The final season of Orange is the New Black is now on Netflix, and the women of the fictional Litchfield prison in upstate New York have company: immigrants detained by Immigration and Customs Enforcement (ICE). The show’s creators wanted to draw attention to the powerful, real-life issues around immigration. For example, they depict federal immigration agents raiding a nightclub, and what it’s like for children to appear in immigration court. But how realistic are these scenes?
ARE IMMIGRANTS REALLY CRAMMED INTO BUNKBEDS IN TIGHT QUARTERS, AND IS IT DIFFICULT TO CALL LAWYERS?
The creators of OITNB put a lot of effort into making the ICE detention center look accurate. The writers toured a facility in California. They used this to create story lines for old and new characters we meet in Season 7. One actress, Diane Guerrero, even had her own real-life family experience with deportation.
Immigration lawyers said they don’t always see inmates on bunk beds, like the women in the show’s Litchfield facility. But detainees do wear orange and they do have to pay for any phone calls. The show includes a real life hotline run by Freedom for Immigrants, which is free to call. Two weeks after the show’s release in late July, ICE blocked this hotline. The organization has since sent a cease and desist letter demanding its restoration.
COULD ICE REALLY ARREST A BUNCH OF PEOPLE AT A NIGHTCLUB?
I ran that question by Rachael Yong Yow, the public affairs officer for ICE in New York. Here’s her response via email:
“If there was a raid at a club, that would only be done as part of a criminal investigation, most likely with other law enforcement partners, by the HSI (Homeland Security Investigations) side, the special agents. Checking ID is something that would normally be done when conducting an investigation, not necessarily to check immigration status.” So they wouldn’t just walk into a club and start asking for IDs at random.
EVEN IF IT'S NOT RANDOM, CAN THE AGENTS ARREST EVERYONE WHO DOESN'T HAVE THE PROPER ID?
Amy Belsher, a staff attorney at the New York Civil Liberties Union, said ICE generally executes raids of all sizes like you see in the show, “But they're typically done either at home, at the workplace like we saw recently in Mississippi, or outside of court houses or jails as people are coming out of either court appearances or being released.”
ICE needs a warrant signed by a judge to enter a home. But not a nightclub that’s open to the public. However, even if agents did suddenly show up at a club to find one individual, Belsher said the other patrons could have exercised their rights.
“If you are in a public space like that and ICE approaches you, you do have the right to remain silent,” she said. By revealing information that you’re not properly documented, you could then become a collateral arrest.
Many more immigrants are being arrested now than in the later years of the Obama Administration, when ICE focused mostly on those with criminal records. According to the American Immigration Council, which cites publicly-available government statistics, over a three-year period — from Fiscal Years 2016 through 2018 — the total number of arrests conducted by ICE in FY 2018 was 44 percent higher than in FY 2016.
One more thing: if you say you’re an American citizen, and ICE agents don’t even have your name, there’s no probable cause for an arrest. But Belsher said you should always tell the truth.
On a scale of 1 to 5 with 1 being totally accurate, Belsher said she’d give this nightclub scene a 3 with extra points for showing the terror of an ICE raid.
DO YOUNG CHILDREN REALLY GO TO IMMIGRATION COURT WITHOUT ANY LAWYERS?
In the 11th episode, called “God Bless America,” the head of Litchfield’s ICE unit is shocked to see a courtroom filled with children. A child’s scream punctures the soundtrack. “Can someone please take the baby outside until it’s her turn?” asks the judge.
Lenni Benson, a professor at New York Law School who also founded the Safe Passage Project for immigrant kids, said she was in an immigration courtroom a few years ago when something similar happened. A toddler began to cry and the judge wasn’t happy.
“And she said ‘Could someone please take the baby out of the courtroom?’” she recalled. “I scooped her up and I held her up, I said ‘Yes, Your Honor, but I'd like you first to meet the respondent.’ And the judge's face was just shock. I mean she'd never seen a child that young.”
Those appearing in immigration court are called respondents, not defendants. The child Benson referred to did have a representative.
Immigration court isn’t a criminal court. If you can’t afford a lawyer, the government is not required to find you one for free. This is true even for children. Last year, John Oliver’s Last Week Tonight mocked the ridiculousness of sending children to court without lawyers by creating a courtroom drama called “Tot Bench.”
From my own reporting in New York’s immigration court, I’ve never seen a child in a courtroom without either an attorney or an advocate from the Young Center for Immigrant Children’s Rights. Young Center staffers are appointed under federal law as independent advocates for the most vulnerable kids in federal custody, meaning children staying at shelters or in foster care. These advocates help figure out the best interest of the child — whether that’s returning to join a parent in their home country, or continuing the child’s own case to remain in the U.S.
New York is an unusual place because it has many nonprofits that represent immigrant children. The City Council allocated $3.9 million this year in funds to organizations that help children fight their cases with attorneys and wrap-around services. That’s not the case everywhere.
According to TRAC at Syracuse University, two thirds of juveniles whose cases were opened in Texas immigration courts did not have attorneys during fiscal year 2018. But less than a quarter of the kids with new cases that year in New York state immigration courts didn’t have representation.
Nicolette Glazer, an immigration lawyer in Los Angeles, said she was once in a courtroom where a child who looked to be about seven years-old stepped up, “and the judge asked the kid for his name and the kid didn’t respond.”
She said the judge tried to explain the proceedings but decided to postpone the case so the child could find an attorney.
That’s the most likely outcome when children don’t have lawyers. But children can still be deported, with or without attorneys.
ARE IMMIGRANTS INFORMED ABOUT THEIR RIGHTS IN COURT?
Immigration judges are instructed to tell everyone without an attorney how the court process works. But we don’t see this in any courtroom scene in OITNB. And a scene involving adult women is particularly misleading because it suggests they’re being deported on their first court appearance, even if they don’t have counsel. At one point a detainee tells a judge that she knows she has the right to a lawyer and she requests a continuance, which the judge reluctantly grants.
“The judge is supposed to explain the nature of the hearing,” said Benson. “Tell them they have a right to counsel at their own expense. Tell them the charges against them and then ask, do they want more time to find a lawyer and should give a reasonable continuance.
The definition of reasonable could change from place to place, said Benson, who believes judges in New York may give immigrants, including children, more time to find an attorney than those in other jurisdictions.
If a child keeps coming back without an attorney, however, they could be deported. But Benson said the vast majority of children who are deported by immigration judges failed to show up for their hearings. Meaning those who keep coming to court will likely get some help along the way. Though it’s not guaranteed.
This summer, the Trump Administration changed the way immigrants are informed about their right to counsel. Adults are now shown a video, instead of having the judge give the explanation and take questions.
In short, the last season of “Orange is the New Black” is kind of like any other TV courtroom show. Plot lines are compressed so we don’t see how long these cases can drag out, the court process is overly simplified and characters are often reduced to good guys and bad guys. ICE officers, in particular, are portrayed as cruel and demeaning to immigrants — much like the prison guards we’ve seen in the show’s previous seasons. But at a time when immigration is in the news on a daily basis, the series does give you a good overview of the system and of what’s at stake for the individuals.
Listen to Beth Fertig‘s report on WNYC:
Correction: The article has been updated to note the group running the hotline is Freedom for Immigrants, not Freedom for Families.