State and Local Law Enforcement Prohibited from Making Civil Immigration Arrests

In People ex rel. Wells o/b/o Susai Francis v. DeMarco (2d Dept. 11/14/2018), the Second Department unanimously held that New York state and local law enforcement officers are not authorized under New York law to make arrests for civil immigration violations.

The factual background is somewhat complicated. The petitioner, Susai Francis, is an Indian citizen. He entered the United States via New York City in 1996 on a B2 visitor visa, which allowed him to remain in the United States for a period not to exceed six months. Francis did not leave the United States when the visa expired. Instead, he has remained on Long Island for more than two decades and has two children, one of whom is a citizen of the United States. On March 25, 2015, Francis was served with a notice to appear in Immigration Court, and he is currently the subject of removal proceedings.

On November 28, 2016, Francis was charged in Suffolk County with misdemeanor Criminal Contempt 2º (Penal Law § 215.50) for violation of a Family Court order of protection. He was released on his own recognizance. Francis was arrested again on June 14, 2017, this time in Nassau County, on two misdemeanor counts: DWI (VTL § 1192) and driving an uninsured vehicle (VTL § 319). Francis was held at the Nassau County Correctional Center.

As per Nassau County Police Department protocol, Francis’ fingerprints were taken and submitted to federal databases upon his arrest. He was identified as an Indian citizen who was unlawfully present in the United States. United States Immigration and Customs Enforcement Deportation Officer Julissa Iniguez issued both a detainer and an arrest warrant, which were provided to the Nassau County Police Department. The detainer, addressed to the Nassau County Police Department, requested that the Police Department notify ICE as soon as practicable before Francis was released from custody, on at least 48 hours’ notice, if possible. The warrant, addressed to any immigration officer authorized pursuant to sections 236 and 287 of the Immigration and Nationality Act (8 USC §§ 1226, 1357) and 8 CFR part 287 to serve warrants of arrest for immigration violations, commanded that Francis be arrested and taken into custody for the purposes of removal proceedings.

On December 4, 2017, Francis pleaded guilty in Nassau County District Court to one count of misdemeanor DWI. He was then transferred from the Nassau County Correctional Center (NCCC) to the Suffolk County Correctional Facility (SCCF) in Riverhead, which is operated by the Sheriff of Suffolk County, for completion of proceedings on the Suffolk County criminal charge. The ICE detainer and arrest warrant were transferred along with him.

On December 11, 2017, Francis pleaded guilty in Suffolk County District Court to one count of Disorderly Conduct. He was sentenced to time served. However, Francis was not released from custody and was, instead, returned to the SCCF.

In September 2014, the Sheriff of Suffolk County established a policy that an inmate was not to be held in custody solely on the basis of an ICE detainer. Instead, an inmate subject to an ICE detainer would be sent to court and, in the event that all local charges were disposed of, the inmate would not be returned to the correctional facility. The inmate would be free to leave on his or her own directly from the courthouse, just as inmates who are not subject to ICE detainers are treated.

However, on December 2, 2016, the Sheriff issued a new policy under which inmates subject to either an ICE detainer accompanied by a United States Department of Homeland Security (hereinafter DHS) Warrant for Arrest of Alien, and/or DHS Warrant of Removal/Deportation, are to be held for up to 48 hours after the time they would otherwise have been released, with ICE to be notified immediately. 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. Once the paperwork is “re-written,” the Sheriff’s Office regards the inmate as being in the custody of ICE and places the inmate in jail cells at the SCCF that are rented by ICE from the Sheriff.

Francis’ case was handled in accordance with the revised policy. Following the conclusion of his court proceeding, at which he was sentenced to time served, he was handcuffed and taken to a courthouse holding cell by members of the Sheriff’s Office and was thereafter returned to the SCCF. Upon his return to the SCCF, Francis’s paperwork was “re-written” from being an “adult male misdemeanor” case to be being an “adult male warrant” case based on the ICE warrant, and Francis was regarded by the Sheriff as being in the custody of ICE. Francis was placed in a jail cell rented by ICE.

Jordan Wells, an attorney with the New York Civil Liberties Union Foundation, filed a petition for a writ of habeas corpus. An order to show cause was signed by a Justice of the Appellate Division, Second Department on December 11, 2017, the day that Francis was detained notwithstanding the termination of the state criminal action against him.

On December 13, 2017, ICE agents retrieved Francis from the SCCF and transferred him to a long-term ICE detention facility. The Appellate Division, Second Department invited the parties to file supplemental pleadings and briefs and also invited the New York State Attorney General and the United States Department of Justice to submit memoranda as amici curiae. As of January 5, 2018, Francis was being held by ICE at the Bergen County Jail in Hackensack, New Jersey, pending removal proceedings in Immigration Court.

At the outset, Justice Scheinkman dealt with the question of whether or not the case was moot, given that Francis had since been transferred to true ICE custody in an out-of-state facility. Accepting the petitioner’s arguments and applying a well-known exception to the mootness doctrine, Justice Scheinkman found that this issue is likely to reoccur, will typically evade review in the courts, and is substantial or novel. He noted that ICE submitted nearly 800 detainer requests to the Nassau and Suffolk County Sheriff’s offices in 2017 and concluded that hundreds of inmates could be affected by the policy every year.  Justice Scheinkman also noted that the underlying controversy still persisted, with the Sheriff and U.S. Department of Justice arguing for the policy’s lawfulness and the petitioner, New York State Attorney General, National Immigrant Justice Center, and “a coalition of law professors” arguing that the policy was unlawful.

Justice Scheinkman began his analysis by stating that there is no question that Francis’ continued detention after his sentence constituted an arrest under both New York and Federal law. Francis would normally have been entitled to release after receiving the sentence of time served, but instead, he was subject to a new arrest and seizure when he was “re-written” as an “adult male warrant,” based on the ICE detainer and pursuant to the policy at issue.

Justice Scheinkman continued his analysis by noting that ICE detainers and warrants are civil and administrative in nature, rather than criminal. This is significant because the civil ICE arrest warrant and detainer were the basis for Francis’s continued detention by the Sheriff at the SCCF, notwithstanding that Francis had completed his sentence on the state criminal charges.

Justice Scheinkman wrote that New York statutory law recognizes three main types of warrants in criminal actions: (1) a “warrant of arrest” (CPL 120.10); (2) a “superior court warrant of arrest” (CPL 210.10); and (3) a “bench warrant” (CPL 530.70). In addition to being issued in criminal, as opposed to civil, actions, all three warrant types previously noted are issued by courts of law. The ICE warrant of arrest does not fall within any of the definitions of warrants in the Criminal Procedure Law.

Justice Scheinkman distinguished ICE warrants from New York State warrants in civil matters. Where New York law authorizes warrants in civil cases, those warrants are issued by a judicial or quasi-judicial officer of the court, not an administrative agency. He also distinguished ICE warrants from parole warrants because parolees have been convicted and sentenced and are not truly “at liberty,” but are serving some of their sentence outside prison, and re-taking a parolee is not an arrest for Fourth Amendment purposes.

Justice Scheinkman reasoned that the Sheriff lacked New York statutory authority to effectuate an arrest pursuant to the ICE warrant because that warrant was not issued by a judge or court. Moreover, no New York statute authorizes state and local law enforcement to effectuate warrantless arrests for civil immigration law violations.

Under New York law, police may only make a warrantless arrest 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 Penal Law defines an “offense” as “conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state” (Penal Law § 10.00[1]). The Penal Law also defines a crime as a misdemeanor or a felony (see Penal Law § 10.00[6]).

Because immigration violations are not crimes, the provisions regarding warrantless arrests under the Criminal Procedure Law do not apply. Removable aliens are subject to deportation, not a term of imprisonment or fine. The Sheriff’s office who arrested Francis did not claim that he committed any offense or crime, state or federal, so they lacked the authority under the New York statutes to arrest him without a warrant.

Finally, Justice Scheinkman concluded that neither the Federal Rules of Criminal Procedure nor the Immigration and Naturalization Act authorize New York state and local law enforcement to effectuate arrests which state law does not authorize.  (BJD)

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