Is New York really a ‘sanctuary state’?

Last month, Gov. Kathy Hochul said she would be “the first one” to call up immigration officials if a migrant breaks the law. In ensuing comments, Hochul said that while she would protect law-abiding undocumented immigrants who have been in the country for years or decades and have built lives for themselves, she would work with federal authorities to deport those convicted of crimes. 

Speaking to reporters earlier this month at an unrelated event, Hochul drew a distinction between New York City’s laws protecting undocumented immigrants and measures at the state level. “Our sanctuary policies are different,” she said. “We already work with ICE to remove people who've committed crimes and have gone through our system. So that does not change.” At one point in February, Hochul even asserted that the state has “no barriers to law enforcement to work with the federal government on immigration laws.” That is not entirely true, but the measures protecting immigrants at the state level are piecemeal at best.

Unlike New York City, the state does not currently have laws in place that uniformly prohibit collaboration between federal immigration agents and local law enforcement. Nothing on the books expressly prohibits local law enforcement from working with Immigration and Customs Enforcement or Customs and Border Patrol, and the restrictions do exist are an amalgam of top-down executive orders, case law and individual legislative measures.

Still, state leaders have taken some steps to minimize cooperation with the federal authorities. 

The most commonly referenced statewide action came early in Trump’s first term, when then-Gov. Andrew Cuomo signed an Executive Order 170 in 2017. “New York became the Empire State due to the contributions of immigrants from every corner of the globe and we will not let the politics of fear and intimidation divide us,” Cuomo said in a statement at the time. That order, which is still in place, prohibits state law enforcement and other state employees from providing immigration information to federal authorities “for the purpose of federal civil immigration enforcement, unless required by law.”

The executive order also prohibits state employees from asking people about their immigration status, and prevents state law enforcement from doing the same “unless investigating such individual's illegal activity.” Under the executive order, state law enforcement cannot use any of its resources for the sole purpose of investigating or apprehending immigrants “wanted only for violating a civil immigration offense,” nor can they use “any police action” simply because someone is undocumented. 

Cuomo followed up that executive order with a second, related one in 2018. That order states that federal immigration agents can only make civil arrests at state facilities if they have a judicial warrant or order. Requiring judicial warrants for arrests was important since ICE agents often execute administrative warrants that are signed by their own superiors rather than by an independent judge. Cuomo’s accompanying executive order dovetailed with a 2018 state court ruling that limited local law enforcement from honoring ICE “detainer” requests that don’t have an accompanying judicial warrant. That’s when immigration officials ask local authorities to hold people in detention beyond their scheduled release date to assist with immigration enforcement. Those requests often come without a warrant, and advocates and the state attorney general had long held that state law did not permit local authorities to make warrantless immigration arrests. However, the court ruling does not prevent local law enforcement from sharing information with federal authorities.

Protections for immigrants were further expanded in 2020, when Cuomo signed the Protect Our Courts Act, which prohibits ICE agents from arresting people in and around courthouses without a judicial warrant. It covers state, city and municipal courthouses, but not federal ones. The law also requires immigration officials to identify themselves if they enter a courthouse, though it does not prevent them from surveilling outside.

Cuomo took earlier steps to minimize law enforcement cooperation with ICE even before Trump’s election. In 2011, half a year into his first term, the former governor announced that New York would suspend its participation in a federal immigration enforcement program known as Secure Communities. The program, which was started by former President George W. Bush and continued into the Obama administration, was a means of data sharing between state, local and federal officials to check the immigration status of every person arrested anywhere in the country through fingerprinting. At the time, New York was the second state to withdraw from the initiative, but the federal government implemented it in New York in 2012 anyway despite the opposition. The program was later discontinued, though Trump brought it back in 2017. President Biden ended the program again in 2021 – but Trump may try to restart it or implement something similar once he returns to the White House.

Other laws are on the books to protect undocumented immigrants in the state. When New York approved its Green Light Law in 2019, which allows undocumented immigrants to get drivers licenses, the measure included a provision to prevent federal immigration authorities from accessing the state’s Department of Motor Vehicles records. It includes exceptions for cases where officials have a warrant or a court order. In 2021, Hochul signed legislation that classifies certain threats to someone’s immigration status as extortion or coercion. That law doesn’t directly relate to state or local authorities collaborating with ICE agents, but Hochul touted the measure as a means “to support people who are trying to build better lives for themselves and their families.”

Last year, Hochul also announced state Department of Labor procedures meant to shield undocumented workers from deportation as a means of retaliation in labor disputes, and to try to help them gain legal work status if they cooperate with Department of Labor investigations. Like the 2021 law she signed, it does not directly prohibit any specific collaboration with federal immigration authorities by local law enforcement agencies.

Some localities, most notably New York City, have enacted much stronger sanctuary laws for undocumented immigrants. During Trump’s first term, the reliably liberal Westchester County enacted its own law limiting local law enforcement from working with ICE. But others have gone a different route. Rensselaer County entered into a formal agreement with federal immigration officials to participate in what’s known as the 287(g) program, which deputizes local law enforcement to carry out federal immigration duties. Rensselaer is currently the only county in the state with an official agreement to assist ICE, but immigrant advocates say that the lack of a comprehensive state policy has allowed other localities in the state to collaborate in more informal ways with ICE. In Nassau County, Republican County Executive Bruce Blakeman has said he intends to cooperate with federal authorities to carry out Trump’s mass deportation plans.

That is a big reason why activists have been pushing hard for the New York for All Act, which would prohibit all state and local law enforcement agencies and correctional facilities from sharing information with federal immigration agents, except when required by law or in response to judicial warrants, and using their resources to assist immigration officials. It would also prohibit all counties and localities across the state from participating in the 287(g) program and codify the 2017 executive order for state employees, while expanding the prohibitions to all other public employees at the county, city or municipal level. But the bill has never made it out of committee or received a public hearing. 

Meanwhile, Republicans want to go in the opposite direction. Rather than strengthen the piecemeal protections, they have introduced legislation dubbed Laken’s Law. The law – which is named after a Georgia nursing student who was murdered by an undocumented immigrant who had previously been arrested in New York – would require state and local law enforcement to notify ICE whenever they arrest someone who is not a U.S. citizen.

For her part, Hochul has said she will announce a “comprehensive approach" to cooperating with federal immigration authorities in the new year. The governor said she has “a whole list” of “serious crimes” that she believes should trigger deportation if committed by an undocumented immigrant, though she also said that she wants undocumented immigrants to make their way through the state’s criminal justice before any deportation proceedings begin. “If I call up ICE and they take them away, or may not take them away, you might be back in another week,” Hochul told reporters earlier this month. 

Hochul has also continued to express support for law-abiding asylum seekers – over 200,000 of whom have come to New York in the past several years, sparking intense debate on immigration policies and methods to support new arrivals. She also clarified that she does not support deporting undocumented immigrants who have lived in the country for years or decades and have become productive members of their communities, nor does she support family separation in instances of mixed-status households.