By Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because an informed citizen is always the most successful citizen:

MYTH: The Immigration and Customs Enforcement (ICE) agency is undergoing no challenges to its authority to arrest and detain believed unlawful immigrants, and therefore has free rein in doing its job.

REALITY: Our law is a constantly developing thing, like a living being.  It ebbs and flows in its constant march towards justice, as we perceive it. Sometimes it goes in a particular direction, then it can double back and try a different route.  

In addition, we constantly see struggle between the states’ rights and federal rights under the U.S. Constitution.  We fought a civil war over 100 years ago, in part, because of this struggle.  Such is the developing area of New York immigration law.  

The most recent related case talks about the issue of local police officers’ duty and ability to enforce a federal ICE warrant in New York State.  The Appellate Court of Suffolk County (an intermediate appeals court) carefully considered the issue.  A former Suffolk County Sheriff was detaining for up to 48 hours any person found in Suffolk County who was the subject of an ICE warrant.  He announced the policy one month after Donald Trump was elected president.  

The plaintiff was an immigrant who entered the U.S. legally but overstayed his six-month visa.  He now has two children, one of whom is a U.S. citizen.   He was part of a Family Court case in state court.  After his state Family Court case concluded, he was arrested by a local police agency and held for federal ICE authorities.  He was place in a local jail cell rented by ICE, and deportation proceedings were begun.  

The Court said that the detention was unlawful.  They said that “…New York state and local law enforcement officers are not authorized by New York law to effectuate arrests for civil law immigration violations.”  Therefore, he should have been released after his Family Court case was concluded, and not detained. The American Civil Liberties Union executive director said the role of local law enforcement agencies is to “protect and serve all New Yorkers, and that is incompatible with the unlawful detention of our neighbors and family members at the behest of the Trump deportation machine.”  

The plaintiff is still held in New Jersey at an ICE detention and deportation facility.  The Sheriff who detained him in New York has been under consideration by the Trump administration for a job as a federal marshal.  This case may be taken up by New York States’ highest court for review, if they chose.  

MYTH:  All states have the same laws on criminal conduct.

REALITY: The U.S. Constitution expressly provides that the power to police citizens belongs to each individual state, and not to the federal government.  Congress, of course, has established certain federal crimes, which they enforce through the FBI and U.S. Attorney in each district.  

This policy has been constantly developing, especially since the 1930’s.  Since each state establishes the laws that its citizens think appropriate, there is variation.  For instance, the State of Ohio provides that individual private citizens may seek a judge’s ruling on whether or not the judge believes there exists enough evidence to prosecute a criminal charge.  (There is no requirement thereafter that an Ohio prosecutor must pursue the charge.)  

New York State provides that the entire power to bring a charge and prosecute a charge belongs to the prosecutor.  Therefore, there is no private individual right to seek a Court ruling regarding the evidence, as there is in Ohio. New Yorkers must rely on the District Attorney to seek a criminal charge. 

MYTH:  Money loaned by a lending organization to a small business is a minor issue in New York State.

REALITY:  The NYS Attorney General is currently investigating potential abuses by finance firms that offer quick money to small businesses.  Small businesses should be alert to the issues raised in the investigation.  Small businesses report they are being bombarded with offers from cash-advance companies.  One issue being examined is whether or not cash advance companies fraudulently offer quick money to a small business. Then, as part of the offer, the lender requires the business owner to sign documents without properly explaining what the borrower is signing.  

One such document is a confession of judgment whereby the borrower agrees not to defend himself in court if the lender sues, and permits the lender to drain bank accounts in repayment when and as the lender chooses.  (Some states have outlawed confessions of judgment, but not New York State).   A second issue being examined is whether or not the lender is charging interest that sometimes can be more than 400 percent of the amount borrowed.  

The lenders may fiddle with the definition of “loan”. They may claim that a cash advance in anticipation of future business receipts isn’t a” loan”, and therefore laws don’t apply.  Recently some of these firms have used New York courts act as if the courts are a debt-collection machine, draining bank accounts of thousands of small businesses.   Since 2012, such lenders may have taken judgments worth more than $1.5 billion in New York State using these methods.   Some lenders are believed to have even forged document and lied about the amount of the debt, and claimed the borrower was in default on the payment when that was not true.  

The bottom line is it is wise to have your lawyer look at all borrowing documents of every sort before signing!

Giving attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.

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