Bill Text: NY A06071 | 2019-2020 | General Assembly | Introduced


Bill Title: Relates to standards and policies for New York law enforcement agency cooperation with federal immigration authorities.

Spectrum: Partisan Bill (Democrat 18-0)

Status: (Introduced) 2019-02-26 - referred to governmental operations [A06071 Detail]

Download: New_York-2019-A06071-Introduced.html


                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

        A. 6071                             2
     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

        A. 6071                             3
     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

        A. 6071                             4
     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.

        A. 6071                             5
     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.

        A. 6071                             6
     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:

        A. 6071                             7
     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.
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