumented immigrant clients, including the following ways:
- Minimizing the number of required court appearances
- Meeting their clients at their office or on a different floor of the courthouse instead of at the actual courtroom
- Communicating with their clients by text to coordinate the meeting time and location prior to the scheduled hearing or trial
Deportation and Removal Criteria
The New York City Bar advises that if you are an undocumented immigrant, you can be placed in deportation or removal status to be sent back to your home country under certain circumstances, including the following:
- If you have been convicted of a crime, particularly one involving drugs, firearms, domestic violence, or child abuse
- If you have been convicted of fleeing (running away) from an immigration checkpoint
- If you have been convicted of giving false information to immigration authorities
- If you gave false information in order to get immigration or other benefits
- If you violated the terms of your visa, green card, or any other immigration status
Even if ICE or other immigration authorities believe that you are deportable, however, you still have rights. You cannot be deported without having the opportunity to defend yourself in a court hearing.
Again, the vast majority of ICE arrests and detainments are of people appearing in criminal courts, not civil courts. If you are an undocumented immigrant wishing to file a personal injury lawsuit in a civil court, but fearful of doing so due to concerns about your immigration status, your best course of action is to contact an attorney experienced in both personal injury and immigration law. At Hecht Kleeger & Damashek, P.C., our attorneys are both. We are dedicated to providing the best possible representation to our clients, regardless of your immigration status.