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N.Y.C. Mayor Bloomberg Signs Bill On 11/22/11 Revamping City's Policy Of Detaining Arrested Undocumented Immigrants VIS-A-VIS ICE Detainer Holds.

by Alan Lee, Esq

The signing yesterday of Intro 656 by Mayor Michael Bloomberg, the New York City law relating to its new policy with regard to honoring immigration detainers placed by US. Immigration and Customs Enforcement (ICE) on persons arrested in the city, marks a new dawn for undocumented immigrants without past or pending criminal misdemeanors and felonies or prior orders of deportation/removal. Impetus for the bill was provided by the fact that roughly half of the people in the Rikers Island jail in 2009 and 2010 on whom ICE issued detainers had no criminal convictions; that the figures were at odds with ICE's stated goal to place detainers on criminal aliens; that the cooperation between the Department of Corrections (DOC) and ICE was eroding trust between immigrants and local law enforcement; and that such cooperation should not be supported by taxpayer dollars.

The new law (slated to take effect 120 days from the date of signing) now provides that a person upon arrest by the police will no longer be held past the time that he/she would otherwise be released from the DOC's custody except for the reasonable time required to conduct a database search to determine if the person has been convicted of a crime; is a defendant in a pending criminal case; has an outstanding criminal warrant in New York State or in any other jurisdiction of the U.S.; is identified as a known gang member or as a possible match in the terrorist screening database; or if the search indicates or the DOC is informed by federal immigration authorities that the individual has an outstanding warrant of removal from ICE or is or has previously been subject to a final order of removal by an immigration court. If a person arrested by the city is not in the above categories, the corrections department will not notify federal immigration authorities of his or her release.

The bill was balanced to the concerns of public safety as it applies to those with violations and not misdemeanors or felonies. It is also consistent with the Obama Administration's decision to use prosecutorial discretion on the approximate 300,000 pending cases in the immigration courts nationwide. An undocumented immigrant who is pulled over and arrested for speeding without criminal or immigration history as outlined above would benefit from this policy. It would apparently not, however, benefit someone with a past history of misdemeanors or felonies or immigration removal.

A problem with the bill is the tension between public safety and possible overcharging on arrests. Many supporters of the bill initially wanted those with pending misdemeanors/ misdemeanor convictions to benefit. We sometimes see in an immigration case a person initially charged with three of four counts of misdemeanors and violations before the person ultimately pleads to one or two violations. Timing is an issue there as an ICE detainer will be honored in a pending criminal case where either a misdemeanor or felony charge is lodged.

Nonetheless Intro 656 is a piece of local legislation for which New York City Council Speaker Christine Quinn, the mayor, and the majority of New York City Council members cosponsoring and supporting the bill should be congratulated.

2011 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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