Back to All Testimony

Testimony before the New York City Council in Support of Legislation Limiting the Detention and Deportation of Immigrants

Testimony of Rebecca Engel on behalf of the New York Civil Liberties Union before
the New York City Council Immigration Committee in support of Intro Nos. 982 and 989.

January 25, 2013

I. Introduction
The New York Civil Liberties Union (“NYCLU”) presents the following testimony in support of Intro Nos. 982 and 989, legislation that would limit the role that both the Department of Correction (DOC) and the New York City Police Department (NYPD) play in facilitating the detention and deportation of immigrants living in New York City. Since 1951, the NYCLU has been defending the rights and freedoms of all New Yorkers. We present our testimony today as part of our continuing advocacy to protect the rights of immigrant New Yorkers.

Elected officials and members of the public often describe New York City as a “sanctuary city” for its hundreds of thousands of undocumented residents. The city has a long history of embracing its immigrant communities and their contributions to its diversity, culture, and economic strength. In September 2003, Mayor Bloomberg strengthened that bond when he signed Executive Order No. 41, which has commonly been described as establishing a “don’t ask, don’t tell” mandate on city employees who come in contact with undocumented New Yorkers.

However, as the NYCLU and other organizations noted at the time of the issuance of Executive Order 41, the order fell short in one important respect: Executive Order 41 carves out exceptions for collaboration between law enforcement officers and federal immigration authorities. Under EO 41, law enforcement officers may inquire about a person’s immigration status when investigating illegal activity other than mere status as an undocumented immigrant, and cooperate with federal immigration authorities in investigating and apprehending immigrants suspected of criminal activity. The latter authorization applies to NYPD and DOC officials as well. Therefore, while New York City does maintain a wall of confidentiality between non-law enforcement agencies and federal immigration authorities, in the context of the criminal justice system, such a wall has been crumbling for many years.

The NYCLU believes that immigration enforcement is a job for federal immigration authorities and not for our local law enforcement, whose job is to protect all of our residents, regardless of immigration status. Therefore, the NYCLU respectfully submits the following testimony in support of Intro Nos. 982 and 989, bills that will limit the number of “detainer requests” from ICE that New York City chooses to spend its time, money, and resources on. While these bills do not put an end to the entanglement that continues between local law enforcement and civil immigration enforcement in New York City, they are a definitive step in the right direction. Intro Nos. 982 and 989 will make New York City part of an emerging national trend, under which counties and cities nationwide are choosing to preserve their own needed financial resources, and focusing on their own priorities over ICE priorities, in choosing who to detain.

II. The Problems with Immigration Detainers
Beginning with former President George W. Bush and continuing aggressively under the administration of President Barack Obama, in recent years, the federal government has aggressively implemented a series of immigration enforcement programs that partner-up with local law enforcement agencies to enforce federal immigration laws. These enforcement programs represent an unprecedented shift in responsibilities for immigration enforcement from the federal level to local authorities. Immigration and Customs Enforcement (ICE) currently administers an entire suite of enforcement programs under the umbrella of ICE ACCESS (Agreements in Cooperation in Communities to Enhance Safety and Security), which includes 14 different enforcement programs. Some, such as the “287(g) program,” directly deputize local law enforcement agents to act as immigration enforcement officers, with powers to arrest individuals for immigration law violations.
In New York City, immigrant communities are confronted with the presence of ICE in their local law enforcement in the form of “detainers” (also known as an “ICE holds” or “immigration holds”)— requests from ICE that a local law enforcement agency continue to detain an individual on its behalf. When ICE files a valid immigration detainer request against a prisoner, the local law enforcement agency may continue to hold that individual for up to 48 hours, excluding weekends and federal holidays, after the person is otherwise entitled to be released. If ICE has not assumed custody of that person upon the expiration of the 48-hour time period, he or she must be immediately released from custody, unless the facility has other reasons to continue to hold him or her. A detainer request is not an arrest warrant and it does not purport to authorize the arrest of any individual. Nor does it need to be based on a determination that the person has violated any federal immigration laws. Instead, ICE may issue a detainer request simply because it wants to investigate a person’s immigration status, and needs extra time to decide whether or not to assume custody of that person and to begin administrative proceedings in immigration court.

The NYCLU has had serious concerns about the constitutionality of detainers ever since the beginning of their use in New York State. Under the New York Criminal Procedure Law, “a police officer, after performing without unnecessary delay the required preliminary police duties, must without unnecessary delay bring a person arrested without a warrant to a local criminal court for arraignment.” N.Y. CPL §140.20. After arraignment, especially for many low-level crimes, many individuals are released on bail or on their own recognizance. In 1991, the Court of Appeals for the State of New York ruled that there is “no reason why the prearraignment process cannot be completed within 24 hours,” and that “ a delay of arraignment of more than 24 hours is presumptively unnecessary and, unless explained, constitutes a violation of CPL 140.20.” People ex rel. Maxian v Brown, 77 N.Y.2d 422, 427 (N.Y. 1991) (internal citations omitted). Given this specific New York legal standard, imprisonment of a person for any additional amount of time, even if only for 48 hours, raises fundamental concerns. The detainers themselves, which may be issued simply because DHS has “determined that there is reason to believe that the individual is an alien subject to removal from the United States,” fall far short of alleging, much less demonstrating, probable cause, and are issued without any authorization by a neutral judicial oversight. To deprive a person of liberty solely because the government seeks to investigate that person’s immigration status, without requiring any concrete showing of probable cause, offends both the Constitution and fundamental principles of justice.

The lack of a probable cause standard also often leads to one of the most serious problems with detainer requests: they are frequently lodged by ICE with only the barest of information, which sometimes results in the mistaken detention of individuals who have not violated any immigration laws at all—including naturalized citizens and visa holders. Detainer requests have even mistakenly been lodged against citizens born in the United States who are not deportable under any circumstances. There are serious liability concerns for local law enforcement agencies who decide to continue the detention of an individual—for any length of time—based solely on detainer requests.

In addition to the risk of civil liability, detainer requests also raise the overall operating costs for New York City jails. The federal government has made it clear that it bears “no fiscal obligation” to pay for the costs of holding most individuals under detainers. This is true even though the requests often have the effect of prolonging the time that those individuals spend in the custody of local law enforcement agencies. Detainer requests increase incarceration times for prisoners directly, during the 48-hour period after they would otherwise be entitled to release, but also indirectly during the pre-trial and sentence phases of detention, by making judges reluctant to set bail for them and making them ineligible for rehabilitation programs that would shorten or avoid the need for their detention at the county’s expense. The increased burdens that result for those local law enforcement agencies that honor detainer requests include not just allocating more bed space, but also providing for additional incidental costs for these prisoners, such as medical care. Therefore, since the beginning of ICE’s use of detainer requests, the NYCLU has been advising local law enforcement agencies that those who elect to honor detainer requests should be aware that doing so will raise their costs and potential liabilities, neither of which the federal government will reimburse.

III. The Problem With Secure Communities
In late 2007, ICE hugely expanded its use of detainer requests by launching the “Secure Communities” (S-Comm) program, in which it identifies immigrants eligible for deportation by running the fingerprints of every arrestee in a locality through the Department of Homeland Security’s (DHS) biometric immigration database. Under S-Comm, upon arrest for an offense that requires fingerprinting, an arrestee’s fingerprints are taken by the local law enforcement agency and forwarded to that state’s criminal information bureau. The state agency then forwards the fingerprint data to the FBI Criminal Justice Information Services (CJIS) for routine screening for other outstanding warrants and previous convictions. Next, the FBI shares that fingerprint data with ICE who then runs the fingerprint data against its biometric database called US-VISIT IDENT. If a “match” is found, ICE sends an “Immigration Alien Query” (“IAQ”) to its Law Enforcement Support Center (“LESC”) where a determination will be made on whether or not an immigration detainer will be issued upon the person identified as a “match.” If the decision is made to issue an immigration detainer, the LESC will issue an “Immigrant Alien Response” (“IAR”) to the ICE Field Office nearest to the local facility where the arrestee is being held. The local ICE Field Office then issues the immigration detainer to the local law enforcement agency, requesting that it transfer custody of the individual to ICE once it relinquishes custody.

As jails throughout New York State began to implement this system in 2011, sheriffs, faith communities, labor unions, legal advocates, and politicians began to express concern about both S-Comm’s constitutionality and its wisdom. Among other concerns, these groups began to express concern that (1) deporting individuals regardless of whether or not they have been convicted of the crime that led to their initial arrest would violate basic principles of American justice; (2) that S-Comm would facilitate racial profiling and unconstitutional arrests, by potentially incentivizing law enforcement agents to make arrests based on the race or ethnicity of suspected undocumented immigrants; (3) that tearing down the wall between the local law enforcement and federal immigration enforcement would make our communities less safe, by making immigrant communities fearful that any kind of interaction with the police would put themselves, their family members, or friends at risk for detention and deportation.

In New York City, the concern that S-Comm would make our communities less safe was of particular vigor, since hundreds of thousands of undocumented immigrants live here. Indeed, immigrants have flocked to New York City for centuries because of the city’s unique cultural and economic opportunities. Mayor Bloomberg has recognized the importance of immigrants to the city’s culture and economy: “No city on earth has been more rewarded by immigrant labor, more renewed by immigrant ideas, more revitalized by immigrant culture.” Mayor Bloomberg’s sentiments are shared by millions of New Yorkers who understand that immigrants fuel our economy and contribute to the rich diversity of this city – New York’s immigrant communities are vitally important for the quality of life of all New Yorkers.

Yet, with the use of S-Comm and detainers, activists were and continue to be concerned that when local law enforcement agencies like the NYPD and the DOC open up their doors to federal immigration enforcement agents, immigrant communities will avoid contact with local law enforcement for fear of being exposed to immigration authorities. For example, with the entanglement between federal immigration authorities and the NYPD, immigrant residents might refrain from reporting to the police when they have been a victim of a crime, or that they have witnessed a crime. As Police Commissioner Ray Kelly himself has noted, “We want people to feel free to contact the police, to walk into police stations; communicate with the police. To the extent that that act [Secure Communities] may have some effect on that, that’s problematic.” When community members don’t trust law enforcement enough to alert them of crime occurring in their community, then law enforcement officers are not able to adequately police their communities and maintain safety.

As a result of New York City’s, and other towns and cities’ concerns, in June 2011, Governor Cuomo suspended New York’s participation in the S-Comm program. However, in May of 2012, DHS chose to ignore New York’s position and implemented the program in our state regardless. As a result of this now-imposed stance, New York State has since deported 1,717 individuals identified and detained through S-Comm, with 284 of those deportations taking place in New York City in the last seven months alone.

III. Cities and Counties Around the Country Are Now Limiting the Power of Detainers and S-Comm
Not only has S-Comm greatly increased the number of individuals being deported by ICE nationwide, its implementation has even run against its stated goal, of deporting the “most dangerous criminal aliens.” Last year, of the 83,815 individuals detained and deported after identification through S-Comm nationwide, more than 21 percent of them were classified by ICE as “non-criminals,” meaning they had no criminal conviction on record. More than 70 percent of those deported were either non-criminals or were merely charged with lower level offenses. In fact, only 30 percent of the people deported last year had been charged with or convicted of what ICE classified as a “Level 1” offense, encompassing more serious felony offenses. In New York City, the statistics are even starker: since S-Comm was implemented last year, 48 percent of those deported after being detained by S-Comm have been non-criminals, while an overwhelming 85 percent have been non-criminals or convicted only of misdemeanors or violations.

As a result of these numbers, and because of continuing concerns about racial profiling, cost, and community safety, cities and counties all over the country are now choosing to lessen the brunt of S-Comm on a more local level—by simply limiting the number of detainer requests that they choose to respond to. For example, in Cook County, Illinois, due to an ordinance passed by the county Board of Commissioners, no detainers are being honored unless there is a written agreement with the federal government to reimburse costs. In Santa Clara County, California, no ICE detainers will be honored unless there is both reimbursement and the person has been convicted of a “serious or violent” felony offense as defined in the California Penal Code. In Chicago, the City Council passed an ordinance several months ago, under which agents shall not detain anyone based on an ICE detainer unless the person has an outstanding criminal warrant, is facing a felony charge, has a felony conviction, or is a gang member. In Washington, D.C., detainers will be honored only for 24 hours, and only if the person is 18 years or older and has been convicted of a “dangerous” crime as defined in the D.C. Code.

Meanwhile, the Massachusetts Legislature is currently considering a law, the Massachusetts Trust Act, that would establish that Massachusetts law enforcement agencies may hold someone on the basis of an immigration detainer only if the detainer is accompanied by a prior order of removal or Notice to Appear, if the individual has been confined to a state prison for at least five years for a conviction of a violent crime, and the federal government has agreed to reimburse all expenses associated with the continued detention of that individual. And last month, the California Department of Justice and the Office of the Attorney General issued an information bulletin clarifying the role of local law enforcement agencies in California with detainer requests, writing that “in a time of shrinking financial resources, a growing range of critical public safety priorities, limited space for housing prisoners, and layoffs of police officers and sheriffs’ deputies, it is appropriate that California law enforcement agencies that receive immigration detainer requests consider them carefully and determine what course of action best protects public safety in light of the facts of each case.”

Indeed, the resistance against S-Comm and detainers has become strong enough that just last month, even ICE issued a memorandum stating that the agency would issue a detainer on an individual only if he or she had a prior felony conviction, had been charged with a felony offense, had three or more prior misdemeanor convictions, is a “significant risk to national security, border security, or public safety” or because of several other exceptions.

IV. Intro Nos. 982 and 989
As legislation that would likewise limit the number of detainers from ICE that NYPD and the DOC would honor, Intro. Nos. 982 and 989 are part of this trend that is taking place across the country, of lessening the impact of S-Comm by allowing cities to decide who they believe it is appropriate to detain. These current bills build off the legislation that City Council passed in 2011, that first limited the type of detainers that the DOC honors. Intro. 656 ordered the DOC not to oblige with detainer requests on arrestees unless he or she had been convicted of any crime, was a defendant in any pending criminal case, had an outstanding criminal warrant, was listed as a gang member or terrorist, or had ever been subject to an immigration warrant or a final order of removal.

The NYCLU now commends the City Council for revisiting this law and making it even stronger. First, Intro Nos. 982 and 989 bring the limited detainer policy to the NYPD in addition to the DOC, a significant addition due to the activation of S-Comm, which has caused many undocumented immigrants to be held for transfer to ICE upon initial arrest by the police. In addition, these two bills greatly expand the type of detainers that the City does not honor, by removing youthful offenders, those who have never been convicted of a felony or whose last misdemeanor conviction was ten or more years ago, and those who are currently charged with only a violation or most misdemeanors, from being subjected to ICE detainer requests. By further limiting the role that non-serious crimes play in the DOC and NYPD’s decision to honor a detainer, these bills will protect many more immigrant New Yorkers from being taken into ICE custody when they would otherwise normally be released.

However, in light of ICE’s similar changes in its own policy on detainer requests, the NYCLU believes that the City Council should not only pass this legislation, but that it should also monitor and review its implementation carefully and consider making it even stronger. In doing so, the NYCLU urges the City Council look to Cook County, Santa Clara County, Chicago, Washington D.C., and the many other counties and cities around the country who are now part of this movement along with New York City. As this movement builds, the NYCLU looks forward to continuing this conversation with the City Council about how to best balance immigration requests from our federal government with our identity as a city, one that is so often a leader in paving the way on issues such community safety, racial justice, and due process.

As bold as the spirit of New York, we are the NYCLU.
© 2024 New York
Civil Liberties Union