Lowenstein Center for the Public Interest and Immigrant Advocates Request Immediate Rejection of Federal Policy Preventing Detained Noncitizens from Defending Themselves in New[...]

Legal Services of New Jersey (LSNJ), the Lowenstein Center for the Public Interest, and the Harvard Law School Crimmigration Clinic within the Harvard Immigration & Refugee Clinical Program filed a motion yesterday evening for injunctive relief, calling for the immediate rejection of an unconstitutional federal policy denying New Jerseyans virtual access to resolve criminal charges in New Jersey while they are being held by federal immigration authorities in a remote Pennsylvania detention center.

The latest action follows last month's class action filing by the advocates on the issue that resembles a Catch-22 situation.

The latest move targets anew a policy by the federal Immigration and Customs Enforcement agency (ICE) at the Moshannon Valley Processing Center in Phillipsburg, PA. The disputed policy prohibits detained individuals there from virtually appearing at criminal court hearings in New Jersey by barring access to Zoom, Microsoft Teams, or the telephone.

Instead, the policy requires detained individuals to navigate the criminal legal system in New Jersey and apply for writs for in-person production from the state criminal courts-frequently without counsel and without phone or video access to the applicable Garden State courts, and even when the involved court is operating only virtually. Under ICE's policy, State and municipal court authorities that issue such writs must then use often limited resources to transport people back-and-forth hundreds of miles across state lines to Moshannon. Courts therefore rarely issue orders for in-person production. As a result, most detained individuals with pending charges in New Jersey are prevented from appearing either virtually or in person at state-court criminal proceedings, and those very unresolved charges are then used by immigration authorities to deny release requests and prolong the detention of noncitizens, all at taxpayer expense.

An LSNJ attorney framed the issue by noting about one plaintiff's situation: "[He] cannot get released from detention until his case is resolved, and he also can't get his case resolved until he is released from detention. He cannot get a public defender to resolve the criminal cases that are keeping him detained without being produced for court and it looks like he can't get produced for court while detained…the cumulative policies here are generating a serious due process violation."

Josefina Doe, a plaintiff in the case, told the Court: "Resolving this issue is important not only for me, but also for all of those who are in the same position as me. Too many women here have to cry in silence because ICE will not let the courts listen to them."

The case, filed on behalf of the American Friends Service Committee's Immigrant Rights Program (AFSC IRP) and a class of individuals, names as defendants the U.S. Department of Homeland Security, ICE and various government officials. The motion for injunctive relief calls for immediate virtual access to the New Jersey court system and the end to an unlawful and unconstitutional policy that, as Alexandra Gonçalves Peña, the Legal Director at AFSC IRP, explains, "denies our clients their fundamental due process rights to respond to pending charges and significantly impairs their ability to effectively participate in their defense and secure their release from immigration detention."

The Lowenstein team includes Gavin J. Rooney, Naomi D. Barrowclough, Natalie J. Kraner, Alexander Shalom, Anish Patel, and Ruth Fong Zimmerman.

About Legal Services of New Jersey
Legal Services of New Jersey (LSNJ) coordinates the statewide Legal Services system, which provides free legal assistance to low-income New Jerseyans for their civil legal problems. Through its work, LSNJ strives to secure substantive and procedural justice for those living in poverty.

Legal Services embraces the vision of full access to essential civil legal aid for all economically disadvantaged people who cannot secure a lawyer on their own. This belief in the importance of legal assistance to indigent people stems from an underlying concern with fairness, and a conviction that important legal needs of individuals should be addressed.

About the Lowenstein Center for the Public Interest
From its founding, Lowenstein Sandler has been committed to advancing the public interest and serving communities in need. The Lowenstein Center for the Public Interest embodies this commitment, directing the firm's strong pro bono program and other forms of civic and philanthropic engagement. Through these efforts, the center addresses significant social problems and offers meaningful assistance to low-income and other marginalized people, along with the organizations that advocate for and support them. This work engages the full range of the firm's talents and reflects the core values that imbue all of the firm's efforts: to perform work of the highest quality in a manner that maximizes results for our clients and causes.

About the Harvard Law School Crimmigration Clinic within the Harvard Immigration & Refugee Clinical Program
The Crimmigration Clinic, which is a clinic within the Harvard Immigration & Refugee Clinical Program at Harvard Law School, represents individuals through litigation in administrative tribunals and federal district and appellate courts on a range of issues at the intersection of criminal law and immigration law. The Crimmigration Clinic teaches students litigation skills, including legal research, writing, and oral advocacy. Prior work has included advocacy and litigation relating to immigration detention, deportation, federalism, and constitutional rights.