Recently the Second Department of New York State Appellate Division has stated affirmatively that immigration holds and immigration detainers are of no value in New York State as New York State, under its Criminal Procedure Law, only recognizes warrants duly issued and issued by a neutral and detached magistrate as required in the U.S. Constitution. Simply put, a request by an ICE officer to a court or jail to hold an individual that they are interested in can no longer justify not releasing that individual. This case is People Ex rel. Wells v. Demarco, 88 NYS3d 518, decided November 14, 2018. This is a substantial decision and effects both legal and undocumented immigrants as they can no longer be held unless a judge finds probable cause that would necessitate holding any person who has U.S. Constitutional rights. Since this case was just recently decided many defense attorneys and others are not familiar with it. If you or a loved one are not a naturalized or born U.S. citizen it is imperative that you find a lawyer who is familiar with both the criminal laws and immigration statutes governing the handling of people who are not U.S. citizens. This office recently had a client who was arrested on a criminal charge and the district attorney and the police sought not to release him claiming that there was an ICE hold. However, as pointed out doing so could result in all persons involved being sued in Federal Court under 42 U.S.C. 1983 civil rights violations for damages associated therewith. The damage of holding a citizen or any person who is not authorized begins at $50,000 per day as decided by the Appellate Court Second Circuit of New York State. Therefore, you MUST find competent counsel to represent you when dealing with these matters.
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