New York City Wants US Immigration Officials to Get Lost

Sick of harsh federal policies and gridlock in Washington, NYC officials are set to box out the Immigration and Customs Enforcement agency from messing with city prisoners suspected of being in the country illegally.

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Oct 8 2014, 7:00pm

A sign at the entrance to NYC's most notorious prison. Photo via Flickr user Matt Green

Rikers Island is the latest flashpoint in the debate over immigration in the United States. Inside the notorious New York detention center's US Immigration and Customs Enforcement (ICE) office, 3,000 people were held on “detainer” last year; the city is legally required to hold any criminal suspect believed to have entered the country illegally in custody for two days before handing them over to federal authorities for further investigation and possible deportation. Since 2008, nearly 369,000 New Yorkers have been told to take a hike.

Now ICE officials are about to join them.

Legislation introduced in the City Council on Tuesday would have NYC cease honoring detainer requests made by the federal government, effectually forcing the ICE office on Riker’s Island to close up shop. The city would join 200 jurisdictions across the country—including LA, San Diego, Newark, and Chicago—that refuse to work with the Feds to imprison those believed to be illegal immigrants.

By doing so, New York could help compensate for the complete abandonment of the issue by Congress, according to Camille Mackler, the director of legal initiatives at the New York Immigrant Coalition. This is especially important in the context of a midterm election year in which Republicans hostile to illegal immigrants are expected to make gains.

“Using the criminal system to funnel individuals into removal proceedings often leads to deportation and permanent exile from one’s friends, family, and life in the United States regardless of the nature—or indeed the guilt—of the underlying offense,” Mackler told me. “In other words, the punishment does not fit the crime.”

That funneling began in 2008 with a post-9/11 initiative known as Secure Communities, which allowed ICE and other federal authorities to access local and statewide databases of fingerprints and hone in on those believed to belong to illegal immigrants. In New York City, any person arrested must be fingerprinted, no matter their country of origin. So in a city known for welcoming outsiders, this has provided a bevy of enforcement prospects for the US government.

But now the feds have to maneuver around city and state rules, as nearly 40 counties in New York have said they won't routinely jail suspected undocumented immigrants. However, the NYC bill will likely include two exceptions: one for subjects who are known to have committed a “violent or serious crime,” and another for those who have been issued a warrant by a federal judge. ICE insists these are top priority cases.

“ICE will continue to work cooperatively with law enforcement partners throughout New York as the agency seeks to enforce its priorities through the identification and removal of convicted criminals and other public safety threats,” Luis Martinez, an agency spokesman, told the Wall Street Journal.

But even  if ICE officials are stressing public safety as their main concern, the linchpin of our failed immigration policy for decades has been time. Immigrants are often stuck in the clogged pipelines of the bureaucracy for weeks, if not months. Some visa applicants wait years to receive a green card, and the current crisis at the border has thousands of migrant children being held in towns along the Rio Grande waiting for their fates to be decided.

On Riker’s Island, the situation is no different. If the recent New Yorker account of teenager Kalief Browder being held behind bars for years after allegedly stealing a backpack told us anything, it's that this is a place where people tend to slip through the cracks. For those detained on suspicion of illegal entry into the country, incarceration time can extend far longer than the letter of the law would have you believe.

Jordan Wells, a lawyer for the New York Civil Liberties Union, recounted one instance to me where he represented a man who was on held on detainer for two months in Rikers. Then he was held by federal authorities in immigrant detainment for seven months before finally being released. The offense: a subway turnstile jump.

In this strange concoction of federal rules and the “broken windows” policy, Wells said the US government classifies illegal immigration as a serious offense, which means people can be kept in cells for crimes that would “otherwise be a slap on the wrist in New York City criminal court.” In some jurisdictions, the NYCLU lawyer added, judges often set high bail on detainer subjects, providing yet another hurdle to due process.

Wells argues that the ICE policy has been an infringement upon Fourth Amendment rights for some time. After all, you’re not supposed to be arbitrarily incarcerated or thrown behind bars based on a hunch.

“ICE has tried to give local law enforcement officers the impression that it has the authority to instruct them to make immigration arrests on its behalf, and to do so even absent any judicial determination of probable cause,” Wells told me. “But now that places like New York City have become wise to the legal infirmity of ICE’s detainer regime, ICE is going to have to conform its enforcement practices to comply with the Constitution.”   

The bill, which is the brainchild of City Council Speaker Melissa Mark-Viverito, is expected to pass easily and be signed into law by Mayor Bill de Blasio. Almost as important, NYPD Commissioner William Bratton has indicated he's on board with its goals. 

Mark-Viverito has also passed a bill to provide municipal IDs to the city’s 9 million residents in an effort to provide immigrants stuck in limbo with access to cultural institutions and services available to most New Yorkers.

More and more, NYC is becoming a place that can make sane immigration policy happen. It's a welcome contrast with the dysfunction we’ve grown used to down in Washington, DC.

John Surico is a Queens-based freelance journalist. His reporting can be found in the New York Times, the Wall Street Journal, and the Village Voice, among other outlets. Follow him on Twitter.