This article was written by the distinguished retired jurist, John H. Wilson.
Recently, the Attorney General for the State of New Jersey, Gurbir Grewal, issued a directive to law enforcement officers in that state – unless there is a warrant issued by a judge, the police and corrections departments are forbidden from turning a person with an Immigration Detainer over to ICE for deportation proceedings. “Sheriffs’ officers cannot help ICE officers make arrests at courthouses…and corrections officers cannot let ICE officers interview an immigrant arrested on a criminal charge unless that person agrees and is offered a lawyer.” https://www.wnyc.org/story/nj-attorney-general-cops-stop-working-ice/
This ruling comes on the heels of a decision of the Appellate Division, Second Department, of New York State, which decided that “local police officers in New York state can’t hold immigrants in custody beyond their release date solely to turn them over to Immigration and Customs Enforcement without a judicial warrant.”
This is an issue that has been addressed by me previously, when the mayor of Oakland, California issued a warning to all illegal immigrants in her community about an impending ICE raid. At that time, I explained the difference between a civil wrong and a criminal action. However, given the continuing confusion over this issue, the point bears repeating.
Under federal immigration law, it is NOT a crime to be in the United States, even if you entered the country and/or remain here in violation of immigration law. It is a violation of civil immigration law to commit these acts. It is, however, a federal crime to improperly enter the country.
Thus, people who cross the border without a visa for entry, or without going through a Customs checkpoint, are committing a crime. People who overstay their visa, or who enter illegally and are not caught at the border, are committing violations of civil law.
Further, deportation is NOT a criminal penalty – it is a civil penalty, exacted after a civil deportation hearing. Herein lies the crux of the matter.
Both the NJ Attorney General, and the NY Appellate Court, specifically emphasized their continuing desire to cooperate with law enforcement. However, both define that as requiring detention only upon the issuance of a valid warrant from a court.
Under this extremely narrow definition, an ICE detainer and arrest warrant, issued by the Naturalization Court, an administrative body, cannot be acted upon by either the police or corrections departments of any city, town or municipality in either New York or New Jersey.
To understand how this level of hair-splitting is possible, we should examine the New York Appellate Division case in more detail.
Susai Francis was a citizen of India, who overstayed a six month B2 visitor’s visa in 1996. In 2016, and 2017, he was arrested for several misdemeanor charges, including driving while intoxicated. He already had a removal petition pending against him since 2015.
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Upon his arrest in 2017, ICE issued both a detainer and an arrest warrant for Mr. Francis, who was being held pending his DWI charges in Nassau County. Once Mr. Francis concluded his criminal matter with a guilty plea, and a sentence of time served, he was maintained in custody pending his transfer to the custody of ICE.
This was the procedure followed for many years by the New York Courts – the detainer and arrest warrant from ICE acted as a “hold” on a prisoner – that is, he could not be released from custody even if he paid the bond, or completed his sentence for his criminal charges.
So, what changed? The Second Department ruled that since the ICE detainer is civil in nature, not criminal, a civil detainer could not act as a “hold” on a prisoner due for release from a correctional facility. Further, the “arrest warrant” issued by the ICE Naturalization Court was also civil, and did not have the same effect as a warrant issued by a State or Federal Court. As the Court stated, “Although administrative arrest warrants are constitutionally valid in the federal immigration law enforcement context, such warrants are civil and administrative, and not judicial, in nature (see Abel v United States, 362 US 217, 234, 236).”
Let us put aside the fact that for many years, thousands of people were held on these ICE detainers and arrest warrant that the Second Department just figured out were never valid in the first place. There was another obvious flaw in the Appellate Division’s thinking on this issue – however, unlike the sudden invalidity of these long-honored detainers, the decision in Mr. Francis’ case addressed the flaw by making a distinction never before made.
If an arrest warrant and detainer issued by an administrative court cannot act as a “hold” on a prisoner, than what about the warrants and detainers issued by other administrative agencies, such as the Parole Department? A parolee in violation of the terms of their sentence has their “violation” heard by an administrative judge (a person who violates probation goes back before the judge that sentenced the person to probation).
To solve this problem, the Second Department made a distinction; “Parolees, unlike Francis and other similarly removable aliens, have been convicted and sentenced for committed crimes. Parole is not freedom—parolees have been sentenced to imprisonment but allowed to serve a portion of their sentence outside prison walls. Given the unique status of parolees, an administrative warrant for the re-taking of a parolee is not an arrest for Fourth Amendment purposes (see United States v Polito, 583 F2d 48, 55-56 [2d Cir].”
No word yet on whether the thousands of persons held on ICE detainers in New York for upwards of 30 years can sue the state for their “illegal” detention.
Though the position taken by the Attorney General for New Jersey is a relatively new tack for that state, if not for some of their cities, the decision of New York’s Appellate Division, which sits in Brooklyn, is in keeping with the mentality displayed by New York State on this issue. In particular, the New York City Council has been militant in protecting illegal immigrants, going so far as to recently pass a resolution calling for the abolition of ICE. Ironically, this resolution was passed the day after the arrest of 16 sexually predators in anticipation of deportation proceedings.
In effect, then, both New York and New Jersey have reiterated and reinforced their pro-illegal immigration policies with the force of state law. It remains only a matter of time then, until we see the criminal prosecution of law enforcement personnel in these states for the arrest and detention of persons illegally present in the United States.
Photo: NY State Capitol (Discover Albany)