a. Definitions. For the purposes of this section, the following terms shall have the following meanings:
1. "Civil immigration detainer" shall mean a detainer issued pursuant to 8 CFR § 287.7 or any similar federal request for detention of a person suspected of violating civil immigration law.
2. "Convicted of a violent or serious crime" shall mean a judgment pursuant to section 1.20(15) of the criminal procedure law entered on a violent or serious crime, or a conviction under federal law or the law of another state that would constitute a "predicate felony conviction" pursuant to section 70.06(1)(b)(i) of the penal law provided that such conviction was for the equivalent of a violent or serious crime. A person shall not be considered convicted of a violent or serious crime if that person:
i. was adjudicated as a youthful offender, pursuant to article seven hundred twenty of the criminal procedure law, or a comparable status pursuant to federal law or the law of another state, or a juvenile delinquent, as defined by subdivision one of section 301.2 of the family court act, or a comparable status pursuant to federal law or the law of another state; or
ii. has not had a judgment pursuant to section 1.20(15) of the criminal procedure law entered against him or her on a violent or serious crime for at least five years prior to the date of the instant arrest, provided that any period of time during which the person was incarcerated for a violent or serious crime, between the time of the commission of such violent or serious crime and the instant arrest, shall be excluded in calculating such five year period and such five year period shall be extended by a period or periods equal to the time served under such incarceration, and further provided that for purposes of paragraph two of subdivision b of this section a person shall be considered convicted of a violent or serious crime if a judgment pursuant to section 1.20(15) of the criminal procedure law has ever been entered against him or her for a violent or serious crime.
3. "Federal immigration authorities" shall mean any officer, employee or person otherwise paid by or acting as an agent of United States immigration and customs enforcement or any division thereof or any other officer, employee or person otherwise paid by or acting as an agent of the United States department of homeland security who is charged with enforcement of the civil provisions of the immigration and nationality act.
4. "Judicial warrant" shall mean a warrant based on probable cause and issued by a judge appointed pursuant to article III of the United States constitution or a federal magistrate judge appointed pursuant to 28 U.S.C. § 631, that authorizes federal immigration authorities to take into custody the person who is the subject of such warrant.
5. "Terrorist screening database" shall mean the United States terrorist watch list or any similar or successor list maintained by the United States.
6. "Violent or serious crime" shall mean:
i. a felony defined in any of the following sections of the penal law: 120.01, 120.02, 120.03, 120.04, 120.04-a(4), 120.05, 120.06, 120.07, 120.08, 120.09, 120.10, 120.11, 120.12, 120.13, 120.18, 120.25, 120.55, 120.60, 120.70, 121.12, 121.13, 125.10, 125.11, 125.12, 125.13, 125.14, 125.15, 125.20, 125.21, 125.22, 125.25, 125.26, 125.27, 125.40, 125.45, 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.53, 130.65, 130.65-a, 130.66, 130.67, 130.70, 130.75, 130.80, 130.85, 130.90, 130.95, 130.96, 135.10, 135.20, 135.25, 135.35, 135.50, 135.65(2)(b), 140.17, 140.25, 140.30, 145.12, 150.05, 150.10, 150.15, 150.20, 160.05, 160.10, 160.15, 195.07, 195.08, 195.17, 215.11, 215.12, 215.13, 215.15, 215.16, 215.17, 215.51, 215.52, 220.18, 220.21, 220.28, 220.41, 220.43, 220.44, 220.48, 220.77, 230.05, 230.06, 230.19, 230.25(2), 230.30, 230.32, 230.33, 230.34, 230.34-a, 235.22, 240.06, 240.55, 240.60, 240.61, 240.62, 240.63, 240.75, 241.05, 255.26, 255.27, 260.25, 260.32, 260.34, 263.05, 263.10, 263.11, 263.15, 263.16, 263.30, 265.01-a, 265.01-b, 265.02 (2) through (8), 265.03, 265.04, 265.08, 265.09, 265.10, 265.11, 265.12, 265.13, 265.14, 265.16, 265.17, 265.19, 265.35(2), 270.30, 270.35, 405.16(1), 405.18, 460.22, 470.21, 470.22, 470.23, 470.24, 490.10, 490.15, 490.20, 490.25, 490.30, 490.35, 490.37, 490.40, 490.45, 490.47, 490.50, or 490.55;
ii. a hate crime as defined in section 485.05 of the penal law, provided such hate crime constitutes a felony;
iii. a felony attempt, felony conspiracy, or felony criminal solicitation to commit any crime specified in subparagraph (i) of this paragraph, or a felony criminal facilitation of such specified crime;
iv. any felony set forth in section 600 of the vehicle and traffic law; or
v. any crime codified by the legislature subsequent to the enactment of this section that the department of correction, in consultation with the department, by rule determines to be a felony involving violence, force, firearms, terrorism, or endangerment or abuse of vulnerable persons, or any crime for which a change made by the legislature requires amendment of the crimes specified in this paragraph.
b. Prohibition on honoring a civil immigration detainer.
1. The department may only honor a civil immigration detainer by holding a person beyond the time when such person would otherwise be released from the department's custody, in addition to such reasonable time as is necessary to conduct the search specified in subparagraph (ii) of this paragraph, or by notifying federal immigration authorities of such person's release, if:
i. federal immigration authorities present the department with a judicial warrant for the detention of the person who is the subject of such civil immigration detainer at the time such civil immigration detainer is presented; and
ii. a search, conducted at or about the time when such person would otherwise be released from the department's custody, of state and federal databases, or any similar or successor databases, accessed through the New York state division of criminal justice services e-JusticeNY computer application, or any similar or successor computer application maintained by the city of New York or state of New York, indicates, or the department has been informed by a court or any other governmental entity, that such person: A. has been convicted of a violent or serious crime, or B. is identified as a possible match in the terrorist screening database.
2. Notwithstanding paragraph one of this subdivision, the department may honor a civil immigration detainer by holding an person for up to forty-eight hours, excluding Saturdays, Sundays and holidays, beyond the time when such person would otherwise be released from the department's custody, in addition to such reasonable time as is necessary to conduct the search specified in this paragraph, if a search, conducted at or about the time when such person would otherwise be released from the department's custody, of state and federal databases, or any similar or successor databases, accessed through the New York state division of criminal justice services e-JusticeNY computer application, or any similar or successor computer application maintained by the city of New York or state of New York, indicates, or the department has been informed by a court or any other governmental agency, that such person: A. has been convicted of a violent or serious crime and has illegally re-entered the country after a previous removal or return, or B. is identified as a possible match in the terrorist screening database; provided, however, that if federal immigration authorities fail to present the department with a judicial warrant for such person within the period described above, such person shall be released and the department shall not notify federal immigration authorities of such person's release.
3. Nothing in this section shall affect the obligation of the department to maintain the confidentiality of any information obtained pursuant to paragraphs one or two of this subdivision.
c. No conferral of authority. Nothing in this section shall be construed to confer any authority on any entity to hold persons on civil immigration detainers beyond the authority, if any, that existed prior to the enactment of this section.
d. No conflict with existing law. This local law supersedes all conflicting policies, rules, procedures and practices of the city of New York. Nothing in this local law shall be construed to prohibit any city agency from cooperating with federal immigration authorities when required under federal law. Nothing in this local law shall be interpreted or applied so as to create any power, duty or obligation in conflict with any federal or state law.
e. No private right of action. Nothing contained in this section or in the administration or application hereof shall be construed as creating any private right of action on the part of any persons or entity against the city of New York or the department, or any official or employee thereof.
f. Reporting. No later than September 1, 2018, and no later than September 1 of each year thereafter, the department shall post a report on the department website that includes the following information for the preceding twelve month period ending June 30:
1. the number of civil immigration detainers received from federal immigration authorities;
2. the number of persons held pursuant to civil immigration detainers beyond the time when such person would otherwise be released from the department's custody;
3. the number of persons transferred to the custody of federal immigration authorities pursuant to civil immigration detainers;
4. the number of persons for whom civil immigration detainers were not honored pursuant to subdivision b of this section; and
5. the number of requests from federal immigration authorities for such person's incarceration status, release dates, court appearance dates, or any other information related to such person in the department's custody, and the number of responses honoring such requests by the department, disaggregated by:
i. the number of responses to federal immigration authorities concerning a person with no convictions for a violent or serious crime, disaggregated by the number of such responses that included incarceration status, release dates, court appearance dates, or other types of information, and whether the department facilitated the transfer of such persons to the custody of federal immigration authorities;
ii. the number of responses to federal immigration authorities where the person had at least one conviction for a violent or serious crime, disaggregated by the number of such responses that included incarceration status, release dates, court appearance dates, or other types of information, and whether the department facilitated the transfer of such persons to the custody of federal immigration authorities; and
iii. the number of responses to federal immigration authorities concerning a person with no convictions for a violent or serious crime who was identified as a possible match in the terrorist screening database, disaggregated by the number of such responses that included incarceration status, release dates, court appearance dates, or other types of information, and whether the department facilitated the transfer of such persons to the custody of federal immigration authorities.
g. For the purpose of this section, any reference to a statute, rule, or regulation shall be deemed to include any successor provision.
(Am. L.L. 2017/228, 12/1/2017, eff. 1/30/2018; Am. 2018 N.Y. Laws Ch. 189, 8/15/2018, eff. 11/13/2018)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2017/228.