By a wide margin, New York City lawmakers approved legislation barring the New York City Police Department and the Department of Corrections from honoring federal immigration detainers in most circumstances.
The bills — which replicate similar measures in Los Angeles, Chicago, Philadelphia, Newark, and San Diego — were introduced in response to congressional gridlock over comprehensive overhaul of the country’s immigration system.
“If obstructionists in Congress insist on delaying any federal action on fair and just immigration reform, it falls to municipal governments to pick up the slack,” said City Council Speaker Melissa Mark-Viverito, the lead sponsor of the bills.
Costa Costantinides, a city councilman representing Astoria and co-sponsor of the bills, said current immigration policies “lead to families being broken up.”
The Department of Homeland Security relies on detainers to hold immigrants who come in contact with criminal justice agencies, which then turn them over to federal agents for screening and possible deportation.
Under the new measures, city officials may only comply with the detainers — which instruct local governments to hold persons suspected of violating immigration laws for up to 48 hours — if accompanied by a judge-approved warrant and the person has been convicted for a “violent or serious crime.” The legislation also carves an exception for potential terror suspects.
Mayor Bill de Blasio has said he supports the bills and is expected to sign them into law soon.
In a statement, local Immigration and Customs Enforcement authorities said detainers are only meant to keep “dangerous criminals” out of communities.
“ICE will continue to work cooperatively with law enforcement partners throughout New York as the agency seeks to enforce its priorities through the identification and removal of convicted criminals and other public safety threats,” said ICE spokesperson Luis Martinez in the statement.
One of the bills also eliminates an ICE outpost at Rikers Island — a move councilmember Paul Vallone, who voted against the bills, said “sends a dangerous message.”
City Council Minority Leader Vincent Ignizio, another opponent, worried that “breaking ranks with our federal partners in law enforcement” is not the solution.
More than 900,000 people in New York City were subject to ICE-approved detainers between 2008 and Aug. 31, 2014, according to The Wall Street Journal.
Since Mayor de Blasio took office and Mark-Viverito the helm of the City Council in January, the city has backed measures to make it more immigrant-friendly, like a recently approved municipal-ID program that’s expected to be rolled out in January 2015.
The anti-detainer legislation arrives on the heels of a New York ruling — the first of its kind in the state — that declared illegal for the Department of Correction to hold an immigrant on a federal detainer where there isn’t probable cause or another authority to retain custody.
In that case, Mario Mendoza, 32, was arrested for violating a restraining order. While Mendoza awaited resolution of the case, immigration authorities, believing he was a candidate for deportation, issued a detainer. On Oct. 14, the day Mendoza’s charges were resolved, the Department of Corrections refused to release him, arguing the detainer required them to keep him in custody.
His attorney objected and intervened to have Mendoza released. The judge ruled in Mendoza’s favor and said that his continued detention violated the federal and state constitutions, and ordered his immediate release.
Other courts nationwide have reached similar results, and legal challenges continue in several jurisdictions.
In March, the U.S. Court of Appeals for the Third Circuit sided with a Puerto Rican man who was swept up in a drug raid and held on a detainer by immigration authorities for days. The court ruled that immigration detainers cannot be used to require local and state governments to hold persons suspected of being illegally in the country.
Relying on the Third Circuit’s decision, an Oregon federal court imposed liability on a county government for violating a woman’s Fourth Amendment rights due to an improperly honored detainer. And in late September, an Illinois federal court certified a class action against the Department of Homeland Security for the way it operates its immigration detainer program; that lawsuit is ongoing.
Kamala Harris, the California attorney general, responded to the Oregon ruling by issuing a bulletin to state and local law enforcement warning them of the “legal risk” of mishandling immigration detainers.
As a result of these legal challenges and growth of immigration populations, a number of municipalities are voluntarily ending their cooperation with immigration authorities, fearing lawsuits and potential liability.