Let’s talk about “detainers.” Read this blog if you are concerned about what may happen to you in the event NYPD arrests you and you have a green card or “no papers.”
DETAINERS – WHAT IS THIS?
Let’s simplify this. A detainer is simply a request that ICE or CBP (Customs & Border Protection agency) sends to the police asking them to hold an immigrant in jail for 48 hours longer than when the person is scheduled to be released from jail. During this 48 hours, ICE will determine whether the immigrant should be transferred over to them for further federal immigration action (i.e., removal).
IMPORTANT BACKGROUND ON DETAINERS
Before 2014, ICE detainers was a common practice under the federal Secure Communities Program. However, this Program was eliminated after a number of courts ruled that police agencies violated people’s 4th Amendment rights by holding them longer than their release date. The Obama Administration then created the Priority Enforcement Program, which transferred to ICE immigrants who had committed certain crimes. Before the immigrant was transferred to ICE, ICE had to show that the person was subject to a final deportation order or there was probable cause to find the immigrant removable.
President Trump has gotten rid of the Priority Enforcement Program and reinstated the Secure Communities Program. So, what does this mean? It means that we will see more detainer requests from ICE and CBP, and in all likelihood, more people will sue police departments for unconstitutionally holding them beyond their release date.
MUST THE POLICE COMPLY WITH ICE DETAINERS?
NO! Police agencies DO NOT have to approve a detainer request. The police can DECLINE to DETAIN, TRANSFER or ALLOW ICE access to immigrants. However, if ICE has a warrant from a judge saying that the person should be turned over to them, the police must comply with this warrant.
In light of the new immigration executive orders, New York’s Attorney General (Eric Schneiderman), sent police agencies some guidance about how they should handle ICE detainers. He recommends that police agencies should approve detainers in very LIMITED circumstances:
1. if ICE has a judicial warrant, OR
2. if there’s Probable Cause to believe that the immigrant has illegally re-entered the country and has been previously convicted of certain crimes (i.e. criminal aliens who re-entered the U.S. after being deported), OR if the immigrant has engaged in terrorist activities.
So far, several cities have adopted the Attorney General’s guidelines: Albany, Rochester, Syracuse, Ithaca, Kingston, Newburgh, Hudson, White Plains & Irvington.
SO WHAT ABOUT NYC?
NYC has already created laws about when NYPD will approve ICE detainers. NYPD will only turn immigrants over to ICE if:
1. there’s a judicial warrant, AND
2. the person has been CONVICTED of a VIOLENT or SERIOUS CRIME, or engaged in TERRORISM
NYPD may also turn over violent criminal aliens who returned to the U.S. after being deported.
Thus, NYPD may not turn immigrants over to ICE if the immigrant has merely been arrested or charged with committing a crime. By law, they may only turn over people who have been CONVICTED (based on a judgment from a court) of a violent or serious crime and there’s a judicial warrant. If ICE cannot show a judicial warrant within 48 hours, NYPD will release the immigrant and not notify ICE about his/her release.
I’m here to discuss your rights and to help you through this difficult time. If you have been waiting to get your status straightened out, wait no longer! If you have been thinking about becoming a citizen, wait no longer! If your spouse, children, relatives, friends or co-workers need to work with an immigration lawyer, tell them to call me ASAP.
Call me at (718) 301-9732 to schedule a consultation. Or schedule the consultation on my website at www.lnmcbeanlaw.com.
The information provided in this post is solely for general information purposes only. It should not be construed as a communication of legal advice or opinion. Further, this information is not intended to create an attorney-client relationship.