Sanctuary City Refuses to Honor Federal Arrest Warrant for Violent Alien

DOJ claims that on January 28, the Tompkins County (N.Y.) Sheriff’s Office released a “violent illegal alien” from Mexico before ICE could pick him up, even though they knew agents wanted to take custody. The sheriff’s office is in “Ithaca, NY, a self-described sanctuary city”, and sanctuaries usually won’t assist ICE civil enforcement, but the twist in this story is that the alien is wanted on federal criminal charges and ICE provided the sheriff’s office with a judicial warrant signed by a federal magistrate. Keep that in mind the next time you hear local officials complain they would assist immigration enforcement, but they need a judicial warrant to do so.

Ithaca’s Sanctuary City Policy. Most sanctuary jurisdictions swear they aren’t actually “sanctuaries” at all — they’re simply concerned about the welfare and well-being of all of their residents, including those here illegally, and consequently expect ICE to jump through hoops that they don’t erect for other law enforcement agencies.

Not Ithaca — the local government puts it all at there to see, even captioning part II, section 215 (“Human Rights Protection”), article VI of the local code “Sanctuary City”.

Section 237-15 of that ordinance explains:

The purpose and intent of this article is to recognize the importance of fostering a city that is welcoming and inclusive for all individuals, regardless of nationality or citizenship status, and to ensure, to the greatest extent permitted by law, that immigration enforcement is a function of the federal government and not the City of Ithaca.

One can take issue with many of the propositions in that statement, but it’s difficult to argue with the claim that “immigration enforcement is a function of the federal government”. Immigration is a core federal function and the United States has only one immigration policy, expressed by Congress in the Immigration and Nationality Act (INA).

The Ithaca code, however, does state that there are instances in which the Ithaca Police Department (IPD) will assist in immigration enforcement. Specifically, section 215-40 (A) (“Civil immigration detainer requests”) of the Ithaca ordinance provides:

IPD may respond affirmatively to a civil immigration detainer from ICE or CBP to detain or transfer an individual for immigration enforcement or investigation purposes for up to 48 hours only if the request is accompanied by a judicial warrant: (1) Except that IPD may, upon the written legal opinion of the Office of the City Attorney, detain a person for up to 48 hours on a civil immigration detainer in the absence of a judicial warrant if: (a) There is probable cause to believe that the individual has illegally re-entered the country after a previous removal or return as defined by 8 U.S.C. § 1326 and (2) the individual has been convicted at any time of (i) a “violent or serious crime” as defined in Subsection 14-154(a)(6) of the Administrative Code of the City of New York … or (ii) a federal crime or crime under the law of another state that would constitute a predicate felony conviction, as defined under the New York Penal Law, for any of the preceding felonies; or (b) There is probable cause to believe that the individual has or is engaged in terrorist activity. [Emphasis added.]

Tompkins County adopted its own sanctuary policies in February 2017, shortly after Ithaca passed its ordinance, but it did not use the term “sanctuary county”.

Local reporting from the time, citing “Legislator Anna Kelles”, who spent three months laboring over the resolution, said the omission was deliberate, because the term “has created fear and is polarizing”.

Kelles explained:

The intention is can we get away from trigger words that people hear and don’t necessarily have the full depth of understanding of what’s behind it. Can we get away from that experience and encourage people to really understand and read? But we’ve created something that codifies and establishes best practices that are in place so that we can start to educate and build relationships between those in the community that are trying to ensure public safety and the residents within the community. That’s its purpose.

In any event, note the reference in the Ithaca ordinance to the Administrative Code of the City of New York — an entirely different polity than either Ithaca or Tompkins County, but a pioneer in the sanctuary jurisdiction movement. Gotham called the tune, and Ithaca just followed it.

In fact, as the Ithaca Voice reports: “Officials in Tompkins County and the City of Ithaca passed sanctuary jurisdiction legislation in 2017 in reaction to Trump’s increased threats of harsher immigration enforcement during his first term.”

Jesus Romero-Hernandez. The alien in question is Jesus Romero-Hernandez, a 27-year-old Mexican national, and DOJ doesn’t provide much background on his immigration history aside from the fact that he is here illegally and that this isn’t his first trip to the United States.

On January 8, 2024, Romero-Hernandez was charged in a federal criminal complaint with “illegally reentering the United States after a prior removal”.

While not expressly stated in the DOJ press release on the incident, that description indicates that Romero-Hernandez is charged with violating section 276(a) of the INA, the crime of “reentry of removed aliens” — and the “8 U.S.C. § 1326” referenced in the Ithaca ordinance.

Under section 276(b) of the INA, a conviction for that offense is a felony, carrying a sentence of up to two years and a fine, unless the prior removal order was subsequent to a conviction for a certain number of misdemeanors or any felony other than an aggravated felony, in which case the maximum sentence is 10 years.

If the prior conviction was for an aggravated felony as defined in section 101(a)(43) of the INA, the maximum sentence is 20 years incarceration.

Romero-Hernandez was not taken into custody when that complaint was issued, however, because he was in the custody of the Tompkins County Sheriff’s Office, facing state charges for “assault”.

There are 13 different varieties of crimes defined as “assault” in the New York State Penal Code, ranging from “Assault in the third degree”, a class A misdemeanor, all the way up to “Aggravated assault on a judge” and “Assault in the first degree”, both class B felonies.

In fact, according to the New York Post, Romero-Hernandez pled guilty on January 28 in state court to third-degree assault, the only assault offense that is not defined as a “violent or serious crime” in Subsection 14-154(a)(6) of the Administrative Code of the City of New York.

He likely pled down to that charge, because by the time he was released on Tuesday, Romero-Hernandez had been in Tompkins County custody for 488 days — far more than the 364-day maximum sentence for a class A misdemeanor, like third-degree assault, under New York law.

“Federal Agents Risked Their Safety”. In its press release, DOJ notes that “federal agents risked their safety and pursued” Romero-Hernandez “in unsafe conditions” because Tompkins County refused to honor the federal magistrate’s warrant and released the alien before ICE could pick him up.

Tompkins County responded to that allegation in a statement, contending:

There was no interference with federal immigration enforcement efforts. … [ICE] knew exactly when the individual in question was going to be released and had every opportunity to come to the Tompkins County jail to obtain the individual in question without any need for a pursuit or other incident.

Despite that, a Tompkins County spokesperson told the Ithaca Voice that the county was “aware of the ICE activity and is fully investigating the circumstances”.

“Administrative” vs. “Judicial” Warrants. Immigrants’ advocates and proponents of sanctuary policies generally distinguish “administrative warrants” — the sort issued by ICE pursuant to its authority under sections 236(a) and 287(a) of the INA — from “judicial warrants”, like the one issued by the magistrate judge in Romero-Hernandez’s case.

Consider the following guidance issued by New York State Attorney General (AG) Eric Schneiderman in January 2017 and updated by his successor, current state AG Letitia James:

A detainer is a request, and there is no legal obligation for a local law enforcement agency to detain an individual on such a detainer. Detainers are often accompanied by an administrative warrant issued by ICE. An administrative warrant is prepared and issued by federal immigration authorities and directs federal officials to arrest a noncitizen for removal or removal proceedings. It is not a judicial warrant. A judicial warrant refers to a warrant based on probable cause and issued by an Article III federal judge or a federal magistrate judge that authorizes federal immigration authorities to take into custody the person who is the subject of the warrant. A judicial warrant does not include a civil immigration warrant, administrative warrant, or other document signed only by federal immigration officials.

The idea is that administrative warrants simply reflect the opinion of the individual ICE officer or agent who issues it, and that such views do not carry the same constitutional weight as the detached and objective analysis and assessment of a federal judge or magistrate.

This fact is clarified later on in that guidance:

In accordance with the federal and state constitutions, New York law permits arrest and detention only when law enforcement officials have probable cause to believe that an individual has committed a crime or offense. A judicial warrant, signed by an Article III or federal magistrate judge, would demonstrate the necessary probable cause, and justify the arrest and detention.

Of course, there is no mechanism under current law that would allow ICE officers and agents to obtain a judicial warrant for an alien wanted on civil immigration violations, but sanctuary proponents usually elide that fact.

In any event, Tompkins County relied on that guidance when it issued its non-sanctuary (“sanctuary” being a “trigger word”, remember) sanctuary policy in February 2017, which raises the question of why the sheriff’s office there refused to hold Romero-Hernandez until ICE could pick him up.

Perhaps it was an oversight, an administrative blip, or perhaps the grandees there have decided that any immigration enforcement — even criminal — is so noisome and reprehensible that it should be stymied.

If the latter is the case, it sets up quite the showdown because from my experience, federal judges and magistrates don’t take kindly to having their directives ignored.

Three Consequences of Sanctuary Policies. I have no doubt that Kelles and her ilk have the best of intentions in crafting their sanctuary policies, but those policies have three consequences that they either ignored or were unaware of.

The first is that such policies almost exclusively protect criminals. ICE isn’t looking for grandmothers and other so-called “law-abiding” individuals in jails and prisons, and when the criminals they are looking for get released, they generally go back to largely immigrant communities.

That puts those communities in danger of further predation. A September 2021 study conducted by DOJ’s Bureau of Justice Statistics of 73,600 state prisoners released in 2008 found that 43 percent were rearrested in the first year following release, 66 percent were rearrested within three years, and 82 percent were rearrested within 10 years.

No one really knows whether illegal aliens commit more or fewer crimes than the general population, but those statistics make clear that criminals do commit more crimes, and if they can be removed, the community will be safer.

The second consequence is the threat to officer safety, and to the safety of the community as a whole, when ICE is forced to go out into the community to arrest criminal aliens who have been released under sanctuary policies.

ICE officers prefer to arrest criminal aliens in state and local custody because jails and prisons are “controlled environments” wherein those criminals have been thoroughly searched for weapons and officer back-up is copious.

One thing I have learned over three-plus decades of law-enforcement experience is that many criminals don’t simply surrender when the law shows up at their doors or approaches them on the street. They attempt to resist (violently) or flee, which poses the risk of harm to both officers and passers-by.

The third consequence is that in the course of at-large arrests, ICE officers often encounter other aliens with immigration violations whom they also arrest.

Trump’s “Border Czar” Tom Homan refers to those as “collateral arrests”, and to the extent that sanctuary officials complain about such apprehensions, they have only themselves to blame.

Why did local officials in an upstate New York sanctuary ignore a federal judicial criminal warrant and release an alien “with no legal status and a history of violence”? The reasons at this point are unclear, but one thing that’s pellucid is that the release did nothing to advance public safety.