By Katie Krahulik
The Hofstra Law Clinic and the Deportation Defense Clinic set a state precedent on Monday, Nov. 20 after filing a lawsuit against the Nassau County Police Department (NCPD) claiming that their immigration detainment policies are “unlawful.” The clinic’s goal is to cease the efforts of police to honor what the plaintiff is calling illegal Immigration and Customs Enforcement (ICE) warrants and detainers. The practice is condoned under federal law and even encouraged under Nassau County Policy 3610, but it contradicts a New York State criminal procedure law which is the basis for the litigation. This is the first lawsuit of its kind in New York and it is gaining major media attention from organizations such as The New York Times, Newsday, News 12, WABC, CBS, Telemundo, 1010 WINS, the New York Law Journal and others.
Roni Amit, a fellow at the Deportation Defense Clinic and the head attorney for the plaintiff explained their legal basis for the law suit. “Under New York law, the police must have a judicial warrant for an arrest or in the absence of a judicial warrant, they must have reasonable cause to believe that a crime is being or has been committed in order to make an arrest,” Amit said. “Detaining someone on the basis of an ICE warrant or detainer does not meet these criteria. An ICE warrant is not a judicial warrant. It is issued by and for federal officials. It does not give local law enforcement officials any independent arrest authority, nor does it provide reasonable cause to believe that a crime is or was being committed.”
Policy 3610 was enacted in Nassau County in 2007, and allows for law enforcement to arrest foreign-born individuals without reasonable cause or a judicial warrant. The policy allows for the use of an ICE warrant which accompanies an ICE detainer. The plaintiff defines an ICE detainer as “a request that a local law enforcement agency hold an individual for up to 48 hours beyond the time that they should have been released so that ICE can assume custody of the individual.” Under the New York Criminal Procedure Law, the only time an officer may make a warrantless arrest is if there is “reasonable cause to believe that a crime is being or has been committed.” The plaintiff argues that living in the United States without legal permission cannot be defined as a crime in New York State, and thus is seeking a declaratory judgement against Nassau County that its policy is unlawful.
The litigation is filed on behalf of longtime Nassau County resident Jane Doe, an immigrant at risk of unlawful arrest under Policy 3610. The lawsuit is also on behalf of a nonprofit organization for Long Island immigrants called the Central American Refugee Center (CARACEC). Many foreign-born individuals, such as Doe, a 26-year-old female with a general equivalency diploma who wishes to attend college, are seeking asylum in the United States in fear of persecution in their home country. Some of Jane Doe’s family members have been deported due to Policy 3610, only to face horrible consequences upon their return to their native country.
Attorney Elise Damas is representing CARECEN, and she said even the most routine contact with police can result in an ICE detainer for immigrants. While she argues that it is in violation of New York State law, she also says this activity is harmful for the entire community.
“Nearly one in four N[assau] C[ounty] residents is foreign-born, hailing from more than 145 different countries and contrary to common belief, the majority of these immigrants are longtime Nassau County residents having contributed to our communities and local economies for years, if not decades … I hear accounts everyday by immigrants from the undocumented to Green Card holders of how they fear police,” Damas said. “But this fear comes with very serious repercussions for all Long Islanders. This fear causes immigrants to fear contact with police to include reporting crimes. When immigrants don’t report crimes, our Long Island communities become less safe for all Long Island residents, not just for immigrants.”
Hofstra law students Deborah Kick and Karn Sharma worked as legal interns on the case and have been major contributors to the litigation. Under the supervision of Amit, they are representing Hofstra University in a case that has the potential to be revolutionary. “The Hofstra community should take interest in the lawsuit because the people affected by the policy we are challenging are our friends and neighbors. These are residents of our community who not only bolster our economy, but also contribute to the multicultural essence of Long Island,” Sharma said. “Furthermore, it is dangerous to allow any government entity, especially a local police department, to act outside of its authority. We are all subject to the same law and this applies to the police as well.”
Kick said the clinic’s next course of action depends on the response from the county. She said, if they have to, they will take the case straight to the Nassau County Supreme Court to litigate it before a judge.
“I think our legal claim is very solid because what we’re essentially pointing to is that they’re blatantly violating New York Law. So it’s a solid legal argument, not just a social justice issue,” Kick said. She explained that the team is hopeful this case will have a domino effect on other communities nationwide.
“Our hopes for the outcome are not just legal based, we’re hoping for this to have a sort of chain reaction where maybe Suffolk County or New York City has a policy like this, where other police departments will be examined and their policies will be examined.”
Nassau County is to respond 20 days after the suit is filed. They are expected to deliver their response on Dec. 11, 2017.
Until then, Kick and her team are left to wait in anxious anticipation that their work might spark positive change. “There’s a phrase in Judaism called ‘tikkun olam’ which translates into English ‘repairing the world.’ So that’s what I’d like to think that I am doing by this lawsuit and that we are doing and what the clinic is doing – repairing the world.”