Immigration enforcement

Guidance concerning local authorities’ participation in immigration enforcement and model provisions

Updating guidance originally issued January 19, 2017 

Download a printable version of this guidance

Purpose 

The purpose of this guidance is two-fold: (1) to describe the legal landscape governing the participation of local authorities in immigration enforcement; and (2) to assist local authorities in New York State by offering model language that can be used to enact local laws or policies that limit participation in immigration enforcement activities.[1] The Office of the New York State Attorney General believes that effective implementation of the policies set forth in this guidance fosters a relationship of trust between law enforcement and immigrant communities; promotes public safety for all New Yorkers; and best directs state and local resources.

As explained in detail in Part II of this guidance, as a general rule, it is not a crime for an undocumented individual to remain present in the United States.[2] In addition, undocumented individuals—like all other New Yorkers—are afforded certain rights by the New York State and United States Constitutions, as well as by federal, state, and local statutes, regulations, and policies. Local law enforcement agencies (“LEAs”)[3] must adhere to the requirements and prohibitions of the New York State and United States Constitutions and federal, state, and local law in serving the public, regardless of whether an individual is lawfully present in the U.S. or otherwise subject to immigration enforcement. For instance, under New York state law, LEAs are not ordinarily permitted to detain people at the request of federal civil immigration authorities alone without a judicial warrant.[4] However, LEAs may notify federal immigration authorities of an individual’s release date, without extending their detention, under narrow circumstances as described below in Part III, Principle 2.

Part III of this guidance offers model language that can be used to enact laws and policies to govern how localities respond to federal requests for assistance with civil immigration enforcement. Several states and hundreds of localities across the country—including New York City and other local governments in New York State—have enacted laws and policies that restrict the involvement of state and local law enforcement agencies with federal immigration enforcement. See Appendix B.

Laws governing local authority participation in immigration enforcement 

The Tenth Amendment to the U.S. Constitution 

The Tenth Amendment to the U.S. Constitution[5] limits the federal government’s ability to mandate particular action by states and localities, including in the area of federal immigration law enforcement and investigations. The federal government cannot “compel the States to enact or administer a federal regulatory program,”[6] or compel state employees to participate in the administration of a federally enacted regulatory scheme.[7] Importantly, these Tenth Amendment protections extend not only to states but to localities and their employees.[8] Voluntary cooperation with a federal scheme does not present Tenth Amendment issues,[9] but any such cooperation must be examined for compliance with other federal, state, and local laws.

The New York Constitution and Home Rule Powers 

Under the home rule powers granted by the New York State Constitution,[10] as implemented by the Municipal Home Rule Law,[11] a local government may adopt a local law relating to the “government, protection, order, conduct, safety, health and well-being of persons” therein, as long as its provisions are not inconsistent with the state constitution or a general state law.[12]

The model provisions for localities outlined in Part III are consistent with both the state constitution and existing state law. 

Law governing treatment of federal immigration detainer requests 

Federal civil immigration authorities, including U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and others that may engage in civil immigration enforcement activity, commonly issue civil immigration “detainers”[13] to LEAs. A detainer is a request issued by a federal immigration authority to another agency that the recipient agency hold an individual in its custody for up to 48 hours beyond that individual’s scheduled release date and time and notify federal immigration authorities prior to release. This hold is requested to allow the federal immigration authorities to determine whether to take custody of the individual to pursue civil immigration enforcement and, if so, to come and take custody.

A detainer is a request, and there is no legal obligation for a local law enforcement agency to detain an individual on such a detainer. Detainers are often accompanied by an administrative warrant issued by ICE.[14] An administrative warrant is prepared and issued by federal immigration authorities and directs federal officials to arrest a noncitizen for removal or removal proceedings. It is not a judicial warrant . A judicial warrant refers to a warrant based on probable cause and issued by an Article III federal judge or a federal magistrate judge that authorizes federal immigration authorities to take into custody the person who is the subject of the warrant. A judicial warrant does not include a civil immigration warrant, administrative warrant, or other document signed only by federal immigration officials.

An arrest and seizure occurs under the Fourth Amendment and the New York Constitution[15] when state or local authorities detain an individual beyond the time authorized under state law in order to transfer that individual to the custody of federal immigration authorities.[16]State law bars state and local law enforcement officers from arresting and detaining individuals for civil immigration violations alone—even if federal immigration authorities have issued a detainer or administrative arrest warrant.[17]Arrests and detention by state or local law enforcement agencies in reliance on an administrative arrest warrant or detainer alone are invalid because those documents are not judicial warrants issued by courts, and do not provide probable cause to believe an individual has committed a crime or offense.[18] It is immaterial that the administrative arrest warrants and detainers are signed by federal immigration authorities, and may use words like “probable cause.”[19] A determination of whether the LEA has probable cause to further detain an individual will turn on all the facts and circumstances, not simply words that federal immigration authorities place on their forms.

In accordance with the federal and state constitutions, New York law permits arrest and detention only when law enforcement officials have probable cause to believe that an individual has committed a crime or offense.[20]A judicial warrant, signed by an Article III or federal magistrate judge, would demonstrate the necessary probable cause, and justify the arrest and detention.[21] Absent a judicial warrant, however, further detention is permissible only upon a separate showing of probable cause that the individual committed a crime or offense, or that an exception to the probable cause requirement applies.[22]

Examples of unauthorized immigration-related detentions include: 

  • A local sheriff’s re-arrest and re-incarceration of an individual following his sentencing to “time-served,” based solely upon an administrative detainer issued by ICE;
  • The delayed release of an incarcerated individual who has completed his or her criminal sentence or who has posted bail until immigration authorities have arrived to the facility to effect a civil immigration arrest; and 
  • The extended detention of a vehicle’s occupants following a roadside car stop until ICE officers arrive to question and/or arrest the occupants in relation to a suspected civil immigration violation. 

Excessive administrative delays, such as unusual delays in bail processing, may also rise to the level of an unauthorized seizure. When a county jail directly receives cash bail or is presented with proof of proper payment of bail for a person in custody, he or she “must be forthwith released from custody.”[23] Intentional delays in processing a bail deposit in order to time the person’s release with the arrival of immigration authorities, or otherwise because of the person’s immigration or citizenship status, may constitute an unlawful seizure.

Consistent with New York law, some federal courts also have held that an LEA violated the Fourth Amendment rights of an individual whom the LEA held past his or her normal release date in response to a detainer request from federal immigration authorities.[24] Indeed, at least one federal appeals court has held that LEAs may be liable for monetary damages for holding individuals for civil immigration violations.[25] As in New York, these federal courts have reasoned that detainer requests from federal immigration authorities do not constitute probable cause to believe that the individual has committed a crime; therefore, further detention is unconstitutional. Related questions remain the subject of ongoing litigation, including in New York.[26]

Notwithstanding the substantial limitations on LEAs’ authority to honor detainers from federal immigration authorities, LEAs have authority to honor such detainers if the federal authorities present a judicial warrant. Importantly, an LEA’s compliance with ICE detainers is voluntary—not mandatory—and compliance with such requests remains at the discretion of the LEA.[27] This guidance recommends that LEAs honor detainers or requests for further detention from federal immigration authorities when the federal immigration authorities present a judicial warrant. Additionally, LEAs may, in their discretion, determine to notify federal immigration authorities of an individual’s release date, without extending their detention, under narrow circumstances as described in Part III, Principle 2. Nothing in this guidance should be interpreted to modify the authority of LEAs to hold individuals based on probable cause for a state or federal offense in accordance with existing state law and to engage in coordination with federal criminal law enforcement authorities under the LEA’s existing policies and protocols. Such an approach promotes public safety in a manner that also respects the constitutional rights of individuals and protects LEAs from potential legal liability. 

In addition, Section 287(g) of the Immigration and Nationality Act (INA)[28] allows state and local law enforcement agencies to enter into agreements with the Department of Homeland Security, under which state and local law enforcement officers may perform certain functions of federal immigration officials to the extent allowed by state and local law.[29] But Section 287(g) does not permit states or localities to make arrests or detain individuals for immigration violations—e.g., in response to a detainer request from federal immigration authorities—in the absence of such an agreement and all that such an agreement may entail, such as appropriate training.[30] And it remains unsettled in New York law whether a Section 287(g) agreement could justify state and local law enforcement to arrest and detain for immigration violations, given that such arrests and detention would otherwise be unlawful.[31] Because such arrests and detention by LEAs may well violate New York law even with a Section 287(g) agreement, this guidance advises LEAs not to enter into such agreements. Any other agreements or arrangements between LEAs and federal immigration authorities to effectuate civil arrests likewise run a substantial risk of violating New York law unless the arrests are conducted pursuant to a judicial warrant. Section 287(g) and other agreements between local law enforcement and immigration authorities to effectuate civil arrests also may harm cooperation and trust between LEAs and immigrants—impacting the willingness of victims and witnesses to come forward and cooperate—and draw resources away from essential local law enforcement functions.

Finally, LEAs should be aware that New York’s Protect Our Courts Act specifically prohibits civil arrests without a judicial warrant or order of individuals inside, on their way to, or leaving from state, city, and municipal courthouses.[32]

Law governing information sharing with federal authorities 

In addition to issuing detainer requests, federal civil immigration authorities may also seek information about individuals in an LEA’s custody. For example, ICE may request notification of an individual’s release date, time, and location to enable ICE to take custody of the individual upon release. 

This guidance recommends that, unless presented with a judicial warrant, LEAs should not provide sensitive information that is not generally available to the public, such as information about an individual’s release details or home address. See infra Part III, Principle 3. This approach enables LEAs to protect individual privacy rights and ensure positive relationships with the communities they serve, which in turn promotes public safety.[33]

8 U.S.C. § 1373 

Federal law “does not require, in and of itself, any government agency or law enforcement official to communicate with [federal immigration authorities].”[34] Rather, federal law limits the ability of state and local governments to enact an outright ban on sharing certain types of information with federal immigration authorities. Specifically, 8 U.S.C. § 1373 provides that state and local governments cannot prohibit employees or entities “from sending to, or receiving from, [federal immigration authorities] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”[35] In addition, federal law bars restrictions on “exchanging” information regarding “immigration status” with “any other Federal, State, or local government entity” or on “maintaining” such information.[36] By their own language, these laws apply only to information regarding an individual’s “citizenship or immigration status.” 

Section 1373 thus does not impose an affirmative mandate to share information. Instead, this law simply provides that localities may not forbid or restrict their employees from sharing information regarding an individual’s “citizenship or immigration status.” Nothing in Section 1373 restricts a locality from declining to share other information with federal immigration authorities, such as non-public information about an individual’s release, court appearance, or address. 

In addition, Section 1373 does not require local governments to collect information about an individual’s immigration status. Thus, local governments can adopt policies prohibiting their officers and employees from inquiring about or maintaining information related to a person’s immigration status except where required by law.[37]

The Tenth Amendment may further limit Section 1373’s reach. The Tenth Amendment’s reservation of power to the states prohibits the federal government from “compel[ling] the States to enact or administer a federal regulatory program” or “commandeering” state government employees to participate in the administration of a federally enacted regulatory scheme.[38] As noted above, these Tenth Amendment protections extend to localities and their employees. 

Although the United States Court of Appeals for the Second Circuit has rejected a facial Tenth Amendment challenge to Section 1373, that court has recognized that a city may be able to forbid voluntary information sharing where such information sharing interferes with the operations of state and local government.[39] As the Second Circuit observed, “[t]he obtaining of pertinent information, which is essential to the performance of a wide variety of state and local governmental functions, may in some cases be difficult or impossible if some expectation of confidentiality is not preserved,” and “[p]reserving confidentiality may in turn require that state and local governments regulate the use of such information by their employees.”[40] Accordingly, the Tenth Amendment may be read to limit the reach of Section 1373 where a state or locality can show that the statute creates “an impermissible intrusion on state and local power to control information obtained in the course of official business or to regulate the duties and responsibilities of state and local governmental employees”—such as the impairment of the entity’s ability to collect information necessary to its functioning—“if some expectation of confidentiality is not preserved.”[41]

Some jurisdictions have adopted policies expressly restricting the disclosure of immigration-status information to any third parties, including federal authorities, on the grounds that confidentiality is necessary to gather this information and the information is crucial to various governmental functions. For these reasons, New York City, for example, prohibits its employees from “disclos[ing] confidential information”—including information relating to “immigration status”—except under certain circumstances (e.g., suspicion of illegal activity unrelated to undocumented status or the investigation of potential terrorist activity), or if “such disclosure is required by law.”[42]

Freedom of Information Law 

Disclosure of information held by the government is also governed by New York’s Freedom of Information Law (“FOIL”). While FOIL generally requires state and local agencies to make publicly available upon request all records not specifically exempt from disclosure by state or federal statute,[43] FOIL also mandates that an agency withhold such records where disclosure would “constitute an unwarranted invasion of personal privacy.”[44] Non-public information about an individual, such as home address, date and place of birth, or private telephone number, would likely be exempt from disclosure on personal privacy grounds.[45]

Law governing the federal government’s power to condition federal grants

States and localities have in the past faced threats to their federal funding for asserted violations of 8 U.S.C. § 1373, or other asserted hindrance to the enforcement of federal immigration law. The federal government provides New York state and its localities with numerous grants in areas ranging from education and health care to social services and criminal justice. Each grant is governed by different statutory and regulatory schemes. The requirements and provisions of those schemes may restrict the federal government’s ability to withhold funding and thus should be closely and individually analyzed.

Although the federal government has latitude to condition its funding to states and localities on their fulfillment of certain conditions, the U.S. Supreme Court has established some limitations on that authority. First, the federal government cannot use its spending power “to induce the States to engage in activities that would themselves be unconstitutional”; for example, it cannot condition a grant of federal funds on invidiously discriminatory state action.[46] Second, any funding conditions must be reasonably related to the federal interest in the program at issue.[47] Third, the condition must be stated “unambiguously” so that the recipient can “voluntarily and knowingly” decide whether to accept those funds and the associated requirements.[48] And finally, the amount of federal funding that a noncomplying state would forfeit cannot be so large that the state would be left with “no real option but to acquiesce” and accept the condition.[49]

Depending on the nature and amount of any federal funding cut, states and localities may be able to challenge the defunding on one or more statutory or constitutional grounds. However, such challenges have not always prevailed. For instance, in 2017, the federal government added conditions to the receipts of federal funds to support local law enforcement through the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG), including communicating certain citizenship and release date information to federal authorities, and giving federal authorities access to incarcerated undocumented individuals. Although some courts upheld challenges to these conditions,[50] the Second Circuit rejected such a challenge, finding no constitutional or statutory violation in the conditions.[51]

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Model sanctuary provisions

This Part identifies nine principles, derived from the legal landscape explained in the prior sections, and proposes model language that jurisdictions can use to enact local laws and/or policies to adopt those principles.

1. LEAs should not participate in certain activities for the purpose of enforcing federal immigration laws.
  1.  [The LEA] shall not stop, question, interrogate, investigate, or arrest an individual based solely on any of the following:
    1. Actual or suspected immigration or citizenship status; 
    2. Any actual or suspected civil violation of federal immigration laws; or
    3. A civil immigration warrant, administrative warrant, or an immigration detainer in the individual’s name, including those identified in the National Crime Information Center (NCIC) database.
  2.  [The LEA] shall not inquire about the immigration status of an individual, including a crime victim, a witness, or a person who calls or approaches the police seeking assistance, unless necessary to investigate criminal activity by that individual.
  3. [The LEA] shall not perform or support the functions of a federal civil immigration officer or otherwise engage in the enforcement of federal civil immigration law, whether on its own accord, pursuant to informal arrangements, under Section 1357(g) of Title 8 of the United States Code, or under any other law, program, regulation, or policy.

2. LEAs should hold an individual pursuant to a detainer request from federal immigration authorities only where there is a judicial warrant. An LEA may choose to notify federal immigration authorities of an individual’s release date, without extending that individual’s detention, where specific conditions are met.

  1. [The LEA] shall not hold, detain, or transfer custody of an individual for federal civil immigration enforcement or investigation purposes pursuant to a civil immigration detainer, or other warrant or request, from federal civil immigration authorities unless the request is accompanied by a judicial warrant.
  2. In the absence of a judicial warrant, [the LEA] may in its discretion determine to notify federal immigration authorities in advance of an individual’s release from custody, without extending their detention, if: 
    • (1) there is probable cause to believe that the individual has illegally re-entered the country after a previous removal or return as defined by 8 U.S.C. § 1326, and (2) the individual has been convicted of a specifically enumerated set of serious crimes under the New York Penal Law (e.g., Class A felony, attempt of a Class A felony, Class B violent felony, etc.) or (ii) a federal crime or crime under the law of another state that would constitute a predicate felony conviction, as defined under the New York Penal Law, for any of the preceding felonies; or
    • there is probable cause to believe that the individual has or is engaged in terrorist activity.

3. Absent a judicial warrant, LEAs should not provide non-public, sensitive information about an individual to civil immigration authorities.

  1. [The LEA] shall not provide federal civil immigration authorities with any non-public information about an individual—including but not limited to non-public information about an individual’s release, court appearance, home address, or work address—unless the request is accompanied by a judicial warrant.
  2. Nothing in this law prohibits any local agency from:
  • sending to or receiving from any local, state, or federal agency—as per 8 U.S.C. § 1373—(i) information regarding an individual’s country of citizenship or (ii) a statement of the individual’s immigration status; or
  • disclosing information about an individual’s criminal arrests or convictions, where disclosure of such information about the individual is otherwise permitted by state law or required pursuant to subpoena or court order; or
  • disclosing information about an individual’s juvenile arrests or delinquency or youthful offender adjudications, where disclosure of such information about the individual is otherwise permitted by state law or required pursuant to subpoena or court order.
  1. [The LEA] shall limit the information collected from individuals concerning immigration or citizenship status to that necessary to perform agency duties and shall prohibit the use or disclosure of such information in any manner that violates federal, state, or local law.

4. LEAs should not provide federal civil immigration authorities with access to individuals in their custody for questioning solely for immigration enforcement purposes.

[The LEA] shall not provide federal civil immigration authorities with access to an individual in their custody or the use of agency facilities to question or interview such individual if the sole purpose is enforcement of federal civil immigration law. [The LEA] shall not allow federal civil immigration authorities access to non-public areas of its facilities for civil immigration enforcement unless presented with a judicial warrant.

5. LEAs should protect the due process rights of persons in their custody who are subjects of federal immigration enforcement requests.

  1. [The LEA] shall not delay release from custody, on bail or otherwise, solely because of 
    1. an individual’s immigration or citizenship status, 
    2. any actual or suspected civil violation of federal immigration laws; or 
    3. a civil immigration warrant or other kind of federal immigration authorities’ request besides a judicial warrant, for the purposes of immigration enforcement (e.g. for notification about, transfer of, detention of, or interview or interrogation of that individual).
  2. Upon receipt of a civil immigration detainer, transfer, notification, interview or interrogation request, [the LEA] shall provide a copy of that request to the individual named therein or their counsel and inform the individual or their counsel whether [the LEA] will comply with the request before communicating its response to the requesting agency. 
  3. Individuals in the custody of [the LEA] shall be subject to the same booking, processing, release, and transfer procedures, policies, and practices of that agency, regardless of actual or suspected citizenship or immigration status or violations.

6. Local agency resources should not be used to create a federal registry based on race, gender, sexual orientation, religion, ethnicity, or national origin.

[Local agency] may not use agency or department resources including monies, facilities, property, equipment, or personnel to investigate, enforce, or assist in the investigation or enforcement of any federal program requiring registration of individuals on the basis of race, gender, sexual orientation, religion, ethnicity, or national origin.

7. Local agencies should limit collection of immigration-related information and ensure nondiscriminatory access to benefits and services.

  1. [Local agency] personnel shall not inquire about or request proof of a person’s citizenship, immigration status, or country of origin when providing services or benefits, except where necessary to administer a public program, benefit, or service, or where required by law.
  2. [Local agencies] shall have a formal Language Assistance Policy for individuals with Limited English Proficiency and provide interpretation or translation services consistent with that policy.

8. LEAs should collect and publicly report aggregate data, containing no personal identifiers, regarding their receipt of, and response to, federal civil immigration authorities’ requests.

  1. [The LEA] shall record, solely to create the reports described in subsection (b) below, the following for each immigration detainer, notification, transfer, interview, or interrogation request received from federal civil immigration authorities:
  • The subject individual’s race, gender, and age;
  • Date and time that the subject individual was taken into LEA custody, the location where the individual was held, and the arrest charges;
  • Date and time of [the LEA’s] receipt of the request;
  • The requesting agency;
  • The nature of the request;
  • Immigration or criminal history indicated on the request form, if any;
  • Whether the request was accompanied by any documentation regarding immigration status or proceedings;
  • Whether there was a judicial warrant;
  • Whether a copy of the request was provided to the individual and, if yes, the date and time of notification;
  • Whether the individual requested to confer with counsel regarding the request;
  • [The LEA’s] response to the request, including a decision not to fulfill the request;
  • If applicable, the date and time that federal authorities took custody of, or were otherwise given access to, the individual; and
  • The date and time of the individual’s release from [the LEA’s] custody.
  1. [The LEA] shall provide semi-annual reports to the [designate one or more public oversight entity] and make publicly available the information collected in subsection (a) above in an aggregated form that is stripped of all personal identifiers in order that [the LEA] and the community may monitor [the LEA’s] compliance with all applicable law

9. LEAs should not use federal immigration officers as interpreters for law enforcement matters, including stops, questioning, interrogation, or arrest.

[The LEA] shall not use federal immigration officers as interpreters for law enforcement matters including stops, questioning, interrogation, or arrest.

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Appendix A

Appendix B

Selection of current New York state and local laws and policies related to participation in immigration enforcement:

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[1] Jurisdictions that enact such laws or policies have at times been referred to as “sanctuary” jurisdictions.  However, “sanctuary” is not a legal term and does not have any fixed or uniform legal definition.

[2] See Arizona v. United States, 567 U.S. 387, 407 (2012) (citation omitted).

[3] “LEAs” include, among others, local police personnel, sheriffs’ department personnel, local corrections and probation personnel, school safety or resource officers, and school police officers. 

[4] People ex rel. Wells v. DeMarco, 168 A.D.3d 31 (2d Dep’t 2018).

[5] The Tenth Amendment to the United States Constitution provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const., Am. X.

[6] New York v. United States, 505 U.S. 144, 188 (1992). The compelled conduct invalidated in New York v. United States was a federal statutory requirement that states enact legislation providing for the disposal of their radioactive waste or else take title to that waste. See id. at 152-54.

[7] Printz v. United States, 521 U.S. 898, 935 (1997). The compelled conduct invalidated in Printz was the Brady Handgun Violence Prevention Act’s requirement that state and local law enforcement officers perform background checks on prospective firearm purchasers. See id. at 903-04.

[8] See id. at 904-05 (allowing county-level law enforcement officials to raise Tenth Amendment claim); see also Lomont v. O’Neill, 285 F.3d 9, 13 (D.C. Cir. 2002) (same); City of New York v. United States, 179 F.3d 29, 34 (2d Cir. 1999) (city may raise a Tenth Amendment claim), cert. denied, 528 U.S. 1115 (2000). 

[9] See Lomont, 285 F.3d at 14.

[10] N.Y. Const., Art. IX, § 2(c)(ii)(10).

[11] Municipal Home Rule Law § 10(1)(ii)(a)(12).

[12] See, e.g., Eric M. Berman, P.C. v. City of New York, 25 N.Y.3d 684, 690 (2015).

[13] Such detainers are issued pursuant to 8 C.F.R. § 287.7. See DHS Form I-247D (“Immigration Detainer—Request for Voluntary Action”) (5/15) .

[14] See Form I-200, Warrant for Arrest of Alien, or Form I-205. Warrant of Removal/Deportation. Examples are also provided in Appendix A.

[15] The New York State Constitution has a provision similar to the Fourth Amendment: Article I, § 12, which provides that “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

[16] Wells, 168 A.D.3d at 39-40. An arrest or seizure takes place when “a reasonable person would have believed he was not free to leave” the presence of police. Florida v. Royer, 460 U.S. 491, 502 (1983); see also People v. Yukl, N.Y.2d 585, 589 (1969). Such a detention may occur within or outside the jail setting and may be prolonged or brief.

[17] See id. 

[18] Id. at 45-46. Absent a judicial warrant, a police officer may arrest a person if they have reasonable cause to believe that person committed an offense (if committed in the officer’s presence) or committed a crime (whether committed in their presence or otherwise). N.Y. Crim. Pro. Law § 140.10(1). “Reasonable cause” and “probable cause,” the term used in federal jurisprudence, are equivalent standards. See People v. Valentine, 17 N.Y.2d 128, 132 (1966). “Probable cause” means more than mere suspicion or that something is at least more probable than not. Whereas a “crime” is a misdemeanor or a felony, an “offense” is defined as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of [New York] state or by any law, local law or ordinance of a political subdivision of this state.” Penal Law § 10.00(1), (6).

[19] For example, a “Warrant of Removal” (Form I-205) is issued by immigration officials, and not by a neutral factfinder based on a finding of probable cause that the individual committed a crime. See 8 C.F.R. § 241.2. In addition, DHS Form I-247D (“Immigration Detainer—Request for Voluntary Action”) (5/15), includes a checkbox for ICE to designate that “Probable Cause Exists that The Subject is a Removable Alien.” But it is not a crime to be in the 

U.S. unlawfully. See supra at __. Thus, ICE’s checking of a “probable cause” box on the I-247D does not constitute probable cause to believe that an individual has committed a crime.

[20] Wells, 168 A.D.3d at 42-43; see also Dunaway v. New York, 442 U.S. 200, 213 (1979) (noting general rule that “Fourth Amendment seizures are ‘reasonable’ only if based on probable cause”). 

[21] Wells, 168 A.D.3d at 42-43. 

[22] See, e.g., Gerstein v. Pugh, 420 U.S. 103, 111-12 (1975). 

[23] N.Y. Crim. Pro. Law § 520.15; see also Arteaga v. Conner, 88 N.Y. 403, 408 (1882).

[24] See, e.g., Santos v. Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 464-65 (4th Cir. 2013); Miranda-Olivares v. Clackamas Cnty., 12-CV-02317, 2014 U.S. Dist. LEXIS 50340, at *32-33 (D. Or. April 11, 2014); see also Gerstein, 420 U.S. at 111-12 (discussing underlying basis of Fourth Amendment’s probable cause requirement).

[25] See, e.g., Santos, 725 F.3d at 464-66, 470 (holding that locality was not entitled to qualified immunity in § 1983 lawsuit seeking, inter alia, compensatory damages, where deputies violated arrestee’s constitutional rights by detaining her solely on suspected civil violations of federal immigration law).

[26] See, e.g., Orellana-Castaneda v. County of Suffolk, No. 2:17-cv-04267 (E.D.N.Y.) (cross-motions for summary judgment pending on plaintiff class’s claims that LEA violated plaintiffs’ constitutional rights through policy of honoring ICE detainers); Onadia v. City of New York, No. 300940/2010e (Bronx Sup. Ct.) (recently settled class action challenge to detention of people at Rikers Island past their scheduled release date based on requests by federal immigration authorities prior to December 21, 2012).

[27] See Letter from New York Attorney General Eric T. Schneiderman to New York State Police Chiefs and Sheriffs (Dec. 2, 2014).

[28] This provision is codified at 8 U.S.C. § 1357(g).

[29] Wells, 168 A.D.3d 31 at 49.

[30] Id.

[31] Id.

[32] Civ. Rights Law § 28. State-level Executive Order 170 addresses the conduct of state officers and employees, including law enforcement officers. It prohibits state law enforcement officers from using resources, equipment, or personnel for the purpose of detecting and apprehending any individual suspected or wanted only for violating a civil immigration offense. Such officers have no authority to take any police action solely because the person is undocumented. This includes identifying, questioning, detaining, or demanding to inspect federal immigration documents. Executive Order 170.1 provides that civil arrests by federal immigration authorities may only be executed within state facilities when accompanied by a judicial warrant or order authorizing the custody unless the civil arrest is related to a proceeding within the facility.

[33] State Executive Order 170 prohibits state officers or employees, including state law enforcement officers, from disclosing information to federal immigration authorities for the purpose of federal civil immigration enforcement, unless required by law. It provides that state law enforcement officers shall not inquire about immigration status unless relevant to an investigation of the individual’s illegal activity.

[34] H.R. Rep. No. 104-725, Subtitle B, § 6, at 383 (1996).

[35] 8 U.S.C. § 1373(a)-(b) (emphasis added).

[36] Id. § 1373(b) (emphasis added). 

[37] Under a New York City Executive Order, for example, officers and employees (other than law enforcement officers) are not permitted to inquire about a person’s immigration status “unless: (1) Such person’s immigration status is necessary for the determination of program, service or benefit eligibility or the provision of . . . services; or (2) Such officer or employee is required by law to inquire about such person’s immigration status.” N.Y.C. Exec. Order No. 41, § 3(a) (2003).

[38] New York, 505 U.S. at 188; Printz, 521 U.S. at 916. 

[39] City of New York, 179 F.3d at 35-37. 

[40] Id.

[41] Id. at 36, 37.

[42] N.Y.C. Exec. Order No. 41, Preamble, § 2 (2003).

[43] Public Officers Law § 87(2).

[44] Id. § 89(2)(b); see also In re Massaro v. N.Y. State Thruway Auth., 111 A.D.3d 1001, 1003-04 (3d Dep’t 2013) (records containing employee names, addresses, and Social Security numbers subject to personal privacy exemption under FOIL).

[45] These examples are illustrative, not exhaustive.

[46] South Dakota v. Dole, 483 U.S. 203, 210 (1987).

[47] In Dole, the Supreme Court held that Congress could permissibly withhold 5% of certain highway funds from states that failed to raise their drinking age to 21 because raising the drinking age was “directly related to one of the main purposes for which highway funds are expended,” namely “safe interstate travel.” Id. at 208-209.

[48] See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).

[49] See, e.g., Nat’l Fed. of Ind. Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (2012); Dole, 483 U.S. at 209.

[50] See, e.g., City of Chicago v. Barr, 961 F.3d 882 (7th Cir. 2020); City of Providence v. Barr, 954 F.3d 23 (1st Cir. 2020); City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019); City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019).

[51] New York v. U.S. Dep’t of Justice, 951 F.3d 84 (2d Cir. 2020).