AG James Issues Additional Legal Guidance for ICE Civil Detention Requests

Guidance Supports Decision Confirming that NY Law Bars State and Local
Law Enforcement from Arresting Individuals for Civil Immigration Violations

NEW YORK – Attorney General Letitia James today issued a supplement to her office’s guidance to help ensure local governments and law enforcement agencies comply with state law as federal immigration enforcement efforts persist during the coronavirus disease 2019 (COVID-19) public health crisis.

More than a year ago, a New York appellate court confirmed that New York law bars state and local law enforcement officers from arresting individuals for civil immigration violations without a judicial warrant. That decision, The People, ex rel. Jordan Wells, on behalf of Susai Francis v. DeMarco (“Francis”), provided clarity regarding the limits of federal reach in local jurisdictions, but recent complaints received by the Attorney General’s office indicate confusion about its application.

“New York law does not authorize state and local law enforcement to arrest individuals for civil immigration violations,” said Attorney General James. “My office vehemently opposes any attempt to use local law enforcement as an extension of ICE, and we will continue to work with municipalities throughout New York to protect the public while building trust and partnership with immigrant communities.”

The additional guidance reiterates these holdings and provides additional examples of Francis violations, including: 

  • 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 U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection (CBP) officers arrive to question and/or arrest the occupants.

The Attorney General issued the original legal guidance in January 2017. This guidance provided clarity to New York law enforcement agencies with respect to limiting their participation in federal immigration enforcement activities in several ways, including: (1) not enforcing non-judicial civil immigration warrants issued by ICE or CBP; (2) protecting New Yorkers’ Fourth Amendment rights by denying federal requests to hold uncharged individuals in custody without a judicial warrant or probable cause to believe an individual has committed a crime; (3) limiting access of ICE and CBP agents to individuals currently in custody; and (4) limiting information gathering and reporting that will be used exclusively for federal immigration enforcement.

In Francis, a New York resident challenged his detention by a local sheriff’s department for civil immigration violations. The New York resident had been detained on the purported authority of a detainer request issued by ICE and an accompanying administrative — and not judicial — warrant. The Second Department ruled that an arrest occurs when state and local authorities hold an individual in response to an ICE detainer. The court further held that New York law does not authorize state and local authorities to arrest persons whose sole alleged infraction is being in the United States without documentation, conduct that federal immigration law treats as a civil violation. In fact, New York’s Criminal Procedure Law permits police officers to arrest a person only in response to a judicially issued warrant or for a “crime” (a misdemeanor or felony) or an “offense” (a crime or any other conduct punishable by imprisonment or a fine).