State appellate court halts Suffolk County Sheriff’s ICE detainer policy

A state appellate court has ruled the Suffolk County Sheriff’s practice of detaining people on ICE administrative warrants unlawful under New York State law.

The N.Y. State Appellate Division Second Department court ruled 4-0 Wednesday that the sheriff’s policy to hold prisoners otherwise eligible for release, pursuant to ICE detainers and administrative warrants violates state law. Former Sheriff Vincent DeMarco implemented the policy in December 2016, reversing the department’s previous policy.

Suffolk County Sheriff Errol Toulan, who took office in January, has directed the practice implemented by his predecessor “cease immediately.”

The New York Civil Liberties Union challenged the Suffolk sheriff’s practice in a habeas corpus proceeding last December on behalf of Susai Francis, a citizen of India who entered the United States in New York on a visa in 1996. He remained in the country after his visa expired, residing on Long Island for more than two decades.

Francis was arrested in Suffolk in November 2016 on a criminal contempt charge for allegedly violating an order of protection. While that charge was pending, he was arrested in Nassau in June 2017 on a charge of driving while intoxicated. When Nassau County Police ran in his fingerprints, he was identified as an Indian citizen who was unlawfully present in the 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.

On Dec. 4, 2017, Francis pleaded guilty in Nassau County District Court to one count of misdemeanor operating a motor vehicle while under the influence of alcohol. He was then transferred to Suffolk County for completion of proceedings on the Suffolk County criminal charge.

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 Riverhead correctional facility, where he was held by the sheriff’s office as “in the custody of ICE” and placed in a jail cell rented by ICE, according to the court decision.

The NYCLU filed a writ of habeas corpus on Francis’s behalf. While that was pending, ICE agents retrieved Francis from the Riverhead jail and transferred him to a long-term ICE detention facility in New Jersey, pending removal proceedings in immigration court.

The court in its decision took pains to issue a “narrow” ruling on the issue of whether New York law permits New York state and local law enforcement officers to effectuate civil immigration arrests. It emphasized it was not ruling on whether federal civil immigration officers have the authority to effectuate such arrests. Nor did it rule on the legality of federal law deputizing state and local law enforcement officers to act as federal immigration officers.

“Determining only the narrow issue before us, we conclude that the sheriff’s policy, issued on Dec. 2, 2016, directing the retention of prisoners, who would otherwise be released, pursuant to ICE detainers and administrative warrants is unlawful, and that Francis’s detention by the sheriff on Dec. 11, 2017, which detention commenced after the termination of Francis’s court proceeding that day, was thus unlawful,” Presiding Justice Alan Scheinkman wrote.

“While the sheriff asserts that Francis was in the custody of ICE following his return to the correctional facility from the courthouse, we find that he was in the sheriff’s custody until Francis was actually taken into custody by duly authorized ICE officers,” the court ruled.

In court papers, the NYCLU said “ICE directs hundreds of detainer requests to the [Suffolk] sheriff annually, with some 405 requests being presented in just the first 10 months of the 2017 fiscal year.”

The Suffolk County Sheriff’s Office has had a contract with ICE to house people on behalf of ICE who brought to the county correctional facility on a local criminal charge if they are the subject of an ICE detainer or administrative warrant, the Suffolk County Sheriff Office Chief of Staff Michael Sharkey told the County Legislature’s Public Safety Committee in March. The prisoners are held on behalf of ICE for a maximum of 72 hours, Sharkey said.

The county is paid $200 per day per inmate held on behalf of the federal government, Sharkey told county legislators during the committee meeting. He said the sheriff “on any given day” has “anywhere from one to three [ICE] prisoners a day.” The sheriff may have many more have ICE “holds”at any one time, however all but a few are being detained for ICE; most are held pending trial or on convictions for local criminal trials, Sharkey said.

The 2019 county operating budget proposed by County Executive Steve Bellone indicates federal revenue for the sheriff’s office of just under $1.4 million. The funding comes from the federal Department of Justice’s State Criminal Alien Assistance Program in the Bureau of Justice Assistance.

If the result of yesterday’s ruling is the termination of that funding, the impact on the county’s facility is unclear. The Suffolk County Sheriff’s office did not return repeated requests for comment today.

“This critical ruling makes clear that police and sheriffs in New York not only should not, but cannot do ICE’s bidding,” said Donna Lieberman, executive director of the New York Civil Liberties Union. “The role of local law enforcement is to protect and serve all New Yorkers, and that is incompatible with the unlawful detention of our neighbors and family members at the behest of the Trump deportation machine,” she said.

ICE detainers and administrative warrants are not required to meet the same standard of probable cause required before a court can lawfully issue an arrest warrant.

The Suffolk County Sheriff’s Office, in response to calls from the NYCLU and other advocates, had stopped enforcing ICE detainer requests in 2014. But after President Donald Trump’s election, the Sheriff’s Office reversed course.