Advocates for undocumented immigrants decry ICE efforts at courts

NEW HAVEN — The word went out to advocates that two federal Immigration and Customs Enforcement officials were waiting inside Superior Court on Elm Street.

Their dilemma this week was whether to advise their friend, who had a court date for traffic violations, to skip his court appearance and risk an arrest warrant or go to court and risk an ICE encounter that could lead to his deportation.

The other issue was the presentation of a detainer request to the court by ICE to hold another undocumented immigrant who was being sentenced that day, versus presenting a judicial warrant signed by a judge.

About 15 people hurried to the court on Thursday to be a witness for Jesarel Calixto, who was appearing to answer charges of illegal operation of a motor vehicle while his license was under suspension.

They deliberated for a while, weighing the pros and cons, before Calixto went to his hearing, which was continued.

Vanessa Suarez of Unidad Latina en Accion, who was in the courthouse Thursday morning, said the problem is undocumented persons will not feel they can use the courts or report there when required to do so if ICE agents are present.

This is particularly problematic for witnesses to a crime or women seeking restraining orders in domestic violence cases. Suarez said the housing court is in the same building, which discourages the undocumented from using that facility.

“You are breaking any kind of relationship that has been established with the community,” Suarez said.

The Connecticut Trust Act directs persons working for the Department of Correction, local and state police departments, as well as judicial marshals, not to detain a person based on an immigration detainer, which are also known as administrative warrants.

A proposal this year to amend the Trust Act by specifically requiring a judicial warrant to hold someone sought by ICE, did not get out of the Judiciary Committee.

The agents were in the courthouse looking for Edilberto Ortega, who was being sentenced for risk of injury to a minor.

Ortega was given a sentence of 7 years, suspended after six months, with five years’ probation and sent back to the Whalley Avenue Correctional Facility to finish his incarceration after spending five months there awaiting his trial.

John Mohan, the regional spokesman for ICE, said Ortega had ignored a final order of deportation to Mexico. He said the agents presented a detainer request to the court that he be handed over to ICE.

“Upon completion of the sentence he received for his state criminal conviction he will be turned over to ICE,” Mohan said in an email.

Supervisory Assistant State’s Attorney David Strollo said when ICE presented the document to the court for Ortega he did not feel he could dismiss it.

“I’m a lawyer. It would be an ethical violation for me not to comply with an order of the federal authorities,” Strollo said.

“We only act when there is an actual want. ... Actual want is something official that shows up on a record check or by their coming here and showing us a warrant,” Strollo said. “On the paper it says you have the authority to arrest or take into custody this person. My understanding of that is it’s an arrest warrant. It says arrest warrant.”

Michael Wishnie, a professor at the Yale Law School who also runs the Worker & Immigrant Rights Advocacy Clinic there, said officials are not required to comply with a detainer, which is discretionary. This is different from a judicial warrant, which is based on evidence presented to a judge.

There also have been cases in which the courts have ruled that holding someone on a detainer is illegal, Wishnie has said.

Strollo said “scores” of undocumented persons come to the court daily.

“We don’t call INS (Immigration and Naturalization Service) to say someone is here illegally ... unless there is an official demand for that person. We don’t ever call cold,” Strollo said.

Kevin Kane, Connecticut’s chief state’s attorney, said he has sent out memos to the courthouses about the Trust Act, but maybe he needs to send more.

As for answering a detainer request, Kane said the prosecutors have discretion on this issue.

Kane did not think there were many instances of ICE presenting detainer requests in the courthouses.

A study done by the Connecticut Immigrant Rights Alliance, however, found that in 2017, ICE sent out 321 detainer requests with 130 sent to the couthouses. This resulted in 52 persons being held, 40 of them detained improperly.

They said they were improper because they did not fall into the categories that are an exception to the rule.

A detainer is sufficient if the person being detained is a felon; is subject to pending criminal charges in Connecticut where bond has not been posted; had an outstanding arrest warrant in the state; is a gang member; is a terrorist; or is subject to a final order of deportation.

The courthouses with the highest ICE arrest rates are Waterbury, Danbury and Hartford, according to CIRA.

Proponents of the bill to strengthen the Trust Act said it did a better job of defining everyone’s responsibilities.

Kane said the state’s policy is to not make people afraid to use the courthouses.

Connecticut’s Chief Justice Chase T. Rogers had asked the Trump administration to view courthouses as “sensitive locations” and not allow ICE to take custody of individuals in the public areas of these facilities.

“I believe that having ICE officers detain individuals in public areas of our courthouses may cause litigants, witnesses and interested parties to view our courthouses as places to avoid, rather than as institutions of fair and impartial justice,” Rogers wrote.

ICE has said it makes arrests in courthouses because it is an easy place to find a person and a safe place as everyone there has to pass through metal detectors. A spokesman said they are not in the courthouses on random roundups and try to be discreet when they make an arrest.

Wishnie said the Department of Correction limits detainer compliance to 2.5 instances out of the 7 listed in Connecticut statutes.

He said he and the students in his law clinic have asked that the judicial branch, including the marshals, cease enforcing any ICE detainer request, unless accompanied by a judicial warrant or “at a minimum, to enforce only those detainers enforced by the DOC.”

This would limit the detainers to persons with prior violent felony convictions; persons identified as a possible match in a terrorist screening database; persons subject to a final order of deportation or removal accompanied by a judicial warrant.

Wishnie has asked that the judicial branch issue guidelines to staff that detainer requests be sent to a designated official. If ICE agents are seen in or around the courthouse, he recommends this be reported to the state’s attorney and the public defender’s offices.

Kane said he has had conversations with Wishnie and found many of his suggestions to be good ideas.

Any amendment of the Trust Act, however, will have to wait until next year as the legislative session is drawing to a close.

mary.oleary@hearstmediact.com; 203-641-2577