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NJ State Police May Not Inquire Into Immigration Status

On November 29, 2018, New Jersey Attorney General Gurbir Grewal drew a proverbial line in the sand by issuing a new directive that clearly demarcates criminal law enforcement from federal civil law compliance. Under Directive 2018-6, which supersedes Attorney General Ann Milgram's obsolescent 2007 directive, law enforcement is essentially instructed to limit cooperation with federal authorities unless such assistance furthers state criminal law enforcement. As the Attorney General makes clear: "New Jersey's law enforcement officers protect the public by investigating state criminal law offenses and enforcing state criminal laws. They are not responsible for enforcing civil immigration violations except in narrowly defined circumstances. Such responsibilities instead fall to the federal government and those operating under its authority." As such, the directive sets forth important new parameters under which law enforcement may or may not interact with the Department of Homeland Security when dealing with foreign nationals in New Jersey.

Some of the more salient rules include the following:

· Law enforcement is prohibited from engaging in racially-influenced profiling

· Except under certain circumstances, law enforcement shall not

1. stop, question, arrest, search, or detain any individual based solely on a) actual or suspected citizenship or immigration status; or b) actual or suspected violations of federal civil immigration law.

2. Inquire about an individual's immigration status unless doing so is a) necessary to the ongoing investigation of an indictable offense by that individual; and b) relevant to the offense under investigation.

· Except under certain circumstances, law enforcement shall not

o Participate in civil immigration enforcement operations

o Provide information about or access to a detained individual without consent

· Law enforcement shall not enter into, modify, renew or extend any 287(g) agreements absent attorney general approval, or an agreement is necessary to address public safety or welfare concerns arising out of state or national emergency

· Before March 15, 2019, all state, county, and local law enforcement shall establish procedures for processing T and U visa certifications; and police departments are to post information about its procedures on its websites

· Subject to certain exceptions, with respect to release of detained individuals, law enforcement shall not provide notice to ICE unless the detainee

o Is currently charged with, has even been convicted of, or has ever been adjudicated delinquent for a violent or serious offense

o In the past five years, has been convicted of an indictable crime other than a violent or serious offense; or

o Is subject to a Final Order of Removal signed by a federal judge and lodged with the facility where the detainee is being held.

· Subject to certain exceptions, law enforcement shall also not continue detention of a person past the time he or she would otherwise be eligible for release based solely on an immigration detainer request, unless the person

o Is charged with, has ever been convicted of, or has ever been adjudicated delinquent for a violation or serious offense

o In the past five years, has been convicted of an indictable crime other than a violent or serious offense; or

o Is subject to a Final Order of Removal signed by a federal judge and lodged with the facility where the person is being held.

In any case, such detention may only last until 11:59pm on the calendar day on which the person would otherwise have been eligible for release.

"Violent or serious offenses" are laid out in an appendix to the directive that enumerates a number of crimes.

These are only some of the significant new practices that will undoubtedly impact police encounters and law enforcement interaction with immigrants in New Jersey. In a year in which we have seen drastic, restrictionist measures, this is one welcome change that the immigrant community should embrace.

The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship, nor should it be relied upon in lieu of consultation with an attorney.

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    • Client Distinction Award martindale.com | 2016 Martindale-Hubbell Client Distinction Award
    • New Jersey State Bar Association | Paris Lee Chair - Immigration Section 2015-2016
    • Nationally Recognized | Newsweek Nationwide Showcase | Top Attorneys 2013
    • New Jersey Chapter | American Immigration Lawyers Association | Angie Garasia | Chapter Chair 2015-2016
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Lee & Garasia, LLC
190 State Route 27
Edison, NJ 08820

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