Last week, Mayor Eric Adams signaled a disagreement with NYC’s long-standing sanctuary laws suggesting that the city should much more openly cooperate with U.S. Immigration and Customs Enforcement.
This comes amid a generalized and heavily politicized migrant crime panic, despite data showing that immigrants commit crimes at lower rates than the native-born, fed by incidents like the recent killing of a Georgia student, allegedly by a migrant who’d previously been detained in New York. In response, the Georgia House passed a bill mandating that local law enforcement detain people suspected of being undocumented immigrants, just before a similar Texas law was blocked by the Supreme Court.
As emotional and heavily political an issue as local cooperation or noncooperation with immigration enforcement has been, the underlying legal questions are complex and poorly understood. So here’s a quick primer.
With the state-level enforcement laws, the main issue is a constitutional and existing case law having to do with the federal government’s sole power to regulate immigration. As far back as the late 19th century, the Supreme Court ruled (in cases like Chae Chan Ping v. United States and Fong Yue Ting v. United States) that the federal government had plenary power to make and enforce immigration laws, rooted in its authority to regulate commerce and relations with foreign nations. These concepts were further solidified in decisions like 1948’s Takahashi v. Fish & Game Commission, which explicitly ruled that “the authority to control immigration—to admit or exclude aliens—is vested solely in the federal government.”
More recently, we had 2012’s decision in Arizona v. United States, in which the court ruled on challenges to that state’s infamous Senate Bill 1070. The law, which in many ways galvanized the contemporary immigration advocacy sphere, made being undocumented or attempting to work without authorization a state-level crime and directed local and state law enforcement to both verify the status of anyone arrested or detained and arrest people suspected of being in the country unlawfully. SCOTUS allowed the verification bit to stand, but struck down the rest. The Texas law was struck down on similar grounds, as almost certainly the Georgia law will if and when it is put in effect.
There is really just one exception, through the so-called 287(g) program, which allows local law enforcement to be effectively deputized as federal immigration agents and hold immigrants for ICE; this program currently only exists for detention scenarios– i.e. jails and prisons– and local officials need the participation of the federal government. They cannot make local or state policy to do it unilaterally.
The flip side of the coin here is states and localities that have adopted policies to thwart some federal enforcement efforts, often referred to as “sanctuary” provisions. These are the policies Adams has talked about weakening. New York City and the state have a patchwork of different policies that could fall under this umbrella.
Before we get into the specifics, let’s have a quick recap on what sanctuary policies mean. They are often misunderstood as states and localities interfering with immigration enforcement somehow, but that would not be possible for the same reasons that states and localities can’t do their own immigration enforcement: it’s the federal government’s role and responsibility. So you could not, for example, have a local ordinance that stipulated that police should block ICE personnel from making civil immigration arrests.
Sanctuary policies are also fundamentally not about giving immigrants any preferential treatment, despite frequent insinuations by right-wing commentators that they’re intended to put immigrants above the law. Rather, they’re best understood as efforts to treat immigrants the same as everyone else, as opposed to having harsher treatment or consequences. This is the case with enforcement and non-enforcement policies like, say, opening up drivers’ licenses to undocumented immigrants, as New York did in 2019.
Most relevant to Adams’ statements is the treatment of so-called ICE detainers, which are essentially requests by the federal agency for localities to hold people in criminal detention past when they’d otherwise be released so that immigration agents can pick them up. In refusing to follow detainers, a locality wouldn’t be preemptively releasing an immigrant, they’d be releasing the person in the same way that they’d release a U.S. citizen. It’s a choice not to cooperate with a process that’s not fundamentally a local or state role.
This choice has in some cases been vindicated by the courts; a number of federal judges and panels have ruled that ICE issuing such detainers and localities complying is unconstitutional, because it is essentially a new seizure under the Fourth Amendment without adequate due process or probable cause. Think of it this way: we’d intuitively understand that if a person was arrested by local police on a charge of swiping a candy bar, it’d be absurd for the police to hold them past their release date because the IRS was separately investigating if they’d cheated on their taxes. It’s the same thing with immigration law, which is civil in nature.
Alright, back to NYC. So what actually governs how city law enforcement deals with ICE? The controlling laws locally are Local Laws 58-2014 and 59-2014, which deal with ICE detainers and are almost identical except that the former applies to the NYC Department of Correction and the latter to the NYPD. The law sets a very high bar for honoring a detainer. As a baseline, the subject of the request has to have been convicted of a list of so-called “violent or serious crimes” (handy list here; they range from patronizing prostitution to money laundering to assault and incest).
For the DOC, the conviction has to have come in the past five years, or the person has to have been a possible match on a terrorist watch list. The NYPD can hold someone for ICE if they have been convicted of such a crime at any time and reentered the U.S. after having been deported. In either case, ICE also needs to present a judicial warrant, meaning a warrant signed by a judge, which is extremely rare (the detainers are basically just agency memos). The departments are also prohibited from using any resources or manpower to help ICE outside of these circumstances.
The standards are so stringent that very few people are held for ICE. The NYPD’s most recent disclosure report, covering July 1, 2022 to June 30, 2023, notes that the department received 109 detainer requests and honored zero of them. The DOC’s disclosure noted it received 201, held zero people for additional time, and turned ten people over to ICE.
It’s not completely clear exactly how Adams would seek to shift these rules, but at minimum he seems to want to be able to actively cooperate with crime on suspicion, not conviction of a crime. Obviously, one of the foundational principles of due process is innocent until proven guilty, which goes out the window when there is a specific consequence that accrues on suspicion of a crime.
The potential consequences aren’t difficult to foresee — just this past week, Manhattan District Attorney Alvin Bragg announced that a Venezuelan man who had been arrested in connection with the late January NYPD fight in Times Square (and who became a national stand-in for migrant crime panic) had not been involved in the altercation at all. Under Adams’ plan, he would have been turned over to ICE prior to being cleared of charges.
