Four months ago, I posed the question, “How far will New York City Mayor Bill de Blasio go to protect undocumented aliens?” Now I am wondering how far New York Governor Andrew M. Cuomo will go. And both should be wondering how far the Trump administration will go in trying to stop them.
De Blasio has kept his promise to defend undocumented immigrants in New York City against aggressive immigration enforcement measures by employing sanctuary policies that make immigration enforcement more difficult for ICE.
For instance, his sanctuary policies prohibit New York City Police Departments from complying with ICE detainer requests unless they pertain to aliens who have convictions for specified New York criminal offenses.
ICE issues detainer requests when it has probable cause to believe that an alien in police custody is deportable. The request is for the police to notify ICE when the alien is about to be released and then to hold him for up to 48 hours to allow ICE to take him into custody for removal proceedings.
ICE issued 7,526 detainers in its New York field office last year. The aliens who were the subjects of these detainers accounted for 17,873 criminal convictions, including more than 200 homicides, 500 robberies, 1,000 sexual offenses, 1,000 weapons offenses and 3,500 assaults.
Only ten of these detainer requests were honored.
One of the denied requests pertained to Reeaz Khan, a 21-year-old undocumented alien from Guyana who — after being released from police custody — has been accused of attacking Maria Fuertes, a 92-year-old woman, who was found lying on a sidewalk in the middle of the night in 32-degree weather with her clothes pulled above her waist. She was taken to a hospital, where she died from injuries that included a broken spine and rib fractures. According to law enforcement sources, she had been sexually assaulted and strangled.
Prosecutors say Khan was caught on a surveillance video approaching Fuertes from behind while she was checking a pile of garbage bags for returnable empties. According to the New York Daily News, “the video shows them then falling to the ground together, disappearing from view behind a car for four sickening minutes.” Then Khan is seen running away. When a portion of the surveillance video was released, one of the tips identifying the attacker as Khan came from his brother.
Anyone who thinks this might just be a de Blasio thing should think again.
The Green Light Law may violate 8 U.S.C. § 1324(a)(1)(A)(iii), which provides criminal penalties for concealing, harboring, or shielding aliens in the United States illegally — and those penalties range from a fine and incarceration for not more than five years to being punished by death or imprisonment for life. The law does not specify what actions constitute “harboring,” but the most frequent characteristic the courts have used to describe it is that it makes it easier for an undocumented alien to remain in the United States, which arguably is the main objective of sanctuary policies.
Will the Trump administration resort to criminal prosecutions against state and local government officials for harboring violations to stop their sanctuary policies? Maybe.
The Green Light Law does not comply with the security requirements of the REAL ID Act (119 STAT. 302) for issuing driver’s licenses. Among other things, it permits applicants to use foreign documents that cannot be validated.
The Green Light Law also prohibits sharing information from DMV records with agencies that enforce federal immigration laws. This is a problem because DHS needs access to those records for background investigations. It also can be a problem for immigration officers in the field who need the police to run a license check on a vehicle that a suspect is in.
In response to the denial of data from DMV records, DHS Acting Secretary Chad F. Wolf declared that New York residents would no longer be eligible to participate in the Trusted Traveler Programs (TTP), which allow members to use expedited lanes at U.S. airports and when crossing international borders instead of having to wait in the regular inspection lines.
It isn’t possible to determine whether TTP applicants can be trusted without a thorough background investigation.
In a letter to Cuomo and other state officials, the New York State Sheriff’s Association asserts that the restriction on sharing DMV information is a serious law enforcement issue. Withholding that information can jeopardize the safety of the agencies responsible for enforcing our Nation’s immigration laws.
Cuomo goes further
All of that is bad enough, but in April, Cuomo signed the 2020 New York budget bill, which includes an amendment to the Green Light Law that makes persons who disclose information from DMV records to federal immigration officers subject to being charged with a class E felony.
This means that a New York policeman can be sentenced to prison for up to four years for sharing DMV information with an immigration officer.
The Trump administration fights back
The Trump administration has already filed lawsuits against California, New Jersey, and King Country Washington claiming that their sanctuary polices violate Article VI of the U.S. Constitution (the Supremacy Clause), which prohibits states from interfering with the federal government’s exercise of its constitutional powers.
As was the case with the travel ban, Trump will have to take these suits to the Supreme Court to overcome lower court resistance to his immigration enforcement measures.
Attorney General William Bar is also looking into the possibility of criminal prosecutions against politicians for violations of the harboring statute.
It’s hard to imagine New York and its Democratic leaders aren’t next in the sights.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.