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New York New York City Administrative Code(new) - Chapter 1 - § 9-131 Persons Not to Be Detained

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New York City Administrative Code(NEW) 
 
    §  9-131 Persons not to be detained.  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 C.F.R. 287.7.
    2. "Convicted of a covered crime" shall mean a final judgment of guilt
  entered  on  a covered crime, including a conditional discharge pursuant
  to section 410.10  of  the  criminal  procedure  law,  or  a  comparable
  provision  of  federal  law  or  the law of another state. An individual
  shall not be considered convicted of a covered crime if that individual:
    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 never had a final judgment of guilt entered against him or her
  on a felony and has not had a final judgment of  guilt  entered  against
  him  or  her  on  a misdemeanor that is a covered crime for at least ten
  years prior to the date of the instant arrest.
    3. "Covered crime" shall mean a misdemeanor or felony  charge  brought
  in  any  of  the criminal courts of the state of New York, as defined in
  section 10.10 of the criminal procedure  law,  or  any  other  court  of
  competent  jurisdiction  in the United States, provided, however, that a
  charge brought pursuant to section 230.00  of  the  penal  law,  section
  240.37  of  the  penal  law,  except  when  such  charge  relates to the
  patronizing of a prostitute, or subdivision one or subparagraph  (i)  or
  (iv)  of paragraph (a) of subdivision two of section five hundred eleven
  of the vehicle and traffic law, or a comparable provision of federal law
  or the law of another state, shall not be deemed a covered crime.
    4. "Covered criminal case" shall mean a case in any  of  the  criminal
  courts  of  the  state  of  New York, as defined in section 10.10 of the
  criminal procedure law, or any other court of competent jurisdiction  in
  the  United  States, excluding the family court of the state of New York
  or a comparable court in another  jurisdiction  in  the  United  States,
  where  any felony charge, or a misdemeanor charge pursuant to any of the
  following provisions, or a comparable provision of federal  law  or  the
  law of another state, is pending.
    A. section 120.00 of the penal law, unless the defendant is ordered by
  the  court  to  be  released  for  failure  to  replace  the misdemeanor
  complaint with an information pursuant to section 170.70 of the criminal
  procedure law;
    B. article one hundred thirty of the penal law;
    C. section 265.01 of the penal law, provided that such charge  relates
  to possession of a firearm, rifle, shotgun, bullet or ammunition;
    D. section 215.50 of the penal law, unless the defendant is ordered by
  the  court  to  be  released  for  failure  to  replace  the misdemeanor
  complaint with an information pursuant to section 170.70 of the criminal
  procedure law; or
    E. article thirty-one of the vehicle and traffic law.
    5. "Department" shall mean the New York city department of  correction
  and  shall include all officers, employees and persons otherwise paid by
  or acting as agents of the department.
    6. "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.
    7.  i.  "Pending  covered criminal case" shall mean a covered criminal
  case where judgment has not been entered.
    ii. Notwithstanding anything to the contrary in subparagraph i of this
  paragraph, an individual who is a defendant in more than one case  where
  judgment  has  not  been  entered  and where a covered crime is charged,
  shall be deemed to be a defendant in a pending covered criminal case.
    iii. Any individual whose case is disposed of with an  adjournment  in
  contemplation  of  dismissal pursuant to section 170.55 or 170.56 of the
  criminal procedure law, or a comparable provision of federal law or  the
  law of another state, shall not be deemed to be a defendant in a pending
  covered criminal case, or a case in which a covered crime is charged for
  purposes of subparagraph (ii) of this paragraph.
    iv.  Any  individual  who  has been sentenced to conditional discharge
  pursuant to section 410.10 of the criminal procedure law or a comparable
  provision of federal law or the law  of  another  state,  shall  not  be
  deemed  to  be a defendant in a pending covered criminal case, or a case
  in which a covered crime is charged for purposes of subparagraph  ii  of
  this paragraph.
    v.  Any individual who, if convicted, must be found by the court to be
  a youthful offender, pursuant to paragraph (b)  of  subdivision  one  of
  section  720.20  of  the  criminal procedure law, or a comparable status
  pursuant to federal law or the law of another state, shall not be deemed
  to be a defendant in a pending covered criminal case.
    8.  "Terrorist  screening  database"  shall  mean  the  United  States
  terrorist  watch list or any similar or successor list maintained by the
  United States.
    b. Prohibition on  honoring  a  civil  immigration  detainer.  1.  The
  department shall not honor a civil immigration detainer by:
    i.  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 of this subdivision, or
    ii. notifying federal immigration  authorities  of  such  individual's
  release.
    2. Paragraph one of this subdivision shall not apply when:
    i. a search, conducted at or about the time when such individual 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,  that  such
  individual:
    A. has been convicted of a covered crime;
    B. is a defendant in a pending covered criminal case;
    C.  has  an  outstanding  criminal warrant in the state of New York or
  another jurisdiction in the United States;
    D. is identified as a  known  gang  member  in  the  database  of  the
  national  crime  information center or any similar or successor database
  maintained by the United States; or
    E. is identified as  a  possible  match  in  the  terrorist  screening
  database.
    ii.  the search conducted pursuant to subparagraph i of this paragraph
  indicates, or the department has been informed  by  federal  immigration
  authorities, that such individual:

    A.  has  an  outstanding warrant of removal issue pursuant to 8 C.F.R.
  241.2; or
    B.  is  or  has  previously  been  subject to a final order of removal
  pursuant to 8 C.F.R. 1241.1.
    3. Nothing  in  this  section  shall  affect  the  obligation  of  the
  department  to  maintain the confidentiality of any information obtained
  pursuant to paragraph 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 individuals 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.
    f.  Reporting.  No  later  than  September  30, 2012 and no later than
  September thirtieth 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:
    1.  the  total  number  of  detainers  lodged  with  the   department,
  disaggregated  to  the  extent  possible  by the reason given by federal
  immigration  authorities  for  issuing  detainers,  including,  but  not
  limited to, that federal immigration authorities:
    i.  had  reason  to  believe  that the individuals in the department's
  custody are subject to removal from the United States;
    ii. initiated removal proceedings and served a  notice  to  appear  or
  other charging document on individuals in the department's custody;
    iii. served a warrant of arrest for removal proceedings on individuals
  in the department's custody; or
    iv.  obtained  orders of deportation or removal from the United States
  for individuals in the department's custody;
    2. the number  of  individuals  held  pursuant  to  civil  immigration
  detainers  beyond  the  time  when  such  individual  would otherwise be
  released from the department's  custody,  disaggregated  to  the  extent
  possible  by  the  reason  given  by federal immigration authorities for
  issuing the detainers, including,  but  not  limited  to,  that  federal
  immigration authorities:
    i.  had  reason  to  believe  that the individuals in the department's
  custody are subject to removal from the United States;
    ii. initiated removal proceedings and served a  notice  to  appear  or
  other charging document on individuals in the department's custody;
    iii. served a warrant of arrest for removal proceedings on individuals
  in the department's custody; or
    iv.  obtained  orders of deportation or removal from the United States
  for individuals in the department's custody;
    3. the number of individuals transferred to  the  custody  of  federal
  immigration authorities pursuant to civil immigration detainers;
    4.  the  number  of  individuals transferred to the custody of federal
  immigration authorities pursuant to civil immigration detainers who  had
  at least one felony conviction;

    5.  the  number  of  individuals transferred to the custody of federal
  immigration authorities pursuant to civil immigration detainers who  had
  at least one misdemeanor conviction but no felony convictions;
    6.  the  number  of  individuals transferred to the custody of federal
  immigration authorities pursuant to civil immigration detainers who  had
  no misdemeanor or felony convictions;
    7.  the  number  of  individuals transferred to the custody of federal
  immigration  authorities  pursuant  to   civil   immigration   detainers
  subsequent  to  the  dismissal  of  the  criminal  case that brought the
  individual into the department's custody;
    8. the number of individuals transferred to  the  custody  of  federal
  immigration  authorities pursuant to civil immigration detainers who had
  no misdemeanor or felony convictions and had an outstanding  warrant  of
  removal  issued  pursuant  to  8  C.F.R.  241.2;  or had previously been
  subject to a final order of removal pursuant to 8 C.F.R. 1241.1.
    9. the number of individuals transferred to  the  custody  of  federal
  immigration  authorities pursuant to civil immigration detainers who had
  no misdemeanor or felony convictions and were identified as  known  gang
  members  in  the  database of the national crime information center or a
  successor database maintained by the United States;
    10. the number of individuals transferred to the  custody  of  federal
  immigration  authorities pursuant to civil immigration detainers who had
  no misdemeanor or felony convictions and  were  identified  as  possible
  matches in the terrorist screening database;
    11.  the  number  of individuals transferred to the custody of federal
  immigration authorities pursuant to civil immigration detainers who  had
  no  misdemeanor  or  felony  convictions  and  were  identified  as both
  possible matches in the terrorist  screening  database  and  known  gang
  members  in  the  database of the national crime information center or a
  successor database maintained by the United States;
    12. the number of individuals transferred to the  custody  of  federal
  immigration  authorities pursuant to civil immigration detainers who had
  no misdemeanor or felony convictions and were defendants  in  a  pending
  criminal case;
    13.  the  number  of individuals transferred to the custody of federal
  immigration authorities pursuant to civil immigration detainers who  had
  no  misdemeanor  or felony convictions and were charged with a felony or
  felonies in a pending covered criminal case;
    14. the number of individuals transferred to the  custody  of  federal
  immigration  authorities pursuant to civil immigration detainers who had
  no misdemeanor or felony convictions and  were  charged  solely  with  a
  misdemeanor or misdemeanors in a pending covered criminal case;
    15.  the  amount  of state criminal alien assistance funding requested
  and received from the federal government;
    16. the number of individuals for  whom  civil  immigration  detainers
  were not honored pursuant to subdivision b of this section; and
    17.  the  number  of  individuals  held  pursuant to civil immigration
  detainers beyond the time when such  individuals  would  otherwise  have
  been  released from the department's custody who were not transferred to
  the custody of federal immigration authorities  either  because  of  the
  expiration  of  the  forty-eight-hour  hold  period provided in 8 C.F.R.
  287.7 or because federal immigration authorities disavowed an  intention
  to assume custody.
    g.  For the purpose of this section, any reference to a statute, rule,
  or regulation shall be deemed to include any successor provision.
Section:  Previous  9-119  9-120  9-121  9-122  9-123  9-124  9-125  9-126  9-127  9-128  9-129  9-130  9-131  9-132  9-133  Next

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Last modified: February 16, 2014