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Second Department Strikes Down Suffolk County ICE Detainer Policy

The New York State Appellate Division, Second Department has just struck down the Suffolk County Sheriff’s policy, widely referred to in the legal community as “honoring ICE detainers”. While the Court’s November 14th ruling in People of the State of New York, ex rel. Jordan Wells, on behalf of Susai Francis v. DeMarco (available at: http://www.courts.state.ny.us/courts/ad2/Handdowns/2018/Decisions/D57355.pdf) takes some heavy statutory cross-referencing and is ultimately moot for the initial habeas petitioner (now in ICE custody and beyond the state court’s reach), the impact going forward seems clear and forceful enough to have prompted current Sheriff Toulan to declare in the wake of the decision that all continued detentions will “immediately cease.” The impact should also be immediate for other counties in the Second Department including Nassau and Westchester where similar policies would now appear to be invalid. There is also a strong argument that any police, sheriff’s office or county correctional policy of arresting or holding non-citizens strictly upon a request premised upon a purely civil immigration violation is per se unlawful as it would appear no other appellate division has ruled to the contrary on the issue to date(1). Ultimately it is likely that the case will be appealed by Suffolk County and will have to be resolved by the Court of Appeals in the coming months. But for now there is reason to be joyful for non-citizens and their friends, loved ones and very relieved representatives.

The practical impact of the decision of course remains to be seen. The first to see the results of the decision should be those finishing jail sentences in the days immediately following the decision from the Riverhead and Yaphank facilities or released from court in Central Islip or elsewhere. “Cease immediately” should mean that once an individual is finished being processed for release- just like an inmate who is a U.S. citizen, there should not be any further interruption in that individual being released. They should not be held one additional moment simply on account of the fact that a request, (a typical ICE detainer and civil arrest warrant is request), has been received by the Suffolk County Sheriff. The urgency here is of course somewhat real. Nothing prevents ICE officers from arresting such individuals when they leave jail or court. ICE officers do possess arrest power but New York State law enforcement officers do not have the legal authority to do it for them. That is what Francis tells us and gives us.

One thing we do know is that when ICE has one avenue of easily and systematically detaining individuals closed, they will adapt and utilize other strategies to make their arrests. For example, in New York City where ICE has been expelled from the jails, they do make arrests in and around courthouses. Will they actually attempt to intercept individuals on their way home from jails? Will there be more local courthouse efforts and an increased use of vague “call-in letters” designed to result in de facto self-surrender? And will the other counties through the state fall in line or are we looking at an onslaught of habeas petitions in the coming weeks and months?

Only time will tell, but we are certainly at a unique point in this country’s legal history with regard to its federalism and separation of powers. The judiciary (both state and federal) seems to be at odds with those seeking to enforce the law while the legislative branches seem mired in ineffectiveness. No comprehensive immigration reform appears coming to clear this up for us any time soon.

1) Mountain View Coach Lines v. Storms, 102 A.D.2d 663 (2nd Dept. 1984)

Posted in: Immigration