New York Court: No Honoring Detainers

By David Jaroslav | December 13, 2018

On November 14, a New York state appeals court ruled that state and local law enforcement in the Empire State cannot honor immigration detainers issued by Immigration and Customs Enforcement (ICE).

In Francis v. DeMarco, the Second Department of the New York Supreme Court’s Appellate Division unanimously held that former Suffolk County Sheriff Vincent DeMarco violated state law when he held illegal alien Susai Francis, arrested for drunk driving, in jail on a detainer past the end of his sentence in order to allow ICE sufficient time to pick him up.

The court’s decision relied heavily on Lunn v. Commonwealth, a 2017 Massachusetts case that found there was no Massachusetts law that authorized state or local law enforcement officers to arrest and hold an individual based on a federal civil immigration detainer.

Yet even in Massachusetts the state’s Department of Corrections (DOC) has a 287(g) agreement with ICE, which appears to allow it to honor detainers despite the Lunn decision and hand over the criminal aliens in its custody to ICE for deportation as they complete their sentences. There is no such agreement between the New York DOC and ICE. Indeed, due to a sanctuary executive order issued by Governor Andrew Cuomo (D) to state executive-branch agencies in April, New York DOC has likely stopped honoring detainers. This court decision appears to make reversing that order impossible without legislation – thus going even further than Lunn to impose reckless sanctuary policies.

Since the issue has not been considered by any of the Appellate Division’s other three geographic departments, the Second Department’s decision appears to be controlling statewide. This means that the Rensselaer County Sheriff’s Office under Sheriff Patrick Russo (R), because of its 287(g) agreement, will now be the only one able to honor detainers. Moreover, the court itself recognized that other local law-enforcement agencies in New York may want to consider 287(g) agreements as a means to avoid the impact of the decision.

Suffolk County can appeal the decision to the New York Court of Appeals, the state’s highest court. They must do so within 30 days of the Appellate Division’s ruling.