Migrant crisis: Officials' remarks can jeopardize bans

Anything policymakers say can and will be used against them in a court of law.

Two suburban counties, Orange and Rockland, learned that lesson on Tuesday when a federal judge blocked their orders forbidding New York City from relocating any of the tens of thousands of foreign migrants into those counties. The judge's ruling excerpted public remarks by those counties' executives he said suggested unlawful and unconstitutional discrimination.

The city is struggling to find places to shelter the hundreds of migrants arriving in the city daily. Whether remarks by Long Island officials will complicate attempts to keep the migrants off the Island remains to be seen.

In his ruling Tuesday citing the Equal Protection clause of the U.S. Constitution’s 14th Amendment, the judge, Nelson Roman, cited remarks by Rockland County Executive Ed Day, and Day’s counterpart in neighboring Orange, Steven M. Neuhaus.

Day's remarks included that “within that cadre of people who are not vetted, we have child rapists, we have criminals,” potentially the gang MS-13, and a migrant influx poses “a threat to our community.” Neuhaus had said, “Who are these people?” and “What’s their background?” and he said, “I am opposed to these asylum-seekers being sent to our communities.”

While not as explicit or prolific, remarks by several Long Island leaders anticipating New York City sending migrants out east could come under a judicial microscope if challenged in court.

There are now over 72,000 migrants who have arrived in the city, mostly from Latin America, who began coming last spring. Many are crossing the U.S.-Mexico border, and then are bused into the city under a program by border-state governors to protest Biden administration policies.

Mayor Eric Adams hasn’t had much luck persuading other New York State jurisdictions to accept some number of the migrants. Although the city hasn’t yet asked Nassau and Suffolk counties to allow migrants to be placed on Long Island, Adams’ deputy suggested last month that it could happen at some point. 

Román's ruling said the Orange and Rockland orders are likely unconstitutional, and he issued a preliminary injunction blocking their enforcement. Still, the practical effect is unclear for now, because separate temporary restraining orders issued by courts in those counties have suspended any relocation.

Separately, on June 7, the city sued 31 municipalities, including Riverhead and Suffolk, seeking to overturn their emergency orders barring migrant relocation.

Their words in focus

Brooklyn Law School Professor William D. Araiza said that one way challengers can seek to void an order is by proving discriminatory intent — even if comments in question are subtle. It can be a fine line, and it’s up to a court to determine whether contemporaneous statements are sufficient to show unlawful motives.

And absent explicit discrimination baked into a policy, “the plaintiffs do indeed have to allege discriminatory intent, and they need to do their best to scrape up enough of these factors to convince a court that, yeah, it’s over the line,” said Araiza, author of "Animus: A Short Introduction to Bias in the Law" and "Enforcing the Equal Protection Clause: Congressional Power, Judicial Doctrine, and Constitutional Law."

After signing an emergency order May 16 blocking any placements from the city, Riverhead Town Supervisor Yvette Aguiar said she worried about “disturbances” and “an influx disturbing our community.”

“It’s not healthy for our community,” said Aguiar, who told Newsday she renews her order every five days and plans to continue to do so. “We are a small community.”

Announcing on May 21 a plan to hire a lawyer to figure out how to stop migrants from being placed in Suffolk, the county legislature’s presiding officer, Kevin J. McCaffrey, several times invoked the specter of “unvetted migrants,” stressing police and public safety. 

“We’re not prepared to take in unvetted migrants from the border. We’re not prepared to do that,” he said. “We feel it would be an unfair burden on our public-safety system.”

Newsday read the Long Island leaders' words to Araiza. He said: "Those are the sorts of statements that in the right context could prove discriminatory intent."

McCaffrey's spokesman, Mike Martino, didn't comment.

Suffolk County Executive Steve Bellone, who signed an order restricting any attempts by the city to place migrants without county permission, has been more circumspect in his public comments. Bellone said last month: “It falls in your lap, and you’ve gotta address it, and we’re committed to doing that in a responsible, fiscally responsible and a humane way as well."

His spokeswomen, Nicole Russo and Marykate Guilfoyle, didn't return an email seeking comment.

The hunt to identify motives

Nearly all the Long Island leaders said their intent is not to be anti-immigrant. 

A lead lawyer for the New York Civil Liberties Union who got the Orange and Rockland orders blocked, Amy Belsher, said plaintiffs regularly search public statements, press accounts and search via Google to identify potentially discriminatory motives behind such orders.

"Seeing what's out there online is always a good first step," she said.

Identifying improper motives is one of several avenues to challenge an order or law's legality and constitutionality.

In an important case governing Long Island and the rest of the region, the U.S. Appeals Court for the Second Circuit ruled in a 2016 case called Mhany Mgmt. v. County of Nassau that coded language during a decision-making process about below-market-rate housing in Garden City — for example, that allowing it would ruin the “flavor” and “character” of the village — helped establish discriminatory motive.

Still, even if a court finds the likelihood of discriminatory intent on the basis of a prohibited characteristic like race, or national origin, that doesn’t necessarily doom a law, order or other government action, Araiza said.

“‘You’re right, your honor. You got us. Bad intent was one of the things motivating us. But you know what? Even if our hearts had been golden, we would have made the same decision because of these nonracial factors,’” Araiza said, explaining what a jurisdiction might argue to a court.

Leaders of some jurisdictions that passed emergency orders — at least 30 out of the state’s 62 counties, according to New York City — have said they worried about the long-term costs of an influx of migrants.

“Here, the question is, is there a legitimate and compelling interest on the part of these towns to keep these individuals from coming in?” said John J. Donohue III, a Stanford Law professor.

New York City, which is under a rare-in-the-nation and decades-old judicial mandate to shelter whoever in the city needs it, has promised to pay costs toward accommodating the migrants. But these promises to pay are not indefinite and might not cover all costs, the jurisdictions retort.

Aguiar, the Riverhead supervisor, rejects any suggestion that efforts to stop migrant placements by the city are discriminatory; it's about enforcing the town code, she said.

“No one is looking to discriminate. We live in harmony. We have a very diversified community, and we’re gonna keep it that way,” she said, adding: “We’re talking about our code, and we need to stay focused.” 

Sometimes, Professor Araiza said, it's most advantageous to government policymakers to say as little as possible in public: “It is prudent for them to shut their traps.”

By Matthew Chayes

matthew.chayes@newsday.comchayesmatthew

Matthew Chayes, a Newsday reporter since 2007, covers New York City.