Carlos Duque, an undocumented immigrant, was arrested on April 2 by Pelham Manor police for allegedly driving with a fake license. At his hearing on April 18 at the Town of Pelham Court, three Immigration and Customs Enforcement (ICE) officers appeared.

Duque’s next hearing was scheduled for Wednesday, but on the day of the hearing it was postponed to May 16. Patricia Tobin, criminal court clerk for the Town of Pelham, said she received a letter from Duque’s attorney postponing the hearing to three weeks later.

According to Duque’s wife Melissa, her husband’s attorney called her telling her the date of the hearing was changed because of the large crowds expected. However, Melissa also received a call from her husband at 4 p.m. saying that he was coming to the courthouse that evening, suggesting there was confusion over the date change.

In spite of the change, a rally previously planned by State Sen. Alessandra Biaggi for outside the Daronco Town House, where court is held, still went on.

The original media advisory sent out by Biaggi’s office about the demonstration included the statement that “the police called ICE to inform them of the arrest (of Duque).” However, the advisory was later corrected to remove that phrase with a statement it was wrong and an apology to Pelham and Pelham Manor.

The Village of Pelham Manor Facebook page said Duque was pulled over lawfully for allegedly violating Vehicle and Traffic Law and was charged with “several violations and crimes, including two felonies.” Duque was fingerprinted during routine arrest processing, and his fingerprints were entered into a law enforcement database. The statement said the Pelham Manor Police Department was contacted by state and federal law enforcement agencies regarding the arrest.

According to the Westchester County District Attorney’s Office, Duque is facing charges of second degree forgery and possession of a forged instrument, both Class D felonies.

The day before Duque’s first hearing, the New York Office of Court Administration (OCA) enacted a new rule prohibiting ICE agents from arresting undocumented people in New York’s state courts without a warrant from a federal judge or court order. The policy is meant to avoid a deterring effect on witnesses and others with court business that might be caused by an ICE presence in and around courthouses.

“The presence of ICE inside our courts and outside our courts signals to people that there is something they should be afraid of,” Biaggi said. “When people are afraid, they are less likely to come forward.”

Westchester County Courts abide by a similar policy, according to Westchester County Executive George Latimer. The Immigration Protection Act, enacted by the county in early 2018, requires that ICE have a warrant from a judge showing authority over county courts. The policy was originally proposed in 2017, but was vetoed by Latimer’s predecessor, Rob Astorino. After changes were made, the legislation was reintroduced and passed.

According to the Town of Pelham’s website, the Pelham Town Court hears all cases of crimes committed in the villages of Pelham and Pelham Manor. Duque’s case is in the domain of the Pelham Town Court, so the new OCA rule and the Immigration Protection Act do not apply to it.

However, in a post on the Town of Pelham Facebook page, the Town Board said that the town’s judges would be abiding by the regulations put in place by the OCA the day before Duque’s arrest.

“The policy of the town justices previously has been to follow such state guidance in the administration of their own town courts even when such guidance is applicable only to state courts and not to town and village courts,” according to the town board’s statement. The post said town justices John DeChiaro and John P. Gardner had called the OCA to “understand the guidance and to confirm to the OCA that they planned to follow that guidance.” The town board’s statement also said the OCA directive had been given to Chief of Town Constable Police Stewart Hanson with instructions to follow it.

“I’m pleasantly surprised and grateful that our court did the right thing,” Biaggi said.

Latimer said he believes that the OCA rules on immigration should be extended to all local courts.

“If our local police, county police and state police have to go through that system (of getting a warrant), so should ICE,” he said. “They (act as) the judge, jury and executioner, so to speak.”

Biaggi also supports the extension of OCA rules.

“One of the things that is really disturbing to me is that there is an unequal distribution of rules as it relates to our judicial branch,” she said. “For our courts to produce a just and equal result, they must have the same rules.” Biaggi said her team is currently looking into procedure regarding expanding the OCA decision for lower courts around the state.”

State Senate Bill S425, also known as the Protect Our Courts Act, would effectively accomplish this. The bill, which is currently in the Codes Committee, is sponsored by State Sen. Brad Hoylman and co-sponsored by Biaggi, as well as 12 others. It would “exempt certain interested parties or people from civil arrest while going to, remaining at, or returning from the place of such court proceeding,” according to the New York State Senate website. There is a corresponding bill in the Assembly.

As for Duque, he will remain in Westchester County Jail and await his next hearing on May 15.