STATE OF NEW YORK
________________________________________________________________________
6071
2019-2020 Regular Sessions
IN ASSEMBLY
February 26, 2019
___________
Introduced by M. of A. ORTIZ, TAYLOR, COOK, BICHOTTE, BARRON, CRESPO,
RODRIGUEZ, ARROYO, ABINANTI, LENTOL, JAFFEE, WEPRIN, RAMOS, LAVINE,
SEAWRIGHT, BLAKE, DE LA ROSA -- Multi-Sponsored by -- M. of A. SIMON
-- read once and referred to the Committee on Governmental Operations
AN ACT to amend the executive law and the correction law, in relation to
standards and policies for cooperation with federal immigration
authorities
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The executive law is amended by adding a new article 15-AA
2 to read as follows:
3 ARTICLE 15-AA
4 COOPERATION WITH IMMIGRATION AUTHORITIES
5 Section 319. Definitions.
6 319-a. Restrictions on New York law enforcement agency actions.
7 319-b. Standards for responding to United States immigration and
8 customs enforcement holds.
9 319-c. Cooperation policies.
10 319-d. Severability.
11 § 319. Definitions. For the purposes of this article, the following
12 terms have the following meanings:
13 1. "New York law enforcement agency" means a state or local law
14 enforcement agency, including school police or security departments.
15 "New York law enforcement agency" does not include the department of
16 corrections and community supervision.
17 2. "Local agency" means any city, county, city and county, special
18 district, or other political subdivision of the state.
19 3. "Law enforcement official" means any local agency or officer of a
20 local agency authorized to enforce criminal statutes, regulations, or
21 local ordinances or to operate jails or to maintain custody of persons
22 in jails, and any person or local agency authorized to operate juvenile
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10110-01-9
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1 detention facilities or to maintain custody of persons in juvenile
2 detention facilities.
3 4. "Civil immigration warrant" means any warrant for a violation of
4 federal civil immigration law, and includes civil immigration warrants
5 entered in the national crime information center database.
6 5. "Immigration authority" means any federal, state, or local officer,
7 employee, or person performing immigration enforcement functions.
8 6. "Health facility" means hospitals as defined in subdivision one of
9 section twenty-eight hundred one of the public health law and facilities
10 as defined in subdivision six of section 1.03 of the mental hygiene law.
11 7. "Immigration enforcement agency" means the United States immi-
12 gration and customs enforcement (ICE) or United States customs and
13 border protection as well as any other immigration enforcement authori-
14 ty.
15 8. "Hold request" means a federal immigration enforcement agency
16 request that a New York law enforcement agency or the department of
17 corrections and community supervision maintain custody of a person
18 currently in its custody beyond the time he or she would otherwise be
19 eligible for release in order to facilitate transfer to ICE and
20 includes, but is not limited to, department of homeland security (DHS)
21 form I-247D.
22 9. "Notification request" means an immigration enforcement agency
23 request that a New York law enforcement agency or the department of
24 corrections and community supervision inform ICE of the release date and
25 time in advance of the public of a person in its custody and includes,
26 but is not limited to, DHS form I-247N.
27 10. "Transfer request" means an immigration enforcement agency request
28 that a New York law enforcement agency or the department of corrections
29 and community supervision facilitate the transfer of a person in its
30 custody to ICE, and includes, but is not limited to, DHS form I-247X.
31 11. "Immigration enforcement" means any and all efforts to investi-
32 gate, enforce, or assist in the investigation or enforcement of any
33 federal civil immigration law, and also includes any and all efforts to
34 investigate, enforce, or assist in the investigation or enforcement of
35 any federal criminal immigration law that penalizes a person's presence
36 in, entry, or reentry to, or employment in, the United States.
37 12. "Immigration hold" means an immigration detainer issued by an
38 authorized immigration officer, pursuant to section 287.7 of title eight
39 of the Code of Federal Regulations, that requests that the law enforce-
40 ment official to maintain custody of a person for a period not to exceed
41 forty-eight hours, excluding Saturdays, Sundays, and holidays, and to
42 advise the authorized immigration officer prior to the release of such
43 person.
44 13. "Joint law enforcement task force" means at least one New York law
45 enforcement agency collaborating, engaging, or partnering with at least
46 one federal law enforcement agency in investigating federal or state
47 crimes.
48 14. "Judicial probable cause determination" means a determination made
49 by a federal judge or federal magistrate judge that probable cause
50 exists that a person has violated federal criminal immigration law and
51 that authorizes a law enforcement officer to arrest and take such person
52 into custody.
53 15. "Judicial warrant" means a warrant based on probable cause for a
54 violation of federal criminal immigration law and issued by a federal
55 judge or a federal magistrate judge that authorizes a law enforcement
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1 officer to arrest and take into custody the person who is the subject of
2 the warrant.
3 16. "Public schools" means all public elementary and secondary schools
4 under the jurisdiction of local governing boards or a charter school
5 board, the state university as defined in subdivision one of section
6 three hundred fifty of the education law and community colleges as
7 defined in subdivision two of section sixty-three hundred one of the
8 education law.
9 17. "School police and security departments" includes police and secu-
10 rity departments of the state university of New York, community
11 colleges, charter schools, public elementary and secondary schools and
12 school districts.
13 § 319-a. Restrictions on New York law enforcement agency actions. 1.
14 New York law enforcement agencies shall not:
15 (a) Use agency or department moneys or personnel to investigate,
16 interrogate, detain, detect, or arrest persons for immigration enforce-
17 ment purposes, including any of the following:
18 (i) Inquiring into a person's immigration status.
19 (ii) Detaining a person on the basis of a hold request.
20 (iii) Providing information regarding a person's release date or
21 responding to requests for notification by providing release dates or
22 other information unless that information is available to the public, or
23 is in response to a notification request from immigration authorities in
24 accordance with section three hundred nineteen-b of this article.
25 Responses are never required, but are permitted under this subdivision,
26 provided that they do not violate any local law or policy.
27 (iv) Providing personal information about a person as defined in
28 subdivision seven of section ninety-two of the public officers law,
29 including, but not limited to, such person's home address or work
30 address unless that information is available to the public.
31 (v) Making or intentionally participating in arrests based on civil
32 immigration warrants.
33 (vi) Assisting immigration authorities in the activities described in
34 paragraph three of subsection (a) of section thirteen hundred fifty-sev-
35 en of title eight of the United States code.
36 (vii) Performing the functions of an immigration officer, whether
37 pursuant to subsection (g) of section thirteen hundred fifty-seven of
38 title eight of the United States code or any other law, regulation, or
39 policy, whether formal or informal.
40 (b) Place peace officers under the supervision of federal agencies or
41 employ peace officers deputized as special federal officers or special
42 federal deputies for purposes of immigration enforcement. All peace
43 officers remain subject to New York law governing conduct of peace offi-
44 cers and the policies of the employing agency.
45 (c) Use immigration authorities as interpreters for law enforcement
46 matters relating to persons in agency or department custody.
47 (d) Transfer a person to immigration authorities unless authorized by
48 a judicial warrant or judicial probable cause determination, or in
49 accordance with section three hundred nineteen-b of this article.
50 (e) Provide office space exclusively dedicated for immigration author-
51 ities for use within a city or county law enforcement facility.
52 (f) Contract with the federal government for use of New York law
53 enforcement agency facilities to house individuals as federal detainees.
54 2. Notwithstanding the limitations in subdivision one of this section,
55 this section does not prevent any New York law enforcement agency from
56 doing any of the following that does not violate any policy of the law
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1 enforcement agency or any local law or policy of the jurisdiction in
2 which the agency is operating:
3 (a) Investigating, enforcing, or detaining upon reasonable suspicion
4 of, or arresting for a violation of, subsection (a) of section thirteen
5 hundred twenty-six of title eight of the United States code that may be
6 subject to the enhancement specified in paragraph two of subsection (b)
7 of section thirteen hundred twenty-six of title eight of the United
8 States code and that is detected during an unrelated law enforcement
9 activity. Transfers to immigration authorities are permitted under such
10 subsection only in accordance with paragraph (d) of subdivision one of
11 this section.
12 (b) Responding to a request from immigration authorities for informa-
13 tion about a specific person's criminal history, including previous
14 criminal arrests, convictions, or similar criminal history information
15 accessed through the division of criminal justice services, where other-
16 wise permitted by state law.
17 (c) Conducting enforcement or investigative duties associated with a
18 joint law enforcement task force, including the sharing of confidential
19 information with other law enforcement agencies for purposes of task
20 force investigations, so long as the following conditions are met:
21 (i) The primary purpose of the joint law enforcement task force is not
22 immigration enforcement, as defined in subdivision eleven of section
23 three hundred nineteen of this article.
24 (ii) The enforcement or investigative duties are primarily related to
25 a violation of state or federal law unrelated to immigration enforce-
26 ment.
27 (iii) Participation in the task force by a New York law enforcement
28 agency does not violate any local law or policy to which it is otherwise
29 subject.
30 (d) Making inquiries into information necessary to certify a person
31 who has been identified as a potential crime or trafficking victim for a
32 T or U visa pursuant to subparagraphs (T) and (U) of paragraph fifteen
33 of subsection (a) of section eleven hundred one of title eight of the
34 United States code or to comply with paragraph five of subsection (d) of
35 section nine hundred twenty-two of title eighteen of the United States
36 code.
37 (e) Giving immigration authorities access to interview a person in
38 agency or department custody.
39 3. (a) If a New York law enforcement agency chooses to participate in
40 a joint law enforcement task force, for which such agency has agreed to
41 dedicate personnel or resources on an ongoing basis, such agency shall
42 submit a report annually to the division of criminal justice services.
43 Such agency shall report the following information, if known, for each
44 task force of which it is a member:
45 (i) The purpose of the task force;
46 (ii) The federal, state, and local law enforcement agencies involved;
47 (iii) The total number of arrests made during the reporting period;
48 and
49 (iv) The number of people arrested for immigration enforcement
50 purposes.
51 (b) All law enforcement agencies shall report annually to the division
52 of criminal justice services, in a manner specified by the commissioner
53 of the division of criminal justice services, the number of transfers
54 pursuant to paragraph (d) of subdivision one of this section, and the
55 offense that allowed for the transfer, pursuant to such paragraph.
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1 (c) All records described in this subdivision shall be public records
2 for purposes of article six of the public officers law.
3 (d) If more than one New York law enforcement agency is participating
4 in a joint task force that meets the reporting requirement pursuant to
5 this section, the joint task force shall designate a local or state
6 agency responsible for completing the reporting requirement.
7 4. The commissioner of the division of criminal justice services, by
8 March first, two thousand twenty-one, and annually thereafter, shall
9 report on the total number of arrests made by joint law enforcement task
10 forces, and the total number of arrests made for the purpose of immi-
11 gration enforcement by all task force participants, including federal
12 law enforcement agencies. To the extent that disclosure of a particular
13 item of information would endanger the safety of a person involved in an
14 investigation, or would endanger the successful completion of the inves-
15 tigation or a related investigation, that information shall not be
16 included in such report. The commissioner of the division of criminal
17 justice services shall post the reports required by this subdivision on
18 the division of criminal justice services internet web site.
19 5. This section does not prohibit or restrict any government entity or
20 official from sending to, or receiving from, federal immigration author-
21 ities, information regarding the citizenship or immigration status,
22 lawful or unlawful, of a person, or from requesting from federal immi-
23 gration authorities immigration status information, lawful or unlawful,
24 of any person, or maintaining or exchanging that information with any
25 other federal, state, or local government entity, pursuant to sections
26 thirteen hundred seventy-three and sixteen hundred forty-four of title
27 eight of the United States code.
28 6. Nothing in this section shall prohibit a New York law enforcement
29 agency from asserting its own jurisdiction over criminal law enforcement
30 matters.
31 § 319-b. Standards for responding to United States immigration and
32 customs enforcement holds. 1. A law enforcement official shall have
33 discretion to cooperate with immigration authorities only if doing so
34 would not violate any federal, state, or local law, or local policy, and
35 where permitted by section three hundred nineteen-a of this article.
36 Additionally, the specific activities described in subparagraph (iii) of
37 paragraph (a) of subdivision one of such section and in paragraph (d) of
38 subdivision one of such section shall only occur under the following
39 circumstances:
40 (a) Such person has been convicted of a violent felony as defined in
41 subdivision one of section 70.02 of the penal law.
42 (b) Such person has been convicted of a felony punishable by imprison-
43 ment in the state prison.
44 (c) Such person has been convicted within the past five years of a
45 misdemeanor for a crime that is punishable as either a misdemeanor or a
46 felony, or has been convicted within the last fifteen years of a felony.
47 (d) Such person is a current registrant on the state sex offender
48 registry pursuant to article six-C of the correction law.
49 (e) Such person has been convicted of a federal crime that meets the
50 definition of an aggravated felony as set forth in subparagraphs (A) to
51 (P), inclusive, of paragraph forty-three of subsection (a) of section
52 one hundred one of the Federal Immigration and Nationality Act (8 U.S.C.
53 Sec. 1101), or is identified by the United States department of homeland
54 security's immigration and customs enforcement as the subject of an
55 outstanding federal felony arrest warrant.
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1 2. In cases in which a person is arrested and taken before a magis-
2 trate on a charge involving a violent felony, as defined in subdivision
3 one of section 70.02 of the penal law, or a felony that is punishable by
4 imprisonment in state prison, and the court makes a finding of reason-
5 able cause as to that charge pursuant to section 180.70 of the criminal
6 procedure law, a law enforcement official shall additionally have
7 discretion to cooperate with immigration officials pursuant to subpara-
8 graph (iii) of paragraph (a) of subdivision one of section three hundred
9 nineteen-a of this article.
10 § 319-c. Cooperation policies. 1. The attorney general of the state of
11 New York, by October first, two thousand twenty, in consultation with
12 appropriate stakeholders, shall publish model policies limiting assist-
13 ance with immigration enforcement to the fullest extent possible
14 consistent with federal and state law at public schools, public
15 libraries, health facilities and shelters operated by the state or a
16 political subdivision of the state, courthouses, department of labor
17 facilities, the department of workers compensation and the department of
18 social services, and ensuring that they remain safe and accessible to
19 all New York residents, regardless of immigration status. All public
20 schools, health facilities operated by the state or a political subdivi-
21 sion of the state, and courthouses shall implement such model policy, or
22 an equivalent policy.
23 2. For any databases operated by state and local law enforcement agen-
24 cies, including databases maintained for the agency by private vendors,
25 the attorney general of the state of New York shall, by October first,
26 two thousand twenty, in consultation with appropriate stakeholders,
27 publish guidance, audit criteria, and training recommendations aimed at
28 ensuring that those databases are governed in a manner that limits the
29 availability of information therein to the fullest extent practicable
30 and consistent with federal and state law, to anyone or any entity for
31 the purpose of immigration enforcement. All state and local law enforce-
32 ment agencies shall adopt necessary changes to database governance poli-
33 cies consistent with such guidance.
34 § 319-d. Severability. If any clause, sentence, paragraph, section or
35 part of this article shall be adjudged by any court of competent juris-
36 diction to be invalid, such judgment shall not affect, impair or invali-
37 date the remainder thereof, but shall be confined in its operation to
38 the clause, sentence, paragraph, section or part thereof directly
39 involved in the controversy in which such judgment shall have been
40 rendered.
41 § 2. The correction law is amended by adding a new section 626 to read
42 as follows:
43 § 626. Cooperation with United States immigration and customs enforce-
44 ment. 1. The department shall:
45 (a) In advance of any interview between the United States immigration
46 and customs enforcement (ICE) and a person in department custody regard-
47 ing civil immigration violations, provide such person with a written
48 consent form that explains the purpose of the interview, that the inter-
49 view is voluntary, and that he or she may decline to be interviewed or
50 may choose to be interviewed only with his or her attorney present.
51 (b) Upon receiving any ICE hold, notification, or transfer request, as
52 defined in section three hundred nineteen of the executive law, provide
53 a copy of the request to such person and inform him or her whether the
54 department intends to comply with the request.
55 2. The department shall not:
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1 (a) Restrict access to any in-prison educational or rehabilitative
2 programming, or credit-earning opportunity on the sole basis of citizen-
3 ship or immigration status, including, but not limited to, whether a
4 person is in removal proceedings, or immigration authorities have issued
5 a hold request, transfer request, notification request, or civil immi-
6 gration warrant against such person.
7 (b) Consider citizenship and immigration status as a factor in deter-
8 mining a person's custodial classification level, including, but not
9 limited to, whether such person is in removal proceedings, or whether
10 immigration authorities have issued a hold request, transfer request,
11 notification request, or civil immigration warrant against such person.
12 § 3. This act shall take effect on the ninetieth day after it shall
13 have become a law. Effective immediately, the addition, amendment
14 and/or repeal of any rule or regulation necessary for the implementation
15 of this act on its effective date are authorized and directed to be made
16 and completed on or before such effective date.
