Appeals Court Rejects ICE Detainers In NY

In a decision that has major ramifications for police departments across the East End, and especially the Suffolk County Sheriff’s office, a New York State Court of Appeals has ruled that the practice of holding prisoners for up to 48 hours after their scheduled release based on an administrative request from Immigration and Customs Enforcement agents, is unconstitutional under state law.

“We have altered our policy, as we have done in the past,” Suffolk County Sheriff’s Department Chief Michael Sharkey said November 16. He said sheriffs will no longer honor ICE administrative requests.

It had been a sore point for defense attorneys who practice criminal law, frequently causing uncertainty for defendants, as to whether to post bail or not after being arrested when a hold was in place.

“We are really, really pleased with the decision,” said Andrew Strong, attorney for the Organización Latino-Americana.

“Administrative warrants are not legal. That fits with our position as well as with the position of the Town of East Hampton,” Strong said.

The appeal was brought by both the New York Civil Liberties Union as well as the American Civil Liberties Union, and involved an Indian national, Susai Manickam Francis, who had been living in Northport. In December 2017, he pleaded guilty in Nassau County to a misdemeanor charge of aggravated drunken driving. He then was taken to Suffolk County, where he entered a guilty plea to a violation charge of disorderly conduct, and was sentenced to time served. However, then-Sheriff Vincent DeMarco’s office held Francis, who was picked up less than 48 hours later, based on an administrative request, termed a warrant by ICE.

Before Francis was picked up by ICE, the NYCLU and the ACLU challenged the legality of DeMarco’s office’s decision by going to the New York State Supreme Court’s Appellate Division, Second Judicial Department, on a writ of habeas corpus, saying that the sheriff was acting contrary to state law. The ACLU and NYCLU asked for an immediate decision, but, as the court explained in its written decision, the process of arguing such a case is more involved than an instant decision would allow. However, the court recognized that ICE detainer requests were an ongoing issue, both in Suffolk and Nassau counties, and so took up the Francis case.

The policy of honoring administrative request from ICE was put in place in December 2016.

The sheriff’s office was joined by the U.S. Justice Department in the action, while the New York Attorney General’s office sided with the ACLU and NYCLU.

When Errol Toulon was sworn in as the new sheriff in January of this year, he agreed to continue Sheriff DeMarco’s policy with ICE, and also agreed to rent space in the Riverside jail to ICE.

Part of the legal thinking in renting the space to ICE is that local officers would be acting as federal officers while the prisoners were being held for ICE.

The court made it clear in its decision that it was not in any way addressing national immigration policy, but only the very narrow question of the legality under New York State law of honoring ICE detainer requests. They rejected the idea that the sheriff’s department could, essentially, re-arrest someone who was scheduled for release without a new crime being committed. “Determining only the narrow issue before us, we conclude that the Sheriff’s policy, issued on December 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 December 11, 2017, which commenced after the termination of Francis’s court proceeding that day, was thus unlawful.

“The relief requested by the petitioner of immediate release of Francis from the Sheriff’s custody is no longer available because Francis is no longer in the Sheriff’s custody. Accordingly, the writ is sustained, and the detention of Susai Francis by the Sheriff of Suffolk County on December 11, 2017, which detention commenced after the termination of Francis’s court proceeding that day, was unlawful,” the decision read.

Francis was taken into custody and deportation proceedings were started. His present whereabouts were not known at deadline.

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