Testimony Regarding Immigration Detainers

October 15, 2014

I. Introduction
The New York Civil Liberties Union (“NYCLU”) respectfully submits the following testimony in support of Intros No. 486 and 487, legislation that will put New York City at the forefront of a national movement to disentangle local law enforcement from immigration enforcement. With 50,000 members and supporters, the NYCLU is the foremost defender of civil liberties and civil rights for all New Yorkers, including immigrants, across the state. The NYCLU strongly supports this legislation, which will end the practice of unconstitutionally imprisoning people without a judicial warrant so that federal agencies can investigate them for immigration purposes.

Immigration enforcement is the responsibility of federal immigration authorities, not local law enforcement, whose job is to protect and serve all residents and visitors, regardless of immigration status. By prohibiting the NYPD and Department of Corrections (“DOC”) from honoring detention requests (“detainers”) and other administrative requests issued by federal immigration agencies in the absence of a judicial warrant, New York City will join Boston, Los Angeles, and Chicago, as well more than 225 other local law enforcement agencies nationwide.¹

This legislation also separates local New York City authorities from federal immigration enforcement by evicting Immigration and Customs Enforcement (ICE) from its office at Rikers Island, and prohibiting the Department of Correction from expending resources to enforce civil immigration laws. With the enactment of Intros No. 486 and 487, New York City will reject the role of enforcing immigration laws and will become a leader in a national movement to treat immigrants in accordance with constitutional standards, simultaneously promoting the safety and trust of New York City’s immigrant communities and preserving the City’s financial resources.

II. The Problem with ICE Detainers
Since the Bush administration, the federal government has aggressively implemented a series of immigration enforcement programs that rely on local law enforcement agencies to enforce federal immigration laws. ICE detainers, or “Forms I-247” are at the center of one of the largest of these programs: requests from ICE that a local law enforcement agency (“LEA”) detain an individual on its behalf for up to 48 hours (plus weekends and holidays) after the LEA’s legal authority has expired.

From the beginning, the NYCLU has had serious concerns about the constitutionality of this practice. Detainers can be issued without judicial oversight simply because ICE has “determined that there is reason to believe that the individual is an alien subject to removal from the United States”– far short of alleging, much less demonstrating, probable cause.² When a person is detained pursuant to an arrest or other lawful basis (e.g., bench warrant, parole violation), once the state no longer has a legal basis for the detention, the individual is entitled to be released. A state or local law enforcement entity that chooses to keep an individual in detention beyond that point engages in a new seizure for Fourth Amendment purposes. This new seizure must be supported by a separate showing of probable cause. To deprive a person of liberty based solely on an ICE detainer, unsupported by a judicial warrant, solely because the government seeks to investigate that person’s immigration status, violates the Fourth Amendment, due process and fundamental principles of justice.

In addition to the constitutional concerns, ICE detainers are a financial burden, increasing the overall operating costs for local jails. Even though ICE detainers often prolong the time that individuals spend in the custody of LEAs, the federal government typically assumes “no fiscal obligation” to pay for the costs of holding individuals pursuant to detainers.³ This includes the 48-hour period after an individual would otherwise be entitled to be released, but also indirectly during the pre-trial and sentence phases of detention. Moreover, ICE detainers can discourage judges from setting bail, and often have the devastating impact of disqualifying detainees from rehabilitation programs that would shorten or avoid detention.⁴

Finally, ICE detainers undermine the relationship between immigrants and their local government. When the NYPD becomes — and is seen by the community as an agent of — federal immigration enforcement, immigrant communities may understandably avoid contact, for fear of deportation. This may result in unwillingness to report when they have witnessed or been a victim of a crime.⁵ When community members don’t trust law enforcement, both the community and police are at increased risk.

Given this constitutional and practical context, the NYCLU supported Local Law 62 of 2011 and Local Laws 21 and 22 of 2013, laws that City Council passed that enumerated certain situations in which DOC and the NYPD would decline to honor ICE detainers.⁶ While not addressing the constitutional questions involved, these laws sought to limit ICE detainers and to begin to repair the damage to community trust caused by the City’s assistance in federal immigration actions.

Although the city has previously refused to comply with ICE detainers in certain statutorily enumerated situations, it has nonetheless continued to enforce the vast majority of detainers. After the 2011 law established limited criteria for refusing to comply with ICE detainers, DOC reported a compliance rate of approximately 75-80%.⁷ Under the 2013 law, which expanded those criteria, the DOC complied with approximately 60-65% of ICE detainers, holding an average of 200 individuals per month beyond the time when such individuals would otherwise have been released (for the three months for which data is available). Of those detained following the 2013 reforms, approximately two-thirds had no misdemeanor or felony conviction, and less than 4% had felony convictions.⁸ Though ICE detainers have been touted as taking dangerous immigrants off the streets, they instead almost exclusively have been targeted at low level offenders.

III. Recent Federal Rulings on ICE Detainers
The principle that LEAs should not comply with any detainer that is not accompanied by a judicial determination of probable cause has now been upheld by multiple federal courts that have held local authorities liable for constitutional violations for holding immigrant in custody exclusively based on ICE detainers.

There is no longer any debate about whether compliance with detainers is mandatory. In March of this year, in Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014), the U.S. Court of Appeals for the Third Circuit held that ICE detainers are mere requests, a holding which ICE itself has reaffirmed.⁹ As a result, courts have also ruled that a LEA may not rely on an ICE detainer to shield it from liability for an individual’s unlawful detention. For example, in Galarza, since the defendant, a Pennsylvania county, “was free to disregard the ICE detainer,” the court held that it “cannot use as a defense that its own policy did not cause the deprivation of Galarza’s constitutional rights.”¹⁰ For the same reason, another court recently permitted a plaintiff held on an ICE detainer to proceed with claims against the director of the Rhode Island Department of Corrections.¹¹

In April 2014, the U.S. District Court for the District of Oregon, in Miranda-Olivares v. Clackamas County, found the county liable for damages for violating a plaintiff’s constitutional rights, by holding her in the local jail beyond the time when she otherwise would have been released.¹² “Prolonged detention after a seizure, such as full custodial confinement without a warrant, must be based on probable cause,” the court stated. “[I]t was not reasonable for the Jail to believe it had probable cause to detain Miranda–Olivares based on the box checked on the ICE detainer.” Thus, the Miranda-Olivares court made clear to LEAs around the country that when they held individuals pursuant to ICE detainers, they did so at their own risk.¹³

IV. National and Statewide Reactions
In the wake of these legal decisions, in the spring of this year, LEAs across the country began refusing to comply with ICE detainers without a judicial finding of probable cause, citing constitutional concerns and the threats of civil liability. All told, more than 225 jurisdictions nationwide (including the entire state of Colorado), now refuse to comply with ICE detainers if they are not accompanied by a judicial warrant.¹⁴ As noted in The Los Angeles Times, this has affected the entire landscape of immigration enforcement: “These ‘holds’ created a pipeline for the deportation of thousands of people from the United States in the last decade. Now, that enforcement tool is crumbling.”¹⁵ This is of the utmost importance in a city like New York, with large and vibrant immigrant communities, and a reputation as a “sanctuary city.”

Meanwhile, in New York State, local law enforcement agencies are increasingly abandoning the practice of complying with detainers. In May of this year, the NYCLU wrote to the New York State Sheriff’s Association and to every sheriff in the state, advising them that honoring ICE detainers without judicial warrants was illegal and opened them up to potential liability. Citing the NYCLU’s correspondence, the Sheriffs’ Association recommended to its members in June that detainees no longer be held in custody solely due to an ICE detainer: “jail inmates who are held in custody solely by virtue of an ICE detainer are being held illegally, in violation of their 4th Amendment rights protecting them from unreasonable searches and seizures,” the Association wrote. “Furthermore, since ICE detainers are requests that are not legally binding, counties and Sheriffs can be held liable for complying with them and holding an inmate for longer than they would otherwise be authorized to do.”¹⁶

Currently at least 40 of the 57 counties in the state, outside of the five boroughs, have taken the advice of the NYCLU and the New York State Sheriff’s Association and now refuse to honor ICE detainers unless they are accompanied by judicial warrants.¹⁷ With the passage of Intros No. 486 and 487, New York City will join the vast majority of New York State counties, by having both the NYPD and the DOC refuse to honor ICE detainers unless they are accompanied with a judicial warrant.¹⁸

V. ICE on Rikers Island
With these bills, New York City is also on the verge of changing its entire relationship with immigration enforcement by finally limiting ICE agents’ access to the facilities on Rikers Island. In particular, under Int. 486, DOC personnel will no longer spend any time or resources disclosing information about detainees’ incarceration status, release dates, or court appearance dates to federal immigration authorities, nor will it allow ICE officials to maintain a physical presence at the jail.¹⁹

This is a landmark step, given that since at least 2003, the DOC has allowed ICE to maintain a presence on Rikers Island through the “Criminal Alien Program” (“CAP”). At Rikers Island, ICE has maintained a physical office staffed by agents, who hold daily interviews with detainees whom ICE suspects are undocumented immigrants, or documented immigrants who may become eligible for deportation because of the criminal offense with which they are charged. Under CAP, ICE officers have been given access to lists of inmates and often select those who are foreign-born or who have Latino-sounding last names for interview. CAP, and not the detainer system, is still the primary program under which individuals in the criminal justice system are identified for removal.²⁰

Under CAP, ICE officers have been known to threaten detainees with indefinite detention or permanent expulsion, if they don’t sign forms for voluntary departure.²¹ With deportations at an all-time high, the physical presence of and cooperation with ICE through CAP sends the message that local law enforcement is aligned with ICE and should not be trusted. Ending DOC’s special partnership through CAP should reduce the incidence of abuse and the City’s complicity in those abuses.

VI. Conclusion and Next Steps
The NYCLU commends City Council for its leadership on Intros. No. 486 and 487: with these bills, New York City will end the double standard that had resulted in the unlawful detention of too many New York City immigrants for too long, and establish a groundbreaking new model for LEAs across the country by refusing to allow ICE to enjoy special access to local resources or facilities.²²

As New York City becomes a leader in this nationwide movement for reform, the Council should continue to monitor and review both its implementation and federal immigration policies and practices. Moving forward, the Council may need to adopt further measures that become necessary to ensure the fair and respectful treatment of immigrant New Yorkers and foster an atmosphere of trust between immigrant communities and the police.²³

We thank the Council for providing this opportunity to share our strong endorsement of Intros. No. 486 and 487. The NYCLU looks forward working with the Council in an ongoing effort to maintain our identity as a sanctuary city. We applaud the city for addressing the most fundamental issues at hand: community trust, public safety, and respect for the constitutional rights of all New Yorkers.

Footnotes

¹ See Cindy Carcamo, “More Jails Refuse to Hold Inmates for Federal Immigration Authorities,” L.A. TIMES, Oct. 4, 2014, available at http://www.latimes.com/nation/immigration/la-na-ff-immigration-holds-20141005-story.html

² Immigration Detainer– Notice of Action Form I-247, available at https://www.ice.gov/doclib/secure-communities/pdf/immigration-detainer-form.pdf (last accessed Oct. 9, 2014).

³ See 8 C.F.R. § 287.7(e).The one exception is the State Criminal Alien Assistance Program (SCAAP), which provides payments to states and localities that incur correctional officer salary costs for incarcerating undocumented criminal aliens with at least one felony or two misdemeanor convictions for at least four consecutive days. See Office of Justice Programs, Bureau of Justice Assistance, State Criminal Alien Assistance Program, available at https://www.bja.gov/Funding/14SCAAP_Guidelines.pdf (last visited Oct. 9, 2014).

⁴ See e.g., AARTI SHAHANI, JUSTICE STRATEGIES, NEW YORK CITY ENFORCEMENT OF IMMIGRATION DETAINERS: PRELIMINARY FINDINGS 4 (2010) (“Noncitizens with an ICE detainer are effectively barred from pre-trail release on bail, no matter the offense level.”); THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, IMMIGRATION DETAINERS NEED NOT BAR ACCESS TO JAIL DIVERSION PROGRAMS 3 (2009) (“While immigration detainers are not the equivalent of a final removal order and not all individuals with detainers will necessarily be removed . . . many in the criminal justice system will assume a detainer cannot be lifted and therefore disqualifies an immigrant from participating in a jail diversion program, no matter how much he or she would benefit or how much the savings would be to city and state resources.”).

⁵ See e.g., Rebecca T. Wallace, “The Terrible Toll of ICE Detainers,” Jun. 6, 2014, available at https://www.aclu.org/blog/immigrants-rights-racial-justice/terrible-toll-ice-detainers.

⁶ See Local Law No. 62 Int. No. 656-A (2011); Local Law No. 21 Int. No. 982-A (2013); Local Law No. 22 Int. No. 989-A (2013).

⁷ See New York City Department of Corrections, SUMMARY OF DISCHARGES OF INMATES WITH FEDERAL IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE) DETAINERS, available at http://www.nyc.gov/html/doc/html/about/ ICE_Report_2013.pdf (last accessed Oct. 9, 2014).

⁸ Id.

⁹ See e.g., Immigration and Customs Enforcement, “Ice Detainers: Frequently Asked Questions,” available at https://www.ice.gov/news/library/factsheets/detainer-faqs.htm. (last accessed Oct. 9, 2014) (“An immigration detainer serves three key functions: 1) to notify an LEA that ICE intends to assume custody of an alien in the LEA’s custody once the alien is no longer subject to the LEA’s detention; 2) to request information from an LEA about an alien’s impending release so ICE may assume custody before the alien is released from the LEA’s custody; and 3) to request that the LEA maintain custody of an alien who would otherwise be released for a period not to exceed 48 hours (excluding Saturdays, Sundays, and holidays) to provide ICE time to assume custody.” (emphasis added).

¹⁰ Galarza, 745 F.3d at 645.

¹¹ See Morales v. Chadbourne, 2014 WL 554478 (D.R.I. Feb. 12, 2014).

¹² Miranda-Olivares v. Clackamas County, 2014 WL 1414305, at *11 (D. Or. Apr. 11, 2014).

¹³ On October 1, 2014, the Northern District of Illinois also granted class certification in a federal class action lawsuit challenging the federal government’s use of detainers to hold immigrants in the custody of LEAs. The class certification grant could affect all detainers originating from the Chicago ICE field office, which issues detainers against individuals in 30 states. See Jimenez Moreno et al v. Napolitano et al, 11-cv-05452 (N.D. Ill). See also Press Release, National Immigrant Justice Center, “Federal Court Certifies Class Action Challenging Immigration Detainers,” Oct. 1, 2014, available at http://www.immigrantjustice.org/press_releases/federal-court-certifies-class-action-challenging-immigration-detainers.

¹⁴ See Carcamo, supra note 1. See also Press Release, The American Civil Liberties Union, “All Colorado Jails Now Reject Federal Immigration Detainers,” Sept. 18, 2014, available at https://www.aclu.org/immigrants-rights-prisoners-rights/all-colorado-jails-now-reject-federal-immigration-detainers.

¹⁵ Id.

¹⁶ The New York Civil Liberties Union, “NY Sheriffs Stop Unlawfully Jailing Immigrants Thanks to NYCLU Advocacy,” Oct. 9, 2014, available at http://www.nyclu.org/news/ny-sheriffs-stop-unlawfully-jailing-immigrants-thanks-nyclu-advocacy. See also Kirk Semple, New York State Sheriffs Shying Away From Immigration Detention,” THE N.Y. TIMES, Jul. 30, 2014, available at http://www.nytimes.com/2014/07/31/nyregion/new-york-state-sheriffs-shying-away-from-immigration-detention-.html?_r=0.

¹⁷ See NYCLU Phone Conversations with New York State Sheriffs, June-September 2014.

¹⁸ Intro No. 487 has one exception for the NYPD: it may honor a detainer if the detainee “A. has been convicted of a serious or violent crime, or is identified as a possible match in the terrorist screening database, and B. has previously been deported.” Intro No. 487 §6(2)(i)(2)(A)-(B).

¹⁹ Intro No. 486 includes a few exceptions to this rule: communication or response to ICE can occur if it “(i) relates to a person convicted of a violent or serious crime or identified as a possible match in the terrorist screening database; (ii) is unrelated to the enforcement of civil immigration laws; or (iii) is otherwise required by law.” And immigration officials can maintain a physical presence on Riker’s Island only to the extent that “the mayor may, by executive order, authorize federal immigration authorities to maintain an office or quarters on such land for purposes unrelated to the enforcement of civil immigration laws. See Intro No. 486, § 4(h)(1)-(2).

²⁰ Immigrant Legal Resource Center, CAP ADVOCACY GUIDE, available at http://www.ilrc.org/ files/documents/cap_advocacy_guide.pdf (last accessed Oct. 9, 2014).

²¹ Id.

²² See Carcamo, supra note 1.

²³ The City Council should review the detainer policies and practices of all other city agencies that might be asked to hold an individual based solely on an ICE request. Department of Probation (DOP) officials have recently informed advocates that it has stopped honoring ICE requests, though it did honor those requests in the past. Temporarily detaining a probationer until ICE arrives to pick them up constitutes a new seizure, which must be justified by a new probable cause finding, and an internal ICE administrative warrant that is not signed by a judge does not meet the probable cause requirement.