Yesterday, Gov. Kathy Hochul, New York City Mayor Zohran Mamdani and state Attorney General Letitia James — flanked by what seemed like a good tenth of the state Legislature — announced that the state was allocating $7.25 million to a consortium of legal providers led by the Hispanic Federation to provide legal services to unaccompanied children fighting deportation.
This is necessary in part because immigration proceedings are civil, not criminal. The famous right to have a lawyer that you’ve seen a hundred times in movies and TV is rooted in the Sixth Amendment, i.e., in the criminal context. So despite the heavy consequences of an immigration adjudication, people in immigration cases are entitled to be represented by a lawyer of their choosing, but not to have one appointed for them if they haven’t found or can’t afford one.
That’s true for all immigrants, but federal law separately directs the U.S. government to at least try to make sure that children with no guardians do get representation. A provision of the Immigration and Nationality Act says the government should “ensure, to the greatest extent practicable … that all unaccompanied alien children who are or have been in the custody of the [federal government] … have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation and trafficking,” with a few caveats. As a result, for decades the government has allocated funds to pay some seasoned legal providers to take on these cases, though plenty of children have still gone unrepresented in immigration court.
President Donald Trump’s team, unsurprisingly, tried to use these contracts as a cudgel in its sweeping immigration crackdown. First it demanded that these lawyers turn over privileged information on the children they were representing. When the lawyers refused, the administration abruptly stopped paying them and let the contract expire at the end of last month. The administration then announced it would award a no-bid $158 million contract to Our Rescue, a nonprofit that says its goal is to rescue victims of human trafficking operations. The group has been the subject of several exposés about its misconduct and fabrications and its founder was removed from the group after allegations of sexual misconduct were made against him, charges he denied.
New York’s move is aimed at ensuring that these children continue to have appropriate legal representation.
I don’t at all want to minimize the impact of this funding, without which children would have to face the hell of removal proceedings alone and almost certainly be ordered deported, as is the overwhelming result when minors go to immigration court alone. It’s impressive that the state responded so quickly to this situation, something that I hear is related to Hochul’s personal disgust with the administration’s record of mistreatment of children in particular.
Still, let’s be clear-eyed about what this represents, which is an effort by the state to maintain the status quo. The press conference was billed as an announcement on “standing up to federal ICE overreach,” and I went down to Hochul’s office in Lower Manhattan with the expectation that we’d be hearing something more – about really moving the ball forward on constraining the federal government’s ability to operate freely in what has become routine defiance of the Constitution, of public order, of basic principles of due process and equal protection. This was not exactly that.
What was at least closer was a series of legislative steps that this trifecta of top New York officials touted, all of which had become state law when the state budget was passed in May. In one of the measures, the state banned so-called 287(g) agreements under which local law enforcement entities sign on to be essentially deputized as federal immigration agents, while also banning contracts that permitted ICE to hold some of its detainees in local jails. A third measure banned masks for law enforcement officers, though that provision was put on hold by a federal judge. The fourth created what’s known as a state cause of action that gives individuals a path under state law for suing federal agents for constitutional violations (a push I wrote about in far greater detail for Bolts). Present at the press conference was Linda Wolff, a woman who was maced by an ICE agent as she was attempting to film an operation in Inwood; she said she would use this new provision in state law to hold the agents accountable.
None of those laws are a new announcement, though. And what was actually announced yesterday has very little to do with constraining overreach by ICE. But I think there’s a real appetite for that. As a first order of business, New Yorkers are looking to see how the state actually deals with counties that have existing 287(g) agreements with ICE, some whose leaders say they won’t cancel them. Beyond that, though, we need to hear what exactly the plans are for dealing with both the specter of a major ICE operation in New York City in the style of the occupations of Chicago, Los Angeles or Minneapolis as well as the more routine violations of rights now happening on our city’s streets weekly.
There is one question that I’ve been asking over and over since the Trump administration decided to unleash its militarized federal agents on the streets of cities around the country: What will it take for a local official to say enough is enough and use their police powers to protect their constituents? Put another way, the measures that New York has deployed thus far are all civil — the legislation banning cooperation, the lawsuits against the Trump administration and now the new spending on lawyers. What about criminal prosecutions? What about arrests? I imagine that no mayor or governor would contemplate having their police force slap the cuffs on an ICE agent without a lot of fears about retaliation. But I fear that some of the consequences of inaction might be far worse.
