In a significant decision, the Supreme Court of New York, Appellate Division, Second Judicial Department, held that local law enforcement in its jurisdiction could not lawfully keep aliens in custody solely in relation to a detainer request from the Department of Homeland Security (DHS). The decision by the Second Department, an intermediate appellate court, is titled People ex rel. Wells v. DeMarco, —- N.Y.S. 3d —— (N.Y. App. Div. 2d Dept. Nov. 14, 2018) [PDF version].

The case arose in Suffolk County, New York. From September 2014 to December 2016, it was the policy of Suffolk County to release inmates who were otherwise slated for release notwithstanding any detainer requests from the U.S. Immigration and Customs Enforcement (ICE). That is, Suffolk County would not hold inmates solely on the basis of an ICE detainer request. However, on December 2, 2016, the Sheriff of Suffolk County changed this policy, requiring the holding of such inmates subject to an ICE detainer for up to 48 hours after the time at which they would otherwise have been released. The Second Department described how Suffolk County implemented the policy: “Under the 2016 policy, when an inmate is subject to an ICE detainer and warrant, the inmate is retained at a Suffolk County correctional facility by the Sheriff but the paperwork is ‘re-written’ to reflect that the inmate is in federal custody.”

The petitioner in the case filed a petition for state habeas corpus relief.

The petitioner had entered the United States as a B2 visitor in 1996. However, he never departed the United States, and he remained longer than permitted. He was served with a Notice to Appear by DHS on March 25, 2015, initiating removal proceedings against him. We will list the facts of his criminal history and detainer below:

The petitioner was charged in Suffolk County with misdemeanor criminal contempt in the second degree (NYPL 215.50) on November 28, 2016. He was released on his own recognizance.
The petitioner was arrested on June 14, 2017, in Nassau County on two misdemeanor counts relating to the same incident. The first count was driving under the influence of alcohol (Vehicle and Traffic Law 1192) and the second was driving an uninsured vehicle (Vehicle and Traffic Law 319). The petitioner was held at the Nassau County Correctional Center.
After being arrested in Nassau County, the petitioner’s fingerprints were taken and submitted to federal authorities. ICE identified the petitioner as being in the United States without legal authorization. ICE issued a detainer request and arrest warrant for the petitioner and provided them to the Nassau County Police Department. ICE cited to sections 236 and 287 of the Immigration and Nationality Act and 8 C.F.R. 287.
On December 4, 2017, pursuant to a plea agreement, the petitioner pled guilty to one count of misdemeanor operating a vehicle while under the influence of alcohol. He was subsequently transferred to the Suffolk County Correctional Facility in Riverhead for the completion of criminal proceedings on his November 28, 2016 criminal charge in Suffolk County. The ICE detainer request and warrant was transferred along with him from Nassau County to Suffolk County.
The petitioner pled guilty to one count of disorderly conduct in Suffolk County District Court. He was sentenced to time served. Instead of being released, however, the petitioner was returned to the Suffolk County Correctional Facility. Suffolk County Sherriff’s Office officials re-wrote his paperwork from being an “adult male misdemeanor” case to an “adult male warrant” case based on the ICE warrant. The petitioner was placed in a jail cell in Suffolk County Correctional Facility rented by ICE.
On December 13, 2017, ICE agents retrieved the petitioner from the Suffolk County Correctional Facility and transferred him to an ICE detention facility, marking the end of his being in the custody of New York law enforcement. At the time of the case, the petitioner was still in immigration detention.

The Second Department could not grant the state habeas relief sought, namely, release from custody, because the petitioner was no longer in state custody. Normally, this would mean that the Second Division would dismiss the case as moot. However, it instead decided to reach the merits, notwithstanding the fact that it could not grant the relief sought, under several procedural exceptions. Namely, the court discussed the importance of the issue and the fact that no case would likely arise wherein it would have the opportunity to fully adjudicate a case in the 48-hour period period in which an alien was detained pursuant to an ICE detainer request and subsequently transferred to ICE custody.

The Second Department held that the Suffolk County sheriff lacked authority under New York law to detain the petitioner solely in relation to the ICE detainer request and warrant. In a key passage, the court wrote as follows: “New York statutes do not authorize state and local law enforcement to effectuate warrantless arrests for civil immigration law violations. An arrest without a warrant is permitted where an individual ‘has committed or is believed to have committed an offense and who is at liberty within the state’ under certain circumstances prescribed by statute (CPL 140.05).” The Court explained that “[i]mmigration violations … are not crimes but rather civil matters.” Regarding the instant case, it held that since “the members of the Sheriff’s office who arrested [the petitioner] did not claim that he committed any offense or crime, state or federal, they lacked the authority under the New York statutes to arrest him without a warrant.” The court rejected arguments that the arrest and detention was permissible under common law police power in New York. It added that “the New York Legislature could, if it thought it desirable, convey to state and local law enforcement the authority to effectuate arrests for federal immigration law violations. However, it is not for us to make that policy determination.”

The court also rejected arguments that federal law mandates state officials to make civil immigration arrests. It reasoned that the Federal Rules of Criminal Procedure do empower New York state and local law enforcement officials to “execute federal court arrests warrants for the purpose of bringing to court individuals accused of the commission of federal immigration crimes,” it does “not empower New York state and local law enforcement officials to execute ICE administrative arrest warrants.”

The court also addressed section 287(g) of the INA agreements, which allow local law enforcement to receive training to carry out immigration enforcement duties and act under the supervision of DHS. However, in the instant case, Suffolk County was not party to a section 287(g) agreement. For this reason, the court wrote that it did “not have occasion here to address any issues with respect to 287(g) or other formal agreements.” The court discussed provisions of the INA that allow local law enforcement to cooperate with DHS, but it found no provision that purports to mandate such cooperation in contravention of state law.

The Second Department has intermediate appellate jurisdiction over Kings County (Brooklyn), Richmond County (Staten Island), Queens County, Nassau County, Suffolk County, Dutchess County, Orange County, Putman County, Rockland County, and Westchester County. Accordingly, the decision is only binding upon the lower courts in those counties.

The decision is significant for certain aliens in criminal custody in covered areas wherein local authorities cooperated with ICE detainer requests. The decision highlights the distinctions between local and federal authorities and the difficulties that DHS often has in effectuating immigration arrests in certain jurisdictions. However, the effect of the decision is limited. For example, many areas covered by the Second Department were already reluctant to comply with detainer requests. Furthermore, the decision has no effect on ICE’s authority to arrest an alien. It merely means that local authorities cannot detain aliens solely on the basis of a request from ICE.

In general, an alien with general status issues or criminal matters should consult with an experienced immigration attorney for case-specific counsel and guidance. We will update the site with further information about this case and other issues of particular importance to non-citizens in New York.