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$145,000 Settlement by New York City After Holding Immigration Detainee Beyond 48 Hours

by David M. Reutter

A $145,000 settlement by the New York City Department of Corrections (DOC) provides a new twist in the area of immigration law. The main allegation in the complaint was that the DOC had violated a detainee’s rights by holding him for Immigration and Customs Enforcement (ICE) beyond the allowable time limit.

Cecil Harvey was a permanent U.S. resident; in 2003, he was taken to the Rikers Island jail to await disposition of a misdemeanor offense. After the criminal court ordered his release, the DOC held him on an ICE detainer. On the day of his scheduled court appearance, which was 35 days later, Harvey was turned over to ICE.

He remained in ICE detention for over two years. Harvey was granted supervised release on March 16, 2006 and be-gan rebuilding his life. Unbeknownst to him, an arrest warrant had been issued on the misdemeanor charge, resulting in his arrest on September 2, 2006. That charge was dismissed on speedy trial grounds in December 2006.

ICE, however, had lodged another detainer. In late December, Harvey was again turned over to ICE and transferred to immigration detention in Alabama. Ultimately, he was deported to Barbados in October 2007. His detention at Rikers Island prevented him from presenting oral argument to the Second Circuit Court of Appeals, and his appeal was dis-missed after he filed a pro se brief.

The main thrust of Harvey’s subsequent federal lawsuit was that the DOC had a policy of holding immigration detainees under ICE detainers until ICE was ready to take them into custody. This violated 8 CFR § 287.7(d)(3), which only allows jails to hold someone awaiting transfer to ICE custody for 48 hours. Yet the DOC “frequently detains immigrants beyond the 48 hours authorized,” Harvey alleged.

He eventually obtained representation by Professor Nancy Morawetz and interns Alisa Wellek and Laura Trice at New York University’s Immigrant Rights Clinic. A $145,000 settlement with the DOC was reached on April 20, 2009.

This case represents an important victory and reveals a method to encourage jails to release people held on ICE de-tainers after 48 hours have expired. According to Professor Peter Markowit, director of the Immigration Justice Clinic at the Benjamin Cardozo School of Law in New York City, there is no legal means for ICE to “renew” a detainer. In situations where immigration detainees are held beyond 48 hours, the jail can be sued for violating federal law.
See: Harvey v. City of New York, U.S.D.C. (E.D. NY), Case No. 1:07-cv-00343-NG-LB.

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Related legal case

Harvey v. City of New York