Suffolk sheriff reverses policy on holding immigrant inmates

The Suffolk County sheriff no longer will ask for a judge’s order before detaining immigrant inmates wanted by federal agents for deportation — a policy reversal that distances the county from the ranks of so-called “sanctuary cities.”

Suffolk County Sheriff Vincent DeMarco confirmed that correctional facilities under his watch have returned to detaining immigrants jailed on other offenses for up to 48 hours when they are wanted by Immigration and Customs Enforcement, a branch of the U.S. Department of Homeland Security.

The sheriff, citing concerns of potential legal claims over constitutional rights, in September 2014 had stopped holding immigrants for the federal agency unless its agents presented a warrant from an immigration judge.

The policy change comes as the incoming administration of President-elect Donald Trump promises to end “sanctuary cities,” a loose term used to designate local governments thought to be harboring immigrants who are in the United States illegally.

But DeMarco said his policy reversal is due to legal analysis and not political considerations. Changes in ICE’s enforcement program with law enforcement agencies and a review of a recent legal case out of Nassau County convinced DeMarco that he could reinstitute the practice, despite objections from immigrant advocates.

Between Dec. 1 and Dec. 21, ICE had taken seven detainees — compared with 10 handed off in the entire month of December last year, DeMarco said. Suffolk’s new detention policy went into place on Dec. 2, but it’s not clear how many of the new cases were held beyond release on nonjudicial ICE detention requests and warrants.

Homeland Security has preferred issuing nonjudicial detentions and warrants for immigrants “whose removal has been determined by a senior ICE official to serve an important federal interest,” sidestepping generally backlogged immigration courts.

DeMarco said that while he is acting on legal advice from the county, he also supports targeting immigrants in custody who have previous convictions or who fit national criteria for deportation.

“I do believe this is good public policy because it focuses on criminals,” DeMarco said. “We’re talking about people who entered the country illegally and have committed crimes and have been convicted of crimes.”

Measured support

In a statement Thursday, Suffolk County Executive Steve Bellone expressed measured support for the reinstated policy.

“I opposed open-ended detainer requests because, among other things, they placed an enormous burden on local government to spend millions on incarceration to cover unfunded mandates,” Bellone said. “However, Suffolk County works closely with federal law enforcement, and a limited, 48-hour detainer represents a step in the right direction.”

Suffolk County Police Commissioner Timothy Sini said his department also would honor an administrative warrant, “but this doesn’t come up often for the Suffolk County Police Department because we don’t hold people in custody for a long period of time.”

Nassau County’s jail already was honoring immigrant detention requests that came either with administrative warrants or a judicial order of deportation, Nassau County Sheriff Michael Sposato said.

Suffolk’s policy turnabout takes the county off unofficial lists of so-called “sanctuary cities” — local governments deemed to have instituted protective measures for immigrants in the country illegally — in the view of some immigration enforcement proponents.

Sanctuary cities could become potential targets under a Trump administration, according to the Center for Immigration Studies, a group in Washington, D.C., that favors strict enforcement and reduced immigration.

In Trump’s “Contract with the American Voter,” a document issued as a campaign pledge, he promises to “cancel all federal funding to sanctuary cities” within the first 100 days of his administration, although what constitutes a sanctuary is not specified. Trump’s press office did not respond to a request for comment last week.

In Suffolk, DeMarco’s department handed off 868 inmates to immigration enforcement agents between September 2014 and September 2016. He said his office has continued to work with federal officials and that immigration agents were able to pick up wanted inmates as they were due for release.

Access to biometric data

Rachael Yong Yow, an ICE spokeswoman in New York, said increasing numbers of law enforcement agencies have joined the agency’s Priority Enforcement Program, which seeks to increase cooperation with local law enforcement, since the program was introduced in July 2015. The PEP, as it also is known, gives the agency access to biometric data of people under arrest to run through its database of immigrants sought for removal.

The program replaced a more controversial one known as Secure Communities that critics had said nabbed immigrants with minor offenses in an indiscriminate deportation net.

“DHS continues to make significant strides in building partnerships with local law enforcement and community leaders through PEP to ensure a common-sense approach that focuses enforcement resources on convicted criminals and individuals who threaten public safety and national security while also taking into account important community policing needs,” Yong Yow said in a statement.

But Suffolk’s return to holding immigrants is seen as an outrage by immigrant advocacy groups, whose leaders had been asking county officials to reaffirm their willingness to protect immigrant communities in what they see as a hostile postelection climate.

Some believe the move could be DeMarco’s attempt to ride a political wave. The sheriff has been elected to his seat with cross-party endorsements from Democrats, Republicans and Conservatives, but may be facing opposition next November for the Conservative line, a party that embraces pro-enforcement views.

“We are disappointed, to say the least, that these measures are being implemented immediately after the recent election,” said Walter Barrientos, Long Island organizer for Make the Road New York, a nonprofit in Brentwood that advocates on issues affecting Latinos. “There was news of the sheriff being challenged for the endorsement of the Conservative Party and we don’t think this is a coincidence. We are seeing where immigrants are being scapegoated and being used to score political points.”

DeMarco maintains that his department never fully stopped cooperating with federal law enforcement in immigration cases. He said he had started a legal review of his department’s practice after meeting with Homeland Security officials in October, before the election was decided and independently of any challenges he may face for his seat.

He said he initiated the review upon finding out that immigration enforcement authorities “were changing the way they do business to address concerns of probable cause” cited by civil liberties and immigrant advocates, who want every detainer request to be examined by a judge prior to sheriffs authorizing jail holds.

Agency details reasons

Under PEP, the immigration enforcement agency now details its reasons to request detentions in the forms it uses to relay those wishes to local law enforcement agencies.

“We would not be violating anyone’s right,” DeMarco said.

Documents provided by Suffolk County show that DeMarco wrote to County Attorney Dennis Brown on Nov. 14 asking for a review of Homeland Security procedures concerning detentions and a December 2015 decision from Supreme Court in Nassau County, which affirmed that county’s right to hold immigrants on detainers and administrative warrants.

ICE’s new forms and administrative warrants, issued by an agency and not by an immigration judge, list several reasons for “probable cause” to hold an immigrant inmate for removal — including facing pending removal proceedings over convictions ranging from felonies to suspicion of terrorism or espionage to involvement in criminal street gangs.

Brown’s opinion, rendered in a Dec. 2 memorandum to DeMarco, concludes that if the new detainer and arrest forms from ICE “are facially sufficient to demonstrate that probable cause exists” that an immigrant is subject for removal, the sheriff’s office “may rely upon their fellow law enforcement agents to detain the alien for up to 48 hours after the subject is no longer otherwise detainable in order to give DHS an opportunity to seize the subject of the deportation order.”

Irma Solis, director of the Suffolk County Chapter of the New York Civil Liberties Union, considers that reasoning faulty, partly because it places a county-level court decision above due process rights enshrined in the U.S. Constitution.

‘Back to old practices’

“We are really disappointed in the sheriff’s reverting back to old practices that we thought we had made very clear that they were violating the due process rights of many of those who were detained,” said Solis, who was among a group of advocates who had met with DeMarco on Dec. 12 to press him on the matter. “The fact that they are simply taking an ICE agent’s word as probable cause is troubling, without an actual judicial review.”

She said advocacy groups are exploring “all options” to try to stop county jails here and elsewhere from serving as immigrant detention centers.

Those who favor stricter enforcement long have advocated for increased removals through the criminal justice system.

A recent analysis from the Center for Immigration Studies touted Suffolk’s new approach as a compromise to bolster removal operations.

Dan Cadman, a research fellow with that group, contends “there is no provision in immigration law for a judicial warrant in deportation proceedings” and pointed out that immigration judges themselves are administrative officers who can issue warrants. The agency is authorized by Congress to seek and deport people in violation of immigration laws, he said.

Cadman said he expects more municipalities to follow Suffolk’s lead as Trump prepares to take office.

“I mean, let’s face it . . . a new administration is coming in and the new administration has said, unambiguously, they’re going to take an entirely different and harder approach toward sanctuaries,” he said. “I don’t think that many counties and many county sheriffs and some police departments want to be between the hammer and the anvil.”