Failure to Release Some Criminal Defendants Solely for Immigration Reasons Violates U.S. Constitution

New York Supreme Court in Brooklyn considered the legality of practice by NYC Department of Corrections continued detention of defendants – based on a civil immigration detainer – notwithstanding the fact that defendant could be released for criminal charges.  People Ex Rel. Swenson v. Ponte, 2014 NY Slip Op 24304 (Oct. 15, 2014).  Interpreting law (8 U.S.C. § 1357(d)) and regulation (8 C.F.R. § 287.7) governing the use of immigration detainers, the Court concluded that the local law enforcement agency is not required to detain anyone.  Court cited NYC Administrative Code § 9-131 (“The department shall not honor a civil immigration detainer by: holding an individual beyond the time when such individual would otherwise be released from the department’s custody, except for such reasonable time as is necessary to conduct the search specified in paragraph two . . .”).  Acknowledging that NYC Administrative Code can give way (be preempted) by State and Federal laws, the Court went further to the Supreme Law of the Land.  Citing Fourth Amendment, Court began looking for probable cause.  Court found no probable cause to exist because (1) Department of Homeland Security (DHS) removal order; (2)  DHS’ reason to believe that a person is subject to removal; and (3) federal detainer (on the facts of the case) are civil, not criminal, in nature.