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February 9, 2019

No Immigration arrest by local cops, NY Appeals Court Rules

By Michael H. Joseph

Immigration (ICE) showing up to the courthouse to pick up undocumented immigrants on their court dates has become a common occurrence recently as all criminal defense lawyers who practice I. Westchester know. In a case originating in Suffolk County, a court ruled on November 14, 2018 that state and local law enforcement have no authority to arrest and detain people on behalf of the federal Immigration and Customs Enforcement agency for deportation purposes.

Normally, individuals suspected of entering the U.S. illegally can be arrested by local or federal law enforcement before being transferred to U.S. Immigration and Customs Enforcement custody.

Local police

Local police officers who arrest undocumented immigrants for violations ranging from serious crimes to routine traffic citations can share arrest information with ICE, part of the Department of Homeland Security. ICE can request an individual be held up to 48 hours and be transferred into its custody, but local law enforcement is not required to honor those requests. After that, the individual must be released, but ICE can still arrest the individual in the future.

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U.S. Border Patrol

Border Patrol agents and officers make arrests at borders and airports. Those arrested are turned over to ICE.

ICE agents can make arrests at homes, businesses and other places. Recent reports have found officers making arrests at courthouses and near schools. After arrest, ICE decides whether to take custody of individuals and pursue removal proceedings. In Westchester, our criminal defense lawyers have seen IcE making arrests in the Courthouse parking lots of people on their way to the criminal courthouse.

However, 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 notified to  immigration authorities.  The court ruled that such a policy was “unlawful” under New York law.  Shortly after the decision came down on November 14, 2018 Sheriff Errol Toulon, issued a staff directive saying: “This practice shall cease immediately.”

The case at the center of the issue dealt with Susai Francis, a citizen of India who moved to New York in 1996 under a six-month visitor’s visa. He failed to depart upon the visa’s expiration; he now has two children, one of whom is a U.S. citizen. According to court documents, he was charged in Suffolk County in 2016 with violating a Family Court order of protection. Francis ultimately pleaded guilty to disorderly conduct charges on Dec. 11, 2017, and was sentenced to time served. But instead of being released, he was detained at a county jail in Riverhead, “placed in a jail cell rented by ICE,” according to court documents. Two days later, ICE agents retrieved Francis and took him to a federal facility to begin deportation proceedings. Francis should have been released from Suffolk custody and not turned over to the federal authorities, the court ruled.

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 stated aimed at a policy initiated by Suffolk County officials.

Francis’s case was handled in accordance with the revised policy. Arrest and detention are deprivations of freedom. Where an individual in a state or local correctional facility continues to be held against his or her will despite having served a sentence, it is important, if not vital, if our rule of law is to mean anything, that a court determine whether the continued detention is lawful. It is important as well for the Sheriff to have the benefit of a ruling on the merits so that his conduct may be guided accordingly. Our White Plains criminal defense layers will continue to represent immigrants accused of crimes throughout Westchester.

It was thus concluded that New York state and local law enforcement officers are not authorized by New York law to effectuate arrests for civil law immigration violations.

 
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