US-Immigration-Customs-Enforcement Photo: shutterstock.com

Nothing in New York law gives state and local law enforcement agencies the authority to detain inmates for U.S. Immigration and Customs Enforcement on immigration charges, a state appeals court said in a ruling aimed at a policy initiated by Suffolk County officials.

The unanimous ruling by the Appellate Division, Second Department rejected the Suffolk County Sheriff's Department's policy of keeping inmates who are the subjects of ICE detention or deportation orders for up to 48 hours after the time that they normally would have been released and immediately notifying immigration authorities.

While inmates are under the 48-hour immigration hold, their paperwork is rewritten to state that they are in federal custody, and they are placed in cells that ICE rents out in the county lockup.

Writing for the panel, Presiding Justice Alan Scheinkman noted that immigration violations are civil, rather than criminal, in nature, and that warrants for civil offenses must be issued by a court.

ICE warrants and detainers are not issued by courts and are administrative in nature, the judge said—thus they are unenforceable by state and local agencies in New York and the Suffolk County policy is unlawful.

Justices Ruth Balkin, John Leventhal and Sylvia Hinds-Radix joined in the decision.

In the case at hand, Susai Francis, an Indian citizen, traveled to the U.S. on a six-month visitor visa in 1996.

Francis ended up overstaying his welcome by about two decades: he continued living on Long Island after his visa expired and, in 2015, he was served to appear in immigration court.

The following year he was hit with criminal contempt charge in Suffolk County for violating an order of protection issued by a family court. In 2017, he was arrested again, this time in Nassau County, for drunk driving and driving without insurance.

While he was being held in Nassau County, ICE issued a detainer and a warrant for Francis. He pleaded guilty to the drunk driving charge and was sent to Suffolk County Correctional Facility in Riverhead, which is run by the sheriff's department, to complete proceedings for the contempt charge.

Francis pleaded guilty to a disorderly conduct charge and was sentenced to time served, but he was kept in jail under the Suffolk County Sheriff's Department's immigration detainer policy.

Jordan Wells of New York Civil Liberties Union filed for a writ of habeas corpus on Francis' behalf, but he was transferred to a permanent ICE facility in New Jersey.  

“This ruling makes clear that local law enforcement officers across New York do not have the authority to arrest immigrants at the request of ICE,” said Wells, who now works with the American Civil Liberties Union of Southern California, in a news release. “New York law grants officers specific, well-defined arrest powers, and the power to make immigration arrests is not one of them.”

While Scheinkman said the Second Department's ruling addressed the narrow issue of whether state and local authorities in New York—and not federal immigration authorities—can make civil immigration arrests, the case attracted attention from a broad array of outside parties.

The Department of Justice, which has taken a hard-line stance on immigration policy enforcement since President Donald Trump took office, filed an amicus brief in the case to support the Suffolk County Sheriff's Department, arguing that federal law allows state and local law enforcement to cooperate with ICE.

Without that cooperation, the Justice Department argues, removable immigrants could be released back into the community, where they may commit crimes or be harder and more dangerous for ICE agents to arrest them.

Neither the Justice Department nor the Suffolk County responded to requests for comment.  

But the New York Attorney General's Office and a coalition of legal service providers and law professors came in on the side of the NYCLU to challenge the legality of the Suffolk County policy.

The decision comes as Trump has called national attention to violent incidents perpetrated in some areas of Long Island by MS-13 gang members, which has raised fears for local residents and became a rallying cry for Trump in pushing for tougher immigration policy enforcement.   

Suffolk County had ceased enforcement of ICE detainers in 2014 but adopted its current policy in 2016; according to court papers, sheriff's departments in Nassau and Suffolk counties issued more than 800 ICE detainers in 2017.

The Suffolk County sheriff does not have a formal cooperation pact with immigration authorities, known as a 287 (g) agreement, with the U.S. Department of Homeland Security that conveys the powers of immigration authorities to local officers, though the sheriff's department has a longstanding agreement U.S. Marshals Service to house federal detainees at the Riverhead jail.

Rensselaer County Sheriff Patrick Russo is the only New York sheriff who has entered into a 287 (g) agreement with the Homeland Security Department.     

Read more:

Trump Administration Fingerprint Requirement for Immigration Sponsors Keeps Children Detained for Weeks or Months, NYCLU Class Action Claims

Deposition of DOJ Official in Census Suit Admits Citizenship Query Might Be Unnecessary

Trump Administration Seeks SCOTUS Cert in DACA Suits