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New York State and Local Police Cannot Detain Non-Citizens for ICE

Recently, a Brooklyn appellate court ruled that local and state police in New York State cannot detain non-citizens beyond their scheduled date of release to turn them over to U.S. Immigration and Customs Enforcement (ICE) officers without a judicial warrant.


The case The People, ex rel. Jordan Wells, on behalf of Susai Francis v. DeMarco, involved Susai Francis, a non-citizen from India who lives on Long Island and overextended his stay in the U.S. after his visa expired in 1990. In June 2017, Mr. Francis was arrested in Nassau County for driving under the influence. He was transferred to Suffolk County to face a different proceeding involving a criminal charge. According to WNY, in December 2017, he pleaded guilty to disorderly conduct and the judge sentenced him to time served.


Following the proceeding, Mr. Francis was not allowed to leave the court and Suffolk County police re-arrested him at the request of ICE. He was then transferred to a jail cell located in Riverhead that was rented by ICE.


On November 14, 2018, a three-judge appellate court panel ruled that Mr. Francis’ detainment was a violation of New York State law because the Suffolk police went beyond their authority. ICE will issue detainers to police to hold a non-citizen who is already in custody for 48 hours in order for them to facilitate a transfer. However, Mr. Francis was free to go after his court proceeding, so for Suffolk police to re-arrest him for the sole purpose of handing him off to ICE, they had gone too far. According to the ruling, local law enforcement does not have the authorization to make arrests for civil law immigration violations.


Unlike other states that have entered into a contract with ICE under the Secured Communities program, New York State and, now specifically, its judicial courts prohibit local, city, and state law enforcement officials from detaining a non-citizen for ICE, who would be otherwise free to leave. This does not necessarily mean that ICE cannot track down a non-citizen for arrest through other means. However, if a non-citizen is arrested for a criminal violation and then released or pays bail, he or she cannot be detained or re-arrested by a New York law enforcement official or office for the sole purpose that ICE asks that he or she be held.


In sum, the Francis decision held:

  • It is unlawful for New York State and local law enforcement officials, including police and sheriffs, to seize, arrest, or otherwise detain a non-citizen who would otherwise be free to leave solely on the basis of an ICE detainer.


  • Due to the fact that New York state law does not give state and local officers authority to make civil immigration arrests, it is also unlawful for those officers to seize, arrest, or detain a person on suspicion of violating civil immigration law or at the behest of federal immigration officials, regardless of how brief that detention is.


  • New York officers lack authority to detain people for civil immigration violations, even if a local law enforcement agency has an agreement with the federal government to house federal detainees in its local jail.


  • Detention only to await ICE is a “new arrest and seizure” under New York law and the Fourth Amendment, even if that detention follows immediately on the heels of an earlier arrest or detention predicated on criminal charges.



Recently, the New York Civil Liberties Union (NYCLU) has sought the assistance of attorneys in monitoring compliance with the Francis decision. As there are no other appellate case law decisions on this matter in New York, the holding is applicable statewide. The Francis case is of immediate significance to non-citizens in criminal custody with ICE holds. This also applies to those detained, even briefly, by local or state law enforcement to await the arrival of ICE authorities, including through the intentional prolonging of a car stop or other routine processing procedures like warrant checks to await ICE or U.S. Customs and Border Patrol.


If you or a loved one is a non-citizen who has been accused of a crime or is facing deportation, it is important that you consult the guidance of an experienced New York immigration lawyer. The immigration lawyers at Bretz & Coven, LLP are experienced in helping non-citizens with various immigration matters, including deportation defense and immigration eligibility with a criminal history. For more information or to schedule a consultation with our New York immigration lawyers or our New Jersey immigration lawyer, call (212) 267-2555.







Immigration Consequences of Criminal and Fraudulent Conduct
The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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