At 6 a.m. on a Saturday in August of 2015, Tony and Tracy Chen woke up to knocks on the front door of their Brooklyn apartment. Tony fumbled down the stairs to find three ICE officers. “Are you Mr. Chen?” one asked. “Get dressed and come with us. We need you to sign some papers at immigration court.”
Tony, 46, was a lawful permanent resident, which means he has a green card; his wife, Tracy, and their three children are U.S. citizens. As Tony changed out of his pajamas in a corner of the living room, Tracy pleaded with the officers. “What did he do wrong? Where are you taking him?”
“Don’t worry,” an officer said as he handcuffed her husband. “Give him $20 for the subway. He’ll be home soon.”
Tony was gone for over eight months.
Tony was arrested more than a year before the President Trump executive action that could spur an era of increased deportation. But for years, ICE has been arresting green-card holders like Tony with nonviolent criminal records and warehousing them in detention facilities without bond hearings. Now the Supreme Court is about to decide whether this practice violates due-process rights guaranteed by the Constitution. The case is Jennings v. Rodriguez, and the plaintiffs are represented by the American Civil Liberties Union.
If the Court upholds a lower court’s decision and rules in favor of the ACLU, it will require the government to give detainees a bond hearing within six months of detention. In a bond hearing, a judge can decide that a detainee is at “low flight risk and not a danger” and grant release, allowing him to return to family and work while his case is pending. If the Court rules against the ACLU, prolonged detention of immigrants will continue and, under Trump’s immigrant crackdown, likely grow to an unprecedented level.
Tony and Tracy moved to New York City from Guangzhou nearly twenty years ago. At first, life unfolded as they had hoped. Tony opened a shipping store and Tracy focused on raising their three children. But as Tony’s business profits grew, he began gambling with clients in Atlantic City. One night, he gambled $500 and won $80,000 within an hour. “I felt so lucky, I started going two times a week. I couldn’t focus on my business. Every second I had money in my pocket, I wondered if I should call a cab and go to New Jersey.”
In 2007, Tony quit gambling with the help of a therapist, but his problems didn’t end there. In 2010, police arrested Tony because boxes sent from China to his shipping business contained counterfeit jewelry and purses. He was also charged with welfare fraud for underreporting household income and receiving Medicaid. Tony pleaded guilty to counterfeit and fraud — both felonies — and received five years’ probation. At the height of his gambling luck and business profits, Tony was rich. By 2010, he was destitute and ashamed.
Over the next five years, Tony paid fines and followed probation rules. Some nights he came home early enough to cook red-seared pork or salmon with star anise and ginger. Despite financial troubles, Tracy says “there was a lot of joy and laughter in our family.”
After completing probation in April 2015, Tony traveled to Toronto for his nephew’s graduation. On his way home, airport customs officers warned him.
“They said there was a problem with my green card,” Tony remembers. “I was shocked.”
When ICE arrested Tony later that summer, he was brought to a section of the Bergen County Jail in New Jersey nicknamed Chinatown for its Chinese detainees. ICE contracts with places like Bergen, which it pays an estimated $200 a night for a detainee to stay in a wing that advocates say has worse conditions than most prisons.
Immigration lawyers asked for $50,000 to take on Tony’s case. “I’m not sure your father stands a chance,” Tracy warned her kids. The next week, they visited Tony. They found him on the other side of a glass partition, wearing an orange jumpsuit, weeping.
“I don’t want you to bring the kids to visit,” Tony told Tracy. “It’s too painful for them to see me like this.”
“No,” Tracy replied. “Your whole family is here for you.”
As he struggled to make sense of his situation, Tony met other green-card holders whose criminal cases had long been resolved — paid for in probation, fines, or prison time. Some, like Tony, had been rearrested after traveling internationally. A law designated them “arriving aliens” because of their criminal record. This, Tony learned from other detainees, triggered deportation proceedings. Some planned to represent themselves at their hearings, to hasten deportation. At least that way they could work in their home country and send money to family in New York. Tony feared he might have to do the same.
On September 16, guards awoke Tony at 2 a.m. and announced he was headed for the Varick Street courthouse in Manhattan. Tony saw other detainees pulling extra socks over their feet and hands. That was the Varick uniform, meant to protect against the bone-chilling cold of the courthouse waiting room.
Tony planned to represent himself, but at Varick, he met Zoey Jones, an attorney with Brooklyn Defender Services. BDS is part of the New York Immigrant Family Unity Project (NYIFUP), which provides free representation to detainees whose household income is less than 200 percent of the national poverty level. Tony qualified.
With the prospect of a drawn-out case, Tony entered the conundrum at the heart of Jennings v. Rodriguez: whether he was entitled to a bond hearing. Michael Tan, an ACLU lawyer, says: “Most people would be shocked to know that we have a prison system in America where the government can lock you up without the right to see a judge who can determine whether you should be locked up in the first place.”
As studies by the ACLU have found, the majority of detainees given a bond hearing are deemed not to pose a flight risk and are allowed to leave detention. Many ultimately win their claim to remain in the U.S., which supports the ACLU’s argument that denial of bond hearings disproportionately affects immigrants, like Tony, with strong cases.
New York’s immigration court backlog is infamous. It can take years to resolve an immigration case, even longer when a case is appealed. Without the possibility of a bond hearing, more immigrants will stay locked up during this process. Jones, Tony’s lawyer, works on dozens of these cases. She was struck by Tony’s sweetness and his family’s desperation. “His case epitomizes the immigration system’s tendency to punish someone indefinitely for something he’s already paid for….What possible purpose does it serve to detain him while we litigate? It’s punitive, and it’s destructive to his family.”
For Tony, punishment took many forms. Detainees kept their belongings on rugs they constructed from plastic bags and ate each meal seated on their beds. Breakfast consisted of dry cereal, pancakes, and a choice of soda or coffee. Rice came once a week; chicken every two weeks. Detainees protested with a hunger strike, but guards said they had no control over the food. Tony lost thirty pounds.
For a dollar a day, Tony started cleaning toilets and floors. A buck twenty-five bought a cup of instant noodles, which could be traded for a haircut; three bought a chicken wing from another detainee’s dinner. With two AA batteries, Tony got an extra blanket.
Tracy started working three jobs, one in a daycare center with kids from single-parent homes. “Most of them are broken,” she says, “and the children really suffer.” Now she was a single parent herself, and the fractures she had witnessed in her clients’ lives began showing up in her own.
The teacher of her eleven-year-old daughter, Kelly, called to say Kelly was no longer doing her homework and had begun making macabre drawings of dead people. Tracy worked thirteen hours a day but couldn’t afford their monthly expenses. Ji Ming, the oldest son, grew evasive and started smoking marijuana.
Every week at Bergen, a fight or mental breakdown sent someone into solitary confinement. Tracy sent Tony tai chi instructions to calm his nerves, and they spoke on the phone daily. Jones filed petitions for a bond hearing for Tony, but a judge denied them. So Jones filed a habeas corpus petition in federal court. (Few detainees can afford an attorney with the time and resources to do this, though the U.S. government argues that establishing a right to a bond hearing in six months is excessive, because detainees can access their right to due process through habeas corpus.) On April 6, 2016, Tony was released on bond.
Tony’s deportation hearing is scheduled for January 2018. Were it not for a free attorney from NYIFUP, Tony might be waiting in Bergen until then. Mayor de Blasio has proposed limiting NYIFUP, saying the city should no longer provide free counsel to detainees convicted of a list of 170 offenses ranging from murder to minor burglary. In some ways, Tony was lucky, and the fragility of his status shadows his daily life.
“It feels like the whole family is still paying for a conviction that Tony repaid to society years ago,” Tracy said.
Their son Ji Ming, now a high school senior, joined the Army. “This family will have one less mouth to feed,” he explained, and the Army will pay college tuition that his parents can’t afford.
Old business partners offered Tony the chance to open a restaurant, but he worries about getting deported after making an investment. “It’s like a time bomb,” he says, “and you don’t know when it will go off.”
And the situation only became more volatile after January 25, when Trump outlined plans to redefine priorities for deportation. There are an estimated 42,000 immigrants in detention now, and a study by the Los Angeles Times estimated that if authorities were to follow Trump’s new criteria, 8 million immigrants would become a priority for deportation. If the Supreme Court rules against Jennings, many will languish in detention centers without due process.
On a Sunday when Tony was at a restaurant job, Tracy, the kids, and her parents gathered in their living room to stuff shrimp and pork dumplings. Tracy’s mother murmured approvingly as her granddaughters folded dough. The family began to discuss the topic that’s usually too painful to broach: what they would do if Tony were deported.
“Let’s say your father goes back to his country of origin,” Ji Ming said, “and you only see him on a computer screen — that’s going to kill you, right?”
Tracy stroked her daughters’ hair and glanced at her mother, who had spent decades trying to leave the country that Tony might be sent back to. “Technology is awesome, but it’s not real,” she worried. “You can’t hug, you can’t kiss.”
When Tony was first in detention, the children imagined joining him in China if he were deported. But Tracy said it was impossible. “We can’t go back. You don’t read Chinese, and you can hardly speak it.” Neither daughter has Chinese citizenship; they would be foreigners there, without access to government services or publicly funded schools.
“No,” Tracy said. “We’ll stay here. We’ll fight to keep our family together.” She gestured around the table. “We’re all citizens here.”