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Varick Street Detention Facility, Manhattan,
New York
November 2, 2009 New York Times
A startling petition arrived at the New York City Bar Association in
October 2008, signed by 100 men, all locked up without criminal charges in
the middle of Manhattan. In vivid if flawed English, it described cramped,
filthy quarters where dire medical needs were ignored and hungry prisoners
were put to work for $1 a day. The petitioners were among 250 detainees
imprisoned in an immigration jail that few New Yorkers know exists. Above a
post office, on the fourth floor of a federal office building in Greenwich
Village, the Varick Street Detention Facility
takes in 11,000 men a year, most of them longtime New Yorkers facing
deportation without a lawyer. Galvanized by the petition, the bar
association sent volunteers into the jail to offer legal counsel to
detainees — a strategy the Obama administration has embraced as it tries to
fix the entire detention system. “Immigration and Customs Enforcement
considers the access to legal services at Varick
Street as a good model,” said Sean Smith, a spokesman for Janet Napolitano,
secretary of homeland security, who oversees immigration enforcement. But
the lawyers doing the work have reached a different conclusion, after
finding that most detainees with a legal claim to stay in the United States
are routinely transferred to more remote jails before they can be helped.
The lawyers say their effort has laid bare the fundamental unfairness of a
system where immigrant detainees, unlike criminal defendants, can be held
without legal representation and moved from state to state without notice.
In a report to be issued on Monday, the association’s City Bar Justice
Center is calling for all immigrant detainees to be provided with counsel.
And an article to be published this month in The Fordham Law Review treats
the Varick jail as a case study in the systemic
barriers to legal representation. The new focus on Varick
highlights the conflict between two forces: the administration’s plans to
revamp detention, and current policies that feed the flow of detainees
through the system as it is now. A disjointed mix of county jails and
privately run prisons, where mistreatment and medical neglect have been
widely documented, the detention network churns roughly 400,000 detainees
through 32,000 beds each year. “Any attempt to get support or services for
them is stymied because you don’t know where they’re going to end up,” said
Lynn M. Kelly, the director of the Justice Center. When she asked that the
lawyers’ letters of legal advice be forwarded to detainees who had been
transferred from Varick, she said the warden
balked, saying he had to consider the financial interests of his private
shareholders: 1,200 members of a central Alaskan tribe whose dividends are
linked to Varick’s profits under a $79 million,
three-year federal contract. Federal officials would not discuss their
transfer policies, but asked for patience as they try to make the detention
system more humane and cost-effective. “We inherited an inadequate
detention system from the previous administration that does not meet ICE’s
current priorities or needs,” said Matthew Chandler, a Homeland Security
spokesman. Officials say they are committed to a complete overhaul,
including less-penal detention centers with better access to lawyers. The
volunteer lawyers and the petition’s author, an ailing refugee from torture
in Romania who spent eight months inside Varick,
say many problems persist there, though the added scrutiny has led to
improvements. Detainees who want a Gideon Bible no longer have to pay the
commissary $7. Immigration officials are more responsive when a lawyer
complains that a detainee in pain is not getting treatment. But most
detainees do not have a lawyer, and the few who do include men who have
fallen prey to incompetent or fraudulent practitioners. Recurrent
complaints include frigid temperatures, mildew and meals that leave
detainees hungry and willing to clean for $1 a day to pay for commissary
food. That wage is specified in the contract with the Alaskan company,
which budgeted 23,000 days of such work the first year, and collects a
daily rate of $227.68 for each detainee. The Alaska connection is one of
the stranger twists in the jail’s fitful history. Opened as a federal
immigration detention center in 1984, Varick
became chronically overcrowded after 1998, when new laws mandated the
detention of all noncitizens who had ever committed a crime on a list of
deportable offenses, expanded to include misdemeanors like drug possession.
A Dominican man there died of untreated pneumonia in 1999 — the first
reported death in the nationwide detention system, which now counts 106
since October 2003. The Varick facility, which is
on the corner of Houston Street, fell short of national detention standards
adopted in 2000, because it lacks any outdoor recreation space. But under a
grandfather clause, it was allowed to remain open until 9/11, when the
terror attack, blocks away, forced its evacuation. For years, it was
shuttered. It quietly reopened in February 2008, operated by Ahtna Technical Services Inc., a subsidiary of Ahtna Inc. — still with no access to fresh air. As an
Alaska Native corporation, Ahtna has won numerous
federal contracts without having to compete with other companies; last year
it paid its tribal shareholders about $500 each in dividends. It hires a
Texas subcontractor to supply guards and transportation, along with the
shackles and belly chains routinely used on detainees being moved in or
out. Varick’s population includes illegal
immigrants, asylum-seekers and legal immigrants who face deportation
because they have past criminal convictions. Almost half of those screened
by the volunteer lawyers have already been in detention for four to six
months, according to the bar association report, and nearly 40 percent have
legal grounds to contest deportation. A few, the report says, have a
possible claim to citizenship, which would make their detention unlawful.
But the volunteers, including lawyers from 16 corporate firms, say they can
offer only rudimentary legal triage to a handful of detainees a week. The
Department of Justice is asking Congress for money to expand the law
project, and Immigration and Customs Enforcement invites Washington
officials to visit the weekly triage sessions. The agency allowed a reporter
to observe a session, but not to tour the jail. On a recent Thursday, only
11 of 35 detainees who had signed up made it into one of five glassed-in
booths where they could consult with pairs of legal volunteers. One, a
25-year-old Mexican, had been delivering food for an Italian restaurant on
Madison Avenue until his detention. After a week in Varick,
the government had not served him with a “notice to appear” telling why he
was detained and setting the date and place where he would be heard by an
immigration judge. Volunteers were researching his case a week later when
he was transferred to Atlanta. It could just as easily have been Louisiana
or Texas, far from any free legal help, said Maria Navarro, a Legal Aid
lawyer who supervises the volunteers. Even in cities, she said, lawyers are
reluctant to represent detainees who may be suddenly moved far away.
Another 25-year-old, who had come to New York as a legal immigrant from
Belize at age 2, told lawyers he had worked at Kentucky Fried Chicken to
support his 5-year-old daughter, a citizen, when his sickle-cell anemia
permitted. After a standing huddle, the lawyers told him that because his
notice listed old convictions for possession of marijuana, he was
ineligible for release on bond or with an electronic monitoring bracelet. A
Haitian, who had served time for at least one drug-related offense, had a
lawyer but wanted a second opinion after being held in Varick
for 16 months. He described himself as a barber, interpreter and legal
resident of Brooklyn for 23 years. “It is double jeopardy,” he protested,
nursing a swollen jaw with teeth missing. “I become a diabetic here,
because of anxiety, stress and suicidal conditions.” Yet a detainee from
the former Soviet Union praised the jail. “Varick
is heaven” compared with some county jails in New Jersey (Bergen and
Monmouth) and Florida, he said, citing abuse by anti-immigrant guards. A
century-long line of Supreme Court decisions holds that immigration
detention is not a punishment or deprivation of liberty, and does not
require legal counsel for fundamental fairness. But Daniel I. Miller, 39,
the Romanian whose petition reached the bar association, said his own case
showed how high the stakes can be. Mr. Miller, a chef, fled his native land
in 1994 after the secret police mutilated him for advocating gay rights. In
New York, he had already been paroled for a criminal conviction — for
signing his partner’s name on a contract — when immigration authorities
detained him. To no avail, records show, his lawyer and an outraged doctor
at St. Vincent’s Hospital Manhattan urged his release from Varick for treatment of tumors on his liver. Instead,
he was transferred in April to the Orange County Jail in Goshen, N.Y.,
where he said he also circulated a petition. The authorities there accused
him of trying to start a riot and sent him to segregation with a murder
defendant. “These people have no rules, that’s the
main problem,” Mr. Miller said, speaking from the Midtown office where he
is starting an organic catering business. He credits his lawyer, Howard
Brill, for that turnaround: On Sept. 2, after almost a year in custody, an
immigration judge granted him the right to stay in the United States.
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