How far will New York City Mayor Bill de Blasio go to protect undocumented aliens?

New York City Mayor Bill de Blasio has been promising to defend undocumented immigrants in New York against aggressive immigration measures since the early days of the Trump administration.

According to de Blasio, the objective of his “sanctuary city” policies is to ensure that witnesses to and victims of crimes can report those to the police without fear of immigration repercussions.

De Blasio, however, has gone much further, and the consequences have been disastrous. In addition to impeding the ability of ICE to locate and apprehend criminal aliens, he has released dangerous criminal aliens into the community who could have been detained by ICE pending the completion of removal proceedings.

Detainer requests

ICE uses detainers to ask local law enforcement agencies that are detaining an apparently removable alien to (1) notify ICE when the alien is scheduled to be released, and (2) to maintain custody of the alien for up to 48 hours beyond the time he otherwise would have been released, to give ICE a chance to pick him up.

The New York Police Department (NYPD) ignored every one of the 2,916 detainer requests it received from ICE in the 12 months ending June 30, including one for a 21-year-old Guyanese immigrant named “Reeaz Khan.” After being released from custody, Khan allegedly sexually assaulted Maria Fuertes, 92, choked her, and then left her for dead outside her home in Queens a few weeks ago. She lay on the ground in 32-degree weather, half-dressed, for two hours before she was found, conscious but incoherent. She died shortly afterward at a nearby hospital. A post-mortem examination revealed horrific injuries, including a broken spine, fractured ribs, bruising on her chest and neck, internal hemorrhaging and injuries to her vagina.

Acting ICE Director Matthew T. Albence blamed de Blasio for Maria’s death, claiming that his sanctuary policies prevented Khan from being transferred to ICE for removal proceedings.

Albence has released a list of migrants who were subjects of New York detainer requests last year. They accounted for 17,873 criminal convictions and 6,500 criminal charges. The charges and convictions included more than 200 homicides, 500 robberies, 1,000 sexual offenses, 1,000 weapons offenses and 3,500 assaults.

Information sharing

ICE recently served four subpoenas on New York City jail officials, requesting information on illegal immigrants who were or had been incarcerated at those facilities, and the requests were denied. ICE recently served similar subpoenas in Denver, too.

The subjects of the New York subpoenas are:

• Khan, the man indicted on murder charges for allegedly killing the 92-year-old woman.
• A 26-year-old citizen of El Salvador who was arrested in September for assault and is wanted in El Salvador for homicide. NYPD released him in December, and ICE is trying to locate him.
• A 38-year-old Mexican citizen the NYPD arrested in January 2019 for attempted rape, unlawful imprisonment and attempted assault. He was released after posting bond.
• A 38-year-old Mexican citizen the NYPD arrested in October on drug charges. He had been deported previously, and there is a federal warrant for his arrest on an illegal re-entry charge.

New York’s sanctuary policy prevents the police from cooperating with ICE unless someone is convicted of a crime that is included on a specified list.

Arrests — no matter the charge — don’t meet that threshold.

Even when it is met, ICE must have a judicial warrant.

Municipal identification card initiative

In his State of the City address in January 2014, de Blasio announced a municipal identification card initiative that he said would be available to all city residents, age 10 and up, including undocumented immigrants.

The card enables New York residents to access city services and grants admission to city buildings. It can be presented as proof of identification for interacting with the police, and it is an accepted form of identification for opening a bank account at some financial institutions. It provides a full package of benefits, such as discounts for movie tickets, sports events, prescription drugs, fitness and health centers, supermarkets and city attractions.

This 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 — a very serious offense. If it results in the death of any person, the offender may be punished with death or imprisoned for life.

That provision does not specify what actions constitute “harboring,” however. The most frequent characteristic the courts have used to describe “harboring” is that it makes it easier for an undocumented alien to remain in the United States — which, arguably, is what de Basio is doing with his municipal identification card initiative.

Can mayors be prosecuted for violating federal immigration laws?  

According to James H. Walsh, who was an associate general counsel for the Immigration and Naturalization Service, mayors of sanctuary cities like New York are not exempt from prosecution if they are harboring or protecting aliens who are in the United States illegally.

I don’t expect Mayor de Basio to be prosecuted — but there may not be any other way to stop him from impeding ICE’s enforcement efforts in New York.

It can’t save Maria Fuertes, unfortunately — but it certainly could save others.

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.