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STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, IMMIGRATION LAW VIOLATIONS ARE NOT CRIMES, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Scheinkman, considering a matter of first impression, determined state and local law enforcement officers are not authorized to effect civil immigration arrests in connection with ICE [Immigration and Customs Enforcement] detainers. The matter came before the court as a habeas corpus petition. The petition alleged that the continued detention (in county jail) of Frances, a citizen of India who had been in the US since his visa expired in 1996, after his criminal sentence was complete, was illegal. Although Frances was in ICE custody at the time of the appeal, Frances’s circumstance was deemed likely to recur and the appeal was therefore heard as an exception to the mootness doctrine:

Following the conclusion of his court proceeding, at which he was sentenced to time served, [Frances] was handcuffed and taken to a courthouse holding cell by members of the Sheriff’s Office …  . … [B]ased on the ICE warrant, … Francis was regarded by the Sheriff as being in the custody of ICE. Francis was placed in a jail cell rented by ICE. * * *

Illegal presence in the country, standing alone, is not a crime… ; it is a civil violation that subjects the individual to removal … . The federal process for removing someone from the country is a civil administrative matter, not a criminal one … . * * *

New York statutes do not authorize state and local law enforcement to effectuate warrantless arrests for civil immigration law violations. An arrest without a warrant is permitted where an individual “has committed or is believed to have committed an offense and who is at liberty within the state” under certain circumstances prescribed by statute (CPL 140.05). County sheriffs and their deputies are police officers (see CPL 1.20[34]), as are members of the state police, county police, and municipal police. * * *

The narrow issue in this case is whether New York law permits New York state and local law enforcement officers to effectuate civil immigration arrests, and not whether federal civil immigration officers have the authority to effectuate such arrests. Nor do we decide any issues under federal law deputizing state and local law enforcement officers to act as federal immigration officers. … [W]e conclude that the Sheriff’s policy … directing the retention of prisoners, who would otherwise be released, pursuant to ICE detainers and administrative warrants is unlawful … . People ex rel. Wells v DeMarco, 2018 NY Slip Op 07740, Second Dept 11-14-18

IMMIGRATION LAW (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/MUNICIPAL LAW (IMMIGRATION LAW, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/APPEALS (IMMIGRATION LAW, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/MOOTNESS DOCTRINE (APPEALS, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/IMMIGRATION AND CUSTOMS ENFORCEMENT (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/ICE (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/DETAINERS (ICE, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/CIVIL IMMIGRATION ARRESTS  (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/CRIMINAL LAW (IMMIGRATION LAW VIOLATIONS ARE NOT CRIMES, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))

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