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By Gwynne Hogan, and Rachel Holliday Smith

The January brawl between NYPD officers and migrants in Times Square that went viral has sparked a national firestorm over long-standing sanctuary city policies that restrict cooperation between federal authorities and local law enforcement.

Republicans seized on the attack to argue that sanctuary laws should be changed. Mayor Eric Adams asked the City Council to reexamine them, but the Council defended the protections, saying they have no bearing on the incident in hand.

But what does it even mean to be a “sanctuary city”?

Here’s a guide to the policies that together define the “sanctuary city” idea in New York City and how they impact immigrants, whether they’re wrapped up in criminal proceedings or not.

What does it mean for New York City to be a sanctuary city?

Though New York City has some laws on the books that aim to protect immigrants from certain types of law enforcement (more on that below), the concept of being a “sanctuary city” isn’t really a hard-and-fast legal edict. It’s more of a collection of policies, combined with political will, that guide how local and federal authorities interact.

Generally, when politicians, advocates and critics use the term “sanctuary city,” they are referring to the policies put forward by local governments that limit how (or if) they share information with federal immigration authorities about non-citizens. Sanctuary city policies aim to shield those people from what their allies call unfair or unwarranted law enforcement actions like arrests, detention or deportation.

Defenders of the city’s sanctuary protections say it’s a vital public safety measure that allows undocumented but law-abiding immigrants to report crimes, seek medical help, and go to court — without fear they’ll be turned over to immigration authorities. Some evidence suggests sanctuary localities are safer than non-sanctuary ones and lower poverty and crime rates on average.

Nationally, “sanctuary city” policies have been a source of debate and controversy for decades, according to the nonpartisan Congressional Research Service (CRS), and the issue became even more heated after 2017, as the Trump administration increased immigration enforcement.

As of 2020, at least 172 localities in the U.S. have some kind of sanctuary policy, the CRS said, citing the Center for Immigration Studies.

What are the sanctuary laws in New York City?

The creation of local sanctuary policies in New York City go back at least to 1989 when then-Mayor Ed Koch signed an executive order creating the city’s first sanctuary policy, which bars city officials from sharing information about immigrants unless it’s regarding a criminal matter, or there’s express written permission by an individual immigrant to do so. The order was reissued by Mayor David Dinkins, and again by Mayor Rudy Guiliani.

The first city law limiting the local government’s cooperation with federal Immigration and Customs Enforcement (ICE) — as opposed to an executive order —  came in 2011. In 2014, under then-Mayor Bill de Blasio, city lawmakers expanded the protections, limiting when and how the city’s police and correction departments could cooperate with ICE.

The 2014 bill did two main things: It removed ICE’s office that had operated on Rikers Island and all city jail facilities, and it barred the NYPD or the Department of Correction from honoring “detainer requests” from ICE — i.e. an official call to detain a certain person for possible future deportation — with some notable exceptions, including for people with recent convictions for some violent or serious crimes, or people on the federal terrorist watch list, and when ICE officials had obtained a judicial warrant.

In 2018, de Blasio and the police department’s leadership went further by issuing guidance citywide mandating that any requests for help from federal immigration officials would be “reviewed in advance by senior city agency officials” to determine that they were not made to assist with deportation.

Does that mean ICE can’t make arrests in New York City?

No. ICE can arrest anyone who is not a U.S. citizen, explained criminal defense attorney Robert Osuna, who has extensive experience with clients in immigration proceedings.

“ICE can arrest anybody they believe is not a United States citizen. It is an extraordinary, extraordinary authority they have,” he said.

Last year, for example, ICE arrested 9,229 people in New York City mostly with no criminal violations beyond their immigration status, according to federal data. Of those arrests, 729 of them were of someone who had a pending criminal charge or who had been convicted. In addition, ICE deported 439 people from New York City last fiscal year.

While ICE can enact arrests on its own accord within the five boroughs, it has to do so largely independently from the NYPD and the Corrections Department. Before the 2014 sanctuary protections, ICE could request an immigrant be held by the NYPD and the DOC and those agencies could comply. But since then, the person has to have been convicted of a “violent or serious crime,” and ICE needs a judicial warrant, among other carve outs.

In practice, city officials now rarely detain people at the behest of ICE, though it does occasionally occur. In one notable case a man arrested for jaywalking in 2019 was mistakenly handed over to ICE and nearly deported for it.

Last fiscal year the Department of Corrections received 201 ICE detainer requests and honored 10 of them, according to an annual report. In the previous fiscal year, the NYPD got 109 ICE detainer requests and didn’t honor a single one. 

ICE officials in New York have said getting a judicial warrant is difficult in the “overburdened federal courts,” and that they rely on media reports in order to nab the most serious offenders. Kenneth Genalo, the director of US Immigration and Customs Enforcement lamented, at a Feb. 5 press conference, that the sanctuary city laws mean instead of taking custody of someone already being held by the NYPD or the DOC, “we now have to go out into the community and the streets where unfortunately the criminals have the upper hand.”

Do sanctuary protections mean the NYPD don’t arrest or charge certain immigrants charged with crimes?

No. In New York City, they get processed the way any other person would regardless of their immigration status.

“Sanctuary policies have no bearing at all on how crime is prosecuted,” City Council Speaker Adrienne Adams said at a Thursday press conference. “They don’t conceal or shelter people from detection, nor do they shield people from deportation or prosecution for criminal activities.”

For example, the NYPD arrested the 15-year-old boy who allegedly shot a tourist and fired on a police officer last week in Times Square following an apparent shoplifting attempt.

In some cases, the person’s immigration status could impact the charges certain district attorney’s levy against them. In 2017, for example, Brooklyn District Attorney Eric Gonzalez said his office would weigh immigration consequences when bringing charges depending on the circumstances, as certain convictions virtually assure deportation.

Regardless of how a local criminal case plays out, if the person charged is out in the community on bail or bond while the proceeding is ongoing, ICE could move to detain the person at any time.

What do critics of the sanctuary policies want to change?

In the fallout of the NYPD Times Square altercation, New York Congresswoman Nicole Malliotakis and other Republicans are calling for the city to walk back the 2014 laws that keep the NYPD and the DOC from honoring most of ICE’s detainer requests.

Governor Kathy Hochul has also said “get them all and send them back,” implying the sanctuary policies should be circumvented all together. For his part, Mayor Eric Adams has expressed concerns about the law, without explicitly saying what if anything about them should change, deferring to the Council’s purview to change laws.

“Here’s the only area of the law that I think should be examined,” he said at a Feb. 5 press briefing. “You repeatedly commit felonies, dangerous crimes, if you’re found guilty, you should not be in our city.”

But that appears to be exactly how the law functions currently, per attorney Osuna. Any of the men charged with assaulting police officers in Times Square, if convicted, would likely be fasttracked for deportation.

“That is a joke,” he said. “Documented or undocumented migrants, you commit a felony and you go up state. If you go upstate, you’re definitely toast, 100% toast.”

For now at least, the council seems unlikely to consider walking the protections back. Speaker Adams offered a strident defense of the city’s sanctuary policies at a Feb. 8 briefing.

“These policies foster trust and cooperation between immigrant communities and local authorities which is critical to public safety,” she said. “Those opportunistically exploiting an incident that we should all be united in denouncing, to attack public safety policies, are advocating for policies that would make our city less safe.”

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