A New York State appellate court in Brooklyn recently issued a decision in People ex rel. Wells on Behalf of Francis v. Demarco. The case was brought by the New York Civil Liberties Union (NYCLU), on behalf of Susai Francis, an Indian visa over-stayer arrested by the Suffolk County Police Department (SCPD) on criminal charges.

Following a guilty plea, Francis was sentenced to time served and ordered released. However, the SCPD held him on a request from ICE. He was arrested by immigration officers and placed in removal proceedings. Francis then sued, alleging violations of his Fourth Amendment right to be free from unreasonable searches and seizures.

The court held that state law enforcement officers in New York cannot detain aliens for transfer to U.S. Immigration and Customs Enforcement (ICE) on the basis of an ICE detainer — a formal request to hold an alien for transfer into federal custody. However, aliens may be held by local officers if ICE presents a warrant signed by a judge.

According to the NYCLU, “No New York state law enforcement official has any authority to arrest and detain an immigrant to deliver to ICE merely upon the request of ICE.” That has become a standard claim, used by open borders advocates who want the public to believe that state agencies complying with ICE detainers violate aliens’ constitutional rights.

However, the Immigration and Nationality Act (INA) specifically authorizes the issuance of administrative warrants — not judicial warrants — for the arrest of aliens suspected of being in the United States in violation of immigration law. And those administrative warrants are signed by supervisory deportation officers at ICE, not by judges.

But do the administrative warrant provisions of the INA violate the Fourth Amendment as the NYCLU claims? A 100-year-old Supreme Court ruling makes it clear that they do not. In Fong Yue Ting v. United States, the high court explicitly noted that many constitutional protections, which might otherwise apply to deprivations of liberty, do not apply to immigration enforcement. The court stated:

The order of deportation is not a punishment for crime … It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation … has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process of law; and the provisions of the constitution … prohibiting unreasonable searches and seizures … have no application.

Fong Yue Ting has not been overruled. When Congress passed the administrative warrant provisions of the INA, it was clearly proceeding on the Supreme Court’s unequivocal finding in that case. And the legal attacks against state agencies that cooperate with immigration officials are nothing but a deliberate attempt to impose a back door judicial warrant requirement on ICE, despite the fact that Congress has never seen fit to do so.

It remains to be seen whether local law enforcement agencies will attempt to mount federal court challenges to state judicial decisions holding that they can’t cooperate with ICE. But, responsible state law enforcement agencies should push back against the misguided campaign by the open borders lobby to frustrate immigration enforcement throughout the U.S. by judicial fiat. All indications are that they would be successful.

The Eighth Circuit Court of Appeals has repeatedly found the claim that a state officer cannot detain an alien on behalf of federal officers to be “meritless.” The Fifth Circuit Court of Appeals has held it is undisputed that federal immigration officers may seize aliens pursuant to an administrative warrant — and state officers may detain an alien for transfer to federal custody, at the request of ICE, through what is known as the “collective knowledge doctrine.” Neither court found that a judicial warrant was necessary for the movement of an alien from state criminal custody to federal civil custody.

The NYCLU’s ideological dislike for immigration enforcement does not change the state of the law. Local law enforcement agencies should not become unwitting pawns in deliberate efforts to undermine immigration enforcement.

Matt O’Brien is director of research at the Federation for American Immigration Reform (FAIR), a nonprofit group advocating for legal immigration.

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