People v. Demarco, 2017–12806

• Decision Date: 14 November 2018
• Docket Number: 2017–12806
• Citation: 168 A.D.3d 31,88 N.Y.S.3d 518
• Parties: The PEOPLE, etc., EX REL. Jordan WELLS, on Behalf of Susai Francis, Petitioner, v. Vincent F. DEMARCO, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 31

88 N.Y.S.3d 518

The PEOPLE, etc., EX REL. Jordan WELLS, on Behalf of Susai Francis, Petitioner,

v.Vincent F. DEMARCO, etc., Respondent.

2017–12806

Supreme Court, Appellate Division, Second Department, New York.

Submitted - December 12, 2017

November 14, 2018

New York Civil Liberties Union Foundation, New York, N.Y. (Jordan Wells, Paige Austin, Mariana Kovel, Christopher Dunn, and Scout Katovich of counsel), and American Civil Liberties Union Foundation, New York, N.Y. (Omar C. Jadwat, Cody Wofsy, and Spencer Amdur of counsel), for petitioner.

Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Leonard G. Kapsalis of counsel), for respondent.

Matthew G. Whitaker, Acting Attorney General of the United States, Washington, DC (Richard P. Donoghue, Joseph A. Marutollo, Chad A. Readler, William C. Peachey, Erez Reuveni, and Steven A. Platt of counsel), for amicus curiae United States of America.

Barbara D. Underwood, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Scott A. Eisman of counsel), amicus curiae pro se.

Morningside Heights Legal Services, Inc., New York, N.Y. (Elora Mukherjee, National Immigrant Justice Center [Mark Fleming and Katherine Melloy Goettel], pro se, and Christopher N. Lasch, pro se, of counsel), for amici curiae National Immigrant Justice Center, David Baluarte, Eduardo R.C. Capulong, Michael J. Churgin, Kate Evans, Ce´sar Cuauhte´moc Garci´a Herna´ndez, Denise Gilman, Tanya Maria Golash–Boza, Geoffrey A. Hoffman, Alan Hyde, Ulysses Jaen, Ramzi Kassem, Elizabeth Keyes, Ira J. Kurzban, Annie Lai, Christopher N. Lasch, Beth Lyon, M. Isabel Medina, Vanessa Merton, Jason Parkin, Huyen Pham, Karen Pita Loor, William P. Quigley, Sarah Rogerson, Victor Romero, Rube´n G. Rumbaut, Erica B. Schommer, Christian Sundquist, Maureen A. Sweeney, David B. Thronson, Mary Pat Treuthart, Yolanda Va´zquez, Robin Walker Sterling, Richard A. Wilson, Stephen Wizner, and Mark E. Wojcik.

ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, JJ.

OPINION & JUDGMENT

SCHEINKMAN, P.J.

The issue before us in this proceeding is both narrow and important. We must decide whether New York law permits New York state and local law enforcement officers to effectuate civil immigration arrests. The authority of federal civil immigration officers to effectuate such arrests is not before us. Nor do we have occasion to pass upon broad issues of immigration law and policy. Addressing only the precise question before us, and based on our analysis of the relevant statutes and precedents, we conclude that New York state and local law enforcement officers are not authorized by New York law to effectuate arrests for civil law immigration violations.

The Relevant Facts

The facts are undisputed. Susai Francis is a citizen of India. He entered the United States in New York, New York, in 1996, under the terms of a B2 visitor visa, which allowed him to remain in the United States for a period not to exceed six months. Francis failed to depart the United States as required by the visa. He resided on Long Island for more than two decades and has two children, one of whom is a citizen of the United States. On March 25, 2015, Francis was served with a notice to appear in Immigration Court, and he is currently the subject of removal proceedings.

On November 28, 2016, Francis was charged in Suffolk County with misdemeanor criminal contempt in the second degree ( Penal Law § 215.50 ) for violation of a Family Court order of protection. He was released on his own recognizance. Francis was arrested again on June 14, 2017, this time in Nassau County, on two misdemeanor counts: operating a motor vehicle while under the influence of alcohol (see Vehicle and Traffic Law § 1192 ) and driving an uninsured vehicle (see Vehicle and Traffic Law § 319 ). Francis was held at the Nassau County Correctional Center.

As part of the procedure followed by the Nassau County Police Department, upon Francis's arrest, his fingerprints were taken and submitted to federal databases. He was identified as an Indian citizen who was unlawfully present in the United States. United States Immigration and Customs Enforcement (hereinafter ICE) Deportation Officer Julissa Iniguez issued both a detainer and an arrest warrant, which were provided to the Nassau County Police Department. The detainer, addressed to the Nassau County Police Department, requested that the Police Department notify ICE as soon as practicable before Francis was released from custody, on at least 48 hours' notice, if possible. The warrant, addressed to any immigration officer authorized pursuant to sections 236 and 287 of the Immigration and Nationality Act ( 8 USC §§ 1226, 1357 ) and 8 CFR part 287 to serve warrants of arrest for immigration violations, commanded that Francis be arrested and taken into custody for the purposes of removal proceedings.

On December 4, 2017, Francis pleaded guilty in Nassau County District Court to one count of misdemeanor operating a motor vehicle while under the influence of alcohol (see Vehicle and Traffic Law § 1192[2–a][a] ). He was then transferred from the Nassau County Correctional Center to the Suffolk County Correctional Facility in Riverhead (hereinafter the Riverhead facility), which is operated by the Sheriff of Suffolk County, for completion of proceedings on the Suffolk County criminal charge. The ICE detainer and arrest warrant were transferred along with him.

On December 11, 2017, Francis pleaded guilty in Suffolk County District Court to one count of disorderly conduct. He was sentenced to time served. However, Francis was not released from custody and was, instead, returned to the Riverhead facility.

In September 2014, the Sheriff of Suffolk County (hereinafter the Sheriff) established a policy that an inmate was not to be held in custody solely on the basis of an ICE detainer. Instead, an inmate subject to an ICE detainer would be sent to court and, in the event that all local charges were disposed of, the inmate would not be returned to the correctional facility. The inmate would be free to leave on his or her own directly from the courthouse, just as inmates who are not subject to ICE detainers are treated. However, on December 2, 2016, the Sheriff issued a new policy under which inmates subject to either an ICE detainer accompanied by a United States Department of Homeland Security (hereinafter DHS) Warrant for Arrest of Alien, and/or DHS Warrant of Removal/Deportation, are to be held for up to 48 hours after the time they would otherwise have been released, with ICE to be notified immediately. Under the 2016 policy, when an inmate is subject to an ICE detainer and warrant, the inmate is retained at a Suffolk County correctional facility by the Sheriff but the paperwork is "re-written" to reflect that the inmate is in federal custody. Once the paperwork is "re-written," the Sheriff's Office regards the inmate as being in the custody of ICE and places the inmate in jail cells at the Riverhead facility that are rented by ICE from the Sheriff.

Francis's case was handled in accordance with the revised policy. Following the conclusion of his court proceeding, at which he was sentenced to time served, he was handcuffed and taken to a courthouse holding cell by members of the Sheriff's Office and was thereafter returned to the Riverhead facility. Upon his return to the Riverhead facility, Francis's paperwork was "re-written" from being an "adult male misdemeanor" case to be being an "adult male warrant" case based on the ICE warrant, and Francis was regarded by the Sheriff as being in the custody of ICE. Francis was placed in a jail cell rented by ICE.

The present habeas corpus proceeding was commenced on Francis's behalf by Jordan Wells, an attorney with the New York Civil Liberties Union Foundation. An order to show cause was signed by a Justice of this Court on December 11, 2017, the day that Francis was detained notwithstanding the termination of the state criminal action against him. Oral argument was held the following day before a panel of this Court.¹

On December 13, 2017, ICE agents retrieved Francis from the Riverhead facility and transferred him to a long-term ICE detention facility. This Court invited the parties to file supplemental pleadings and briefs. This Court also invited the New York State Attorney General and the United States Department of Justice to submit memoranda as amici curiae. As of January 5, 2018, Francis was being held by ICE at the Bergen County Jail in Hackensack, New Jersey, pending removal proceedings in Immigration Court.

The Mootness Exception

The verified petition, dated December 11, 2017, requested the immediate release of Francis and a declaration that his detention was unlawful and in excess of the Sheriff's arrest authority. In a supplemental petition, filed after Francis was transferred from the Sheriff's custody, the petitioner requested that this Court apply the exception to the mootness doctrine and find Francis's arrest by the Sheriff to be unlawful. In support of this request, the petitioner asserts that ICE directs hundreds of detainer requests to the Sheriff annually, with some 405 requests being presented in just the first 10 months of the 2017 fiscal year. The petitioner points out that the Nassau County Sheriff has a policy similar to that followed in Suffolk County² and that ICE also directs hundreds of detainer requests to the Nassau County Sheriff each year. According to the petitioner, 379 requests were made by ICE to the Nassau County Sheriff in the first 10 months of the 2017 fiscal year. The Sheriff has not advanced any argument in opposition to the petitioner's request that we invoke the exception to the mootness doctrine and reach the merits. Likewise, none of the amici suggest that we treat the controversy as moot.

"It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights...