Lawsuit against Nassau ICE agreement could expand NY’s sanctuary policies

Immigrant rights attorneys have taken aim at the Nassau County Police Department’s controversial agreement with U.S. Immigration and Customs Enforcement, filing a lawsuit in state court arguing it violates existing state case law. Their argument relies heavily on a defining 2018 court decision, and it could have major implications for sanctuary policies in New York, even as state lawmakers finished their legislative year without passing new protections. 

The Nassau County Police Department signed what’s known as a 287(g) agreement with ICE in March. Under the task force model they agreed to – the most expansive of the three types under federal law – ICE would train 10 detectives to carry out certain immigration enforcement actions. That includes questioning people about their immigration status, making civil immigration arrests and detaining people based on civil immigration violations. Although the agreement dates back to March, a spokesperson for Nassau County Executive Bruce Blakeman said the officers have not yet completed their mandatory training or begun exercising immigration enforcement authority. 

In the new lawsuit filed this week, the New York Civil Liberties Union, Latino Justice PRLDEF and the Community Legal Assistance Community at Hofstra University charged that the 287(g) agreement with ICE violates state law. And federal statute states that any agreement between local law enforcement and ICE must adhere to local rules and regulations – in this instance, the federal law does not supersede state law and cannot expand officers’ legal authority beyond what would already be permissible. 

The lawsuit specifically cites Francis v. DeMarco, the 2018 ruling that shapes a significant portion of the state’s sanctuary policies. In that case, the court held that Suffolk County law enforcement (Nassau’s neighbor on Long Island) did not have legal authority to honor ICE detainer requests, which happen when ICE is alerted to an undocumented immigrant in local custody and ask local officials to hold that person beyond their release date. Generally, those requests are not accompanied by a warrant signed by a judge, meaning that local law enforcement is effectively being asked to keep someone in custody when there is no suspicion of a crime.

The 2018 decision has since prevented any local law enforcement from honoring detainer requests from ICE. And though lawmakers have never technically passed legislation codifying the decision, it remains the law of the land as one of New York’s key sanctuary policies. But Suffolk County did not have a 287(g) agreement in place with ICE, as Nassau County now does. Four counties in total – Nassau, Niagara, Rensselaer and Broome – have now signed agreements of varying kinds with ICE that purport to give them authority denied under the court decision. 

The suit brought against the Nassau Police Department is the first test of whether Francis v. DeMarco holds true for certain 287(g) agreements. The panel of state judges who decided that case specifically declined to weigh in on whether it applies to 287(g) agreements, writing in the decision that they do “not have occasion here to address any issues with respect to 287(g) or other formal agreements.” Without explicit guidance, a handful of counties entered into agreements with ICE in order to participate in the kind of civil immigration enforcement that the ruling otherwise banned.

Earlier this year, state Attorney General Letitia James offered her opinion that entering certain 287(g) agreements is illegal. In guidance issued a day before President Donald Trump’s second inauguration, James acknowledged that “it remains unsettled” in state law whether such agreements with ICE would grant local law enforcement the power to make civil immigration arrests and detain people, “given that such arrests and detention would otherwise be unlawful.” So her office recommended that local law enforcement not enter into 287(g) agreements that would otherwise violate state law.

The legal argument brought by NYCLU and the other organizations has other prongs as well. It relies on a landmark 1976 decision in the case People v. DeBour that established strict guidelines not just for arrest and detainment, but also for the legal basis for stopping and questioning a person. Nassau’s 287(g) agreement permits deputized detectives to inquire about a person’s immigration status, something the NYCLU lawsuit argues is not permitted under People v. DeBour. That case only allows people to be stopped and questioned if there is suspicion of a crime, but being undocumented is only a civil offense, not a crime.

The suit also argues more broadly that the Nassau County Police Department did not have a sound reason for entering into the agreement, and that the reasons it has given do not justify it.. Under state law, government agencies must show that agreements and contracts they enter into are not “arbitrary or capricious.” The lawsuit argues that the Nassau County Police Department has done just that by arguing the agreement was done to combat crime when they had no evidence that immigrants have contributed disproportionately to crime. An attorney with Hofstra sent the department a Freedom of Information Law request for data on the immigration status of arrestees, but officials responded that they don’t have such data.

The outcome of the lawsuit wouldn’t impact all 287(g) agreements, only those that would violate state law. Even if NYCLU wins the case, local officials could still sign agreements that would not expand the authority of local law enforcement beyond legislatively established powers (such as information-sharing agreements with ICE). But the case could significantly close off a major avenue that localities sympathetic to Trump’s deportation efforts have taken despite New York’s sanctuary policies. 

For immigrant advocates pushing for a special legislative session in order to pass the New York for All Act that would ban all 287(g) agreements, a favorable ruling in the case would serve to solidify protections for undocumented immigrants in the wake of Albany’s inaction. While an executive order prevents most collaboration between state agencies and ICE, no statewide statute governs what localities can do. The New York for All Act would ban all local government agencies for cooperating with federal immigration agents – and outlawing 287(g) agreements would be one major way of going about that.

Since Trump returned to the White House, law enforcement in three counties have signed new agreements with ICE. Both Nassau and Niagara Counties have adopted the task force model, enabling local police officers to make civil immigration arrests. Short of the passage of new laws to explicitly prevent such agreements, the lawsuit brought by NYCLU and others could be the only thing able to prevent more municipalities from deputizing officers and enforcing civil immigration law at the local level. Given that most of the state’s sanctuary policies have not come about through new statutes, adding to the relevant case law would continue the trend seen so far in the state.