ICE Is Using Prostitution Diversion Courts to Stalk Immigrants

One Friday morning in June, two Immigration and Customs Enforcement agents tried to conceal themselves in a courtroom vestibule, where a “No standing” sign was taped to the wall. Hidden from the view of everyone in Queens Criminal Court room AP8, the agents could see and faintly hear who was being called before the judge’s bench, including a 29-year-old Chinese woman who expected to have her case resolved that day. She had no idea ICE was there to arrest her.

The woman’s Legal Aid Society attorney learned of ICE’s plans from Queens Criminal Court Judge Toko Serita. The judge was under no obligation to share this information; Legal Aid Criminal Defense Practice attorney-in-charge Tina Luongo later said at a City Council hearing that by doing so, the judge “probably broke a rule.” The woman’s attorneys had to act quickly: After Judge Serita called her case, the woman would be fair game for ICE. The public defenders made the desperate decision to ask the judge to set bail in her case, and through a Mandarin interpreter they explained the situation. In the custody of a city court or in jail, it would be much harder for ICE to arrest her. Minutes later, the woman was taken into custody by court officers. Kate Mogulescu, the Criminal Defense Practice supervising attorney, who was there that day, later told the City Council, “This was terrifying for our client and her family.”

The plainclothes immigration agents refused to produce identification, according to Mogulescu. She approached one of the agents, who she said told her his last name was Lee and that he was there for several women in AP8, though he would not say whom — nor did he produce warrants or any paperwork for those women. Later that day, Legal Aid staff said, they saw that the same ICE team had taken two other people into custody from outside the Queens courthouse. Once it appeared ICE was gone, they asked for the Chinese woman’s case to be called again. She was then released from custody.

ICE’s attempt to arrest this woman made local headlines, but the stories had few details about the agency’s target. She had been arrested by the NYPD in February in Queens and charged with prostitution and practicing massage without a license, a common allegation after police raid massage parlors. This arrest is how she ended up in AP8, one of New York’s human trafficking intervention courts, and how she came to be described in statements to the press as a victim of human trafficking — though she had made no statements of her own.

A human trafficking intervention court does not prosecute people for trafficking. The “intervention” in the name begins with vice officers, after they place someone accused of prostitution offenses in handcuffs. “By and large, we work under the assumption that anyone who’s charged with this kind of crime is trafficked in some way,” Judge Judy Harris Kluger, one of the court’s prominent advocates, told the City Council in 2013. The courts, she has written, are meant to treat those arrested as “victims, not defendants.”

Now ICE has signaled that it will use the trafficking courts as a way to stalk immigrants. As Legal Aid’s client learned, ICE wields terrifying power in these courts: Agents will try to take people away from the defense attorneys standing at their sides, and without a warrant. People can then disappear into the immigration detention system, where they are not currently guaranteed the same rights to legal representation. As it stands, defendants risk being released from criminal court right into the custody of ICE. “This is an agency that zealously guards its ability to arrest anyone that it wants, wherever it wants to do it,” Andrew Wachtenheim, supervising attorney at the Immigrant Defense Project, testified before City Council in June.

On a blistering-hot morning just six days after ICE showed up at the Queens trafficking court, dozens of community activists flanked members of the council, including Speaker Melissa Mark-Viverito, on the steps of City Hall. “To target a survivor of human trafficking as she benefits from a highly specialized court program to help survivors rebuild their lives is indefensible,” Mark-Viverito said. “We will not allow this to stand.”

But in addition to the outrage expressed at ICE arresting immigrants in this sanctuary city, there is a question worth asking: how and why those immigrants came to be in trafficking court in the first place. The vast majority — 91 percent — of Legal Aid clients charged with unlicensed massage are not U.S. citizens, Mogulescu told the City Council.

Immigrants, like the other defendants in trafficking court, got there the same way: through arrests. “While we share in all of the outrage and shock that this happened in the human trafficking intervention court, we really can’t be very surprised,” Mogulescu said. “This is a question of arrest policy, and who is brought into criminal court as sitting ducks for ICE enforcement.”

On average, the NYPD arrests three people a day — 1,196 in 2015, according to data obtained by the Legal Aid Society from the New York State Division of Criminal Justice Services — for offenses related to selling sex, including prostitution, “loitering for the purpose” of prostitution, and “unauthorized practice of a profession” (the charge used in massage parlor raids).

The day after the City Hall press conference, Judge Serita would hear another thirty or so cases in her trafficking court. Waiting their turn on the wooden benches, the defendants sat solo and in pairs. It was not unusual to see one woman stick around until another’s case was called; they’d watch each other’s bags, exchange commentary between cases, and leave together. The defendants the week after ICE turned up were Asian, Latina, and black, which also wasn’t unusual. Most of the defendants asked for an interpreter — Chinese, Korean, Spanish. One defendant almost missed her case when the court officer fumbled with her name. Another woman two rows back called out to her in time for her to rush up to the bench.

Judge Serita’s demeanor throughout was warm but practiced. She offered variations of the same phrase: “If you stay out of trouble and lead a law-abiding life, your case will be dismissed.” If you take at face value the court’s mission to treat people as victims and not criminal defendants, it’s a strange thing to say. Women engaged in prostitution, the court’s advocates argue, don’t have a choice when it comes to the offenses they stand accused of. How are they then supposed to choose to lead “law-abiding lives” as the judge orders?

These defendants’ victim status is conditional: not only on agreeing to “stay out of trouble,” but on attending multiple sessions with one of the agencies Serita assigns them to based on their case. Then they return to court, where the judge reads a report on their progress. The judge can decide if their case will be sealed or if she will mandate more sessions. On that day, the week after ICE targeted her court, Serita saw defendants she had mandated to six, eight, or even twelve sessions. If defendants fail to complete the sessions, or if they fail to appear again in court, a warrant could be issued for their arrest.

When the statewide rollout of the trafficking courts was announced in 2013, they were heralded as a new approach to addressing prostitution charges. This new approach has not been accompanied by a new approach to policing. Since 2013, some prostitution arrests have gone up, and dramatically in Asian immigrant communities, like charges for “unauthorized practice of a profession,” the same offense the woman targeted by ICE faced. In 2012, there were just 31 such arrests of Asian-identified people in New York City, according to a 2017 report from the Urban Institute and the Legal Aid Society; in 2016, the NYPD arrested 631 Asian-identified people for this offense. Overall arrests of Asian-identified people in New York City charged with both unlicensed massage and prostitution increased by 2,700 percent between 2012 and 2016.

In trafficking court, judges don’t get into the particulars of these arrests. “I’m gonna try to stay out of trouble,” one of the Queens AP8 defendants was heard to say as she left court. “But I can’t promise.” No one in this court could. The defendants walking out with their cases sealed have every reason to believe they could be arrested again, so long as the police treat any past prostitution arrest as a reason to lock them up. As the Voice has reported, this is all too common: A group of women are suing the city over what looks like the standard police practice of profiling women based on their race, gender, and past arrests, even those who have gone through trafficking court.

Even before that suit, the City Council was aware of the problems with prostitution arrests. In 2015, at a special hearing on the trafficking courts, Jessica Peñaranda, special project coordinator at the Urban Justice Center’s Sex Workers Project (SWP), testified, “While we support the basic tenets of the courts as a way to reduce the harm and risk of exploitation of sex workers and trafficking victims, our extensive experience informs a strong belief that arresting individuals is not the most effective way.” Peñaranda added that one defendant had told SWP that, during a raid, an undercover officer had commented, “If it wasn’t for us finding you, you would be dead.”

At the same hearing, Audacia Ray, then the director of the Red Umbrella Project (RedUP) — a group led by people in the sex trade, including those who have been arrested and sent to the courts — also testified. “The assumption is embedded in the system right now that arresting folks is rescue and is a way to get people into services,” Ray told the council. “There has been a lot of talk today about the violence of the sex industry and the trauma people face….For us, experiences in the courts and experience with the police — that is trauma and violence.”

Judges know, intimately, the risks that come with these courts. Though ICE’s presence in the trafficking courts is a recent development, deportation is not a new threat faced by defendants. “You understand that if this happens again,” Judge Serita told a defendant in 2013 when a reporter was present, “the offer that is being made now might not happen, and if there are immigration issues you can be deported.” At the press conference to protest ICE actions in the trafficking courts, Kluger — one of the architects of the courts — told reporters that the agency’s actions were a “violation.” But then she was asked: If that’s so, why does the NYPD continue to arrest victims of trafficking?

Kluger, who now heads Sanctuary for Families, which offers services to trafficking court defendants, tried to bat the question away: “Well,” she said, “that’s a whole other issue.” Pressed, Kluger added that while she didn’t think they should be arrested, “You’d have to direct that to NYPD.”

A recent city criminal justice reform commission has, in fact, recommended that the state legislature remove prostitution laws from the books. At the time, Kluger responded to this announcement by claiming the human trafficking courts were “in essence decriminalizing prostitution offenses.” But that’s not the case: Without the NYPD’s prostitution arrests, the trafficking courts would be empty; there would be no defendants in the courts for ICE to so easily target.