East Harlem — Following a wave of activism protesting interrogations of immigrant detainees at Rikers Island, the city Department of Correction has implemented new practices to better respect the rights of people who are held because they have been arrested and await trial. Like other pre-trial detainees, immigrants are presumed innocent of their charges, but if they are found to be undocumented while being held, it's a comparatively quick trip to deportation.

For months, immigrant advocates have been turning up the heat on the Department of Correction for allegedly allowing federal Immigration and Customs Enforcement (ICE) to use Rikers Island city jail as a convenient place to crack down on illegal immigrants – even though detainees are not there because of their immigration status.

Organizations such as the New Sanctuary Coalition, an immigration policy reform group, argued that the practice often leads to their deportation and inability to receive a fair trial. In response, DOC began last month to give detainees interview
consent forms before they speak with ICE.

The form gives the option to check one of three boxes before the interview, which is aimed at ascertaining if they are undocumented: wait to do it until a lawyer is present, conduct it without a lawyer, or skip the interview all together. Prisoners sign them in the presence of an intake officer. The DOC does not have data on how many have been handed to prisoners.

"I expect that advocates have given us high marks for our approach, cooperation and making good on our commitments," said DOC spokesman Stephen Morello. He notes that the DOC has also trained staff in how to inform prisoners of their rights, posted multilingual signs about those rights in jails and recently began insisting that ICE officials conduct interviews in uniform, so that prisoners are aware that they are speaking to an enforcement officer.

But some immigrant advocates say that their battle is far from over.

"The consent form is an improvement from blatantly deceptive interviews," Nancy Morawetz, a clinical law professor at New York University who teaches the Immigrant Rights Clinic, wrote in an e-mail. "But the fact remains that a system that sweeps in immigrants based merely on an arrest or a minor conviction, and then allows them to be detained and transferred to areas without meaningful access to counsel is fundamentally flawed. The city should not facilitate such a system."

The indignation of immigrant advocates comes largely from the mixed signals sent by the conduct of everyday life in America. Despite the official status of illegal immigrants as unwanted – with organizations such as the conservative Heritage Foundation arguing that amnesty for illegal immigrants would significantly cost the government – the fact that they make up an estimated 5 percent of the total U.S. workforce tells a different story. These workers also contribute an estimated $7 billion to Social Security through payroll taxes, according to the Center for American Progress, a progressive think tank in Washington, which says "we have at the very least implicitly invited these individuals in."

Therefore, says Udi Ofer, advocacy director for the New York Civil Liberties Union: "Someone should not be punished for what could be an arrest mistake."

Over the past five years, 13,000 New York City residents have been placed in deportation proceedings, two-thirds of whom were pre-trial detainees, according to the NYCLU. An executive order signed by Mayor Bloomberg in 2003 states that no immigrants seeking city services will be asked their status. But those suspected of any crime, even as small as hopping a Metro turnstile, can legally be interrogated about their background – just as anyone stopped by police can be asked to present identification. Police and the DOC must furthermore "cooperate with federal authorities in investigating and apprehending aliens suspected of criminal activity," Executive Order 41 states.

Many Rikers detainees are arrested on minor charges or later found to be not guilty, according to the New Sanctuary Coalition, which received the information from a Freedom of Information Act request. Each year around 4,000 Rikers inmates, 3,000 of whom are pre-trial detainees, are interrogated by the ICE. That's from a total of 105,000 jailed annually. Immigration authorities then put a hold on about 3,200 prisoners, sending them to detention centers as far away as Texas before they can finish their term, even when the criminal charges they face are dropped.

One member of Make the Road New York – another group working for changes to DOC and ICE policy – says her brother-in-law was just deported back to Colombia two weeks ago. Florentina, who did not want to give her last name, said in Spanish that he landed on Rikers Island on sexual abuse charges, for which he was found not guilty after he was transferred from Rikers Island to a prison in Texas.

But Make the Road had trouble tracking his whereabouts in order to provide a lawyer. "Both a lack of communication and being isolated made it hard to get him legal help," said Daniel Coates, the civil rights and immigration organizer at Make the Road. Coates claims that ICE often moves prisoners from jail to jail, often in remote locations.

ICE, for its part, had little to say about its current practices. Asked for comment, Public Affairs Officer Lou Martinez referred to the ICE Detention and Removal Office website, which states that the organization "is committed to enforcing our nation’s immigration laws in a fair, effective, and professional manner."

Secure communities?

ICE's Rikers program is part of a larger federal effort aimed at identifying and deporting immigrants held in local jails. Known as "Secure Communities," the program was jumpstarted by the Bush Administration and expanded under Obama. It now operates in about 70 counties, and gives local authorities leeway to check fingerprints at local jails.

Recently the New Sanctuary Coalition has been meeting with someone both knowledgeable about and well-placed to impact the issues at hand: Dora Schriro, the new DOC commissioner, who came to New York from an Obama administration post specifically aimed at reforming the nation's system of pre-deportation detention.

Angad Bhalla, a New Sanctuary member, said Schriro seemed "very open and honest" in hearing from activists about recommendations such as barring DOC's daily sharing of prisoner information with ICE. The DOC does not solicit detainees' immigration status. However, information about a prisoner's country of birth is available online in DOC's publicly accessible inmate database. Bhalla said that providing this information to ICE makes it easier for the organization to keep tabs on who's who.

Now, an umbrella organization called East Harlem Against Deportation – and supporters like State Sen. Jose M. Serrano – is urging DOC, through a report, to further restrict ICE access to pre-trial detainees and to bar the sharing of fingerprint data with the U.S. Department of Homeland Security. Make the Road is calling for City Council legislation to do the same thing, completely restricting ICE, which reportedly has free office space at Rikers, from access to pre-trial detainees.

Speaking at the East Harlem Against Deportation press conference in September, local Councilwoman Melissa Mark-Viverito said, "We also have to make a demand of our mayor to say that we don't accept that kind of enforcement, or meddling, in our correctional institutions."

Working with the Children's Aid Society, East Harlem Against Deportation gathered 1,000 letters over the past six months urging President Obama to put a halt on the detention and deportation of illegal immigrants. Between 1998 and 2007, over 100,000 parents of U.S. citizens were deported from the U.S., according to a 2009 report by the Department of Homeland Security.

(Editor's Note: This article was updated on November 11 to reflect factual information mistakenly omitted from the first published version.)

- Rachel Stern