Immigration and Customs Enforcement said it nabbed 54 people in the New York metro area during the first week of October, most of whom had been arrested by local law enforcement and then released. But critics claim ICE agents are increasingly making their own arrests by pretending they’re the NYPD, despite a sanctuary policy that prohibits local law enforcement from collaborating with ICE in most circumstances.
One case that got attention was the October 8th arrest of Fernando Santos-Martinez, a 48-year-old who has lived in the country for about 30 years, according to his wife, Maria.
Maria declined to let us use her own last name because she’s an immigrant and she’s afraid. She told WNYC/Gothamist that people knocked on the door of their Inwood apartment at 6:30 a.m. saying they needed to find her husband. He’d already gone to work at his job in a Harlem deli and she was home with their three children.
According to Maria, who spoke in Spanish, “they told me they were the police” and that Santos-Martinez had been arrested.
Maria refused to open the door. Then, she said the people who knocked came back with her building superintendent. “They told me not to be afraid,” she recalled. “That they were from the 34th Precinct, that I could call to verify.” The 34th is her local precinct.
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Maria looked through her peephole and saw several people dressed like officers, including a woman with a jacket that said “POLICE” and the initials “NY.” She let them in and they showed her a picture of the man in trouble, but she said it wasn’t her husband. So the officers asked for his phone number to clear up the confusion and Maria provided it. Hours later, she was shocked when her husband called from ICE custody.
“I feel deceived, because they identified themselves as New York policemen,” she explained. “We believe they are here to protect us, to take care of us. But, you know, right now I feel betrayed.”
Maria visited the 34th precinct later, and said an officer told her the police had not gone to her building and it must have been ICE. Santos-Martinez has been held at an ICE detention center in New Jersey ever since that day.
When asked about Maria’s account of agents claiming they were with the 34th precinct, ICE’s regional spokesman, Marcus Johnson, said he couldn't respond to “unsubstantiated claims.”
However, he said, “ICE officers do not purport themselves [to be] officers of the NYPD or any other law enforcement agency.”
Nonetheless, he said, “In the often dangerous law enforcement arena at the local, state, and federal level, being able to immediately identify yourself as law enforcement may be a life-or-death issue.
“The use of ‘POLICE’ identifiers is consistent with law enforcement agencies,” his statement continued. “For the safety of ALL law enforcement officers as well as the public, ICE is no different.”
Deceptive Tactics?
Despite the denial from ICE, there are many accounts of agents using more than the word “police” to trick people into letting them into their homes. The news station PIX11 reported on an agent apparently dressed as NYPD in Fort Greene.
Mayor Bill de Blasio sent a letter to ICE this month citing numerous instances in which he’d heard of ICE officers saying they were members of a narcotics squad, and another in which they “stated that they were ‘police’ and told the man they sought to arrest that he had to come ‘to the precinct’ where they would ‘figure this out.’”
“Clearly stated, the NYPD does not want ICE agents stating or implying that they represent the NYPD,” he wrote in his letter. “Such behavior negatively affects the public safety mission of the NYPD and erodes trust in our communities.”
Law enforcement operations from the FBI to the NYPD rely on ruses to gain someone’s trust during an investigation. John Sandweg, acting director of ICE during former president Barack Obama’s administration, said the word “police” is fair game.
“ICE agents are police and, frankly, it is an appropriate and important way of them identifying themselves for officer safety reasons,” he explained.
However, he said ICE cannot explicitly say it’s with a local police department without first getting that agency’s permission. The Immigrant Defense Project obtained training manuals that attest to this through a Freedom of Information Act request.
When asked if ICE ever requested permission to say its agents were with the local police, an NYPD spokesperson, Sergeant Mary Frances O’Donnell, said “the NYPD has not granted permission for any such agencies to represent themselves as members of the New York City Police Department.”
Sandweg also said any ruses in which ICE agents suggest they’re with local law enforcement need to be used sparingly, largely because these operations could deter immigrants from reporting crime to their local police and helping with investigations. Sandweg criticized the Trump administration’s tactics for creating a climate of fear.
“I think one of the things that make this so concerning is the fact that officers are using this against individuals who've been in this country a long time,” he said, “individuals against whom we should not prioritize our limited immigration enforcement resources.”
During the Obama administration, which deported more than 3 million immigrants, ICE changed its policies to focus on immigrants who had been convicted of crimes instead of those who were in the country unlawfully, which is a civil violation. President Donald Trump immediately reversed that policy. As a result, a larger proportion of those arrested by ICE have not been charged or convicted of crimes.
ICE maintains it needs to make more arrests at immigrants’ homes because sanctuary jurisdictions like New York refuse to cooperate. A local law prevents police from transferring immigrants to ICE custody, unless they’ve been convicted of a serious crime and there’s a judicial warrant.
“It’s frightening that New York City politicians created laws that force local law enforcement agencies to release dangerous criminals back into the community despite the seriousness of their crimes,” said Thomas R. Decker, New York field office director for Enforcement and Removal Operations at ICE, in a press release last week referring to its recent local activity.
Of the 54 immigrants arrested by ICE in the New York City metro area during early October, the agency said 31 were convicted of crimes. But not Maria’s husband, Santos-Martinez. ICE said he’s a Mexican national who was arrested in September by the NYPD and charged with assault, attempted assault, attempted gang assault, criminal possession of a weapon and harassment.
Maria wouldn’t comment on those charges but insisted her husband is not a criminal. She also said she cannot trust the police after what happened this month.
Fourth Amendment Issues
Experts say there are constitutional problems with ruses. The Fourth Amendment protects against unreasonable search and seizure in a person’s home. Attorney Genia Blaser, of the Immigrant Defense Project, said people like Maria aren’t really giving consent for police to enter if they’re being tricked.
“The individuals at the door are less likely to exercise their rights, the rights that they have to refuse entry to refuse to invoke the right to remain silent because they don't actually know that they're ICE officers,” she explained.
This is why the ACLU of Southern California is suing ICE for tactics it claims illegally blur the line between federal and local officers. Senior staff attorney Michael Kaufman said even using the word “police” is illegal because it’s not really synonymous with federal law enforcement.
“If somebody yelled, ‘Call the police,’ no one would think to call ICE.”
When asked how ICE can do its work if it always has to announce its presence, Kaufman said there are other strategies.
“They have to either go to a judge and prove that they have probable cause to arrest somebody,” he said, noting that ICE rarely obtains judicial warrants. “Or they need the person's knowing and voluntary consent to let somebody in their home.”
But Columbia Law Professor Jeffrey Fagan said ICE may be able to get away with using the word “police” because its officers are technically federal police. “Generally, the courts give fairly strong deference to the police in most of these encounters,” he said.
Watchful Eyes
Immigrant advocates are keeping a close watch on both the NYPD and ICE, following what they say are a rising number of immigrant arrests leading up to the election. Members of groups including ICE Watch scout immigrant neighborhoods before dawn to search for signs of ICE activity, such as unmarked vans.
Last week, members of Sunset Park ICE Watch demanded to see a warrant as they recorded what they thought was an arrest by immigration agents. It turned out the US Postal Police had arrested someone for allegedly distributing marijuana, and NYPD officers were called to the scene.
“The way that these federal agents are operating is very secretive,” said Jorge Muñiz-Reyes, an organizer with Sunset Park ICE Watch.
“You don't know if you can count that the letters that are on their vests are actually indeed them. And we're seeing that is the secretive police terror that, for many immigrant neighborhoods, is like a daily reality.”
He and other members said they’d continue monitoring immigrant communities, sharing photos of agents and warning people of ICE’s tactics. “When they know that they're being watched, they disappear,” said another volunteer, Josh Pacheco.
“The only way to confront injustice is to vigorously document that as best as you can,” said Muñiz-Reyes.
With translation assistance from WNYC’s Marcos Sueiro Bal
