Roughly a week after Gov. Kathy Hochul of New York announced new restrictions on federal immigration agents, including a mask ban, the Department of Homeland Security made clear it was girding for battle.
In an internal memo, the department’s general counsel assured agents that they were “not legally required to comply with state and local mask prohibitions while carrying out their official duties.”
The memo, dated May 15 and reviewed by The New York Times, added that officers should “freely perform their authorized duties without concern for state interference or fear of prosecution.”
The guidance signals that the agency has no intention of cooperating with a wave of legislation across the country that aims to curtail immigration enforcement after the deaths of two Americans at the hands of immigration officers in Minneapolis.
New York is the latest to join the fray, enacting legislation that bans masks, allows Immigration and Customs Enforcement agents to be sued for constitutional violations, and prohibits agents from searching “sensitive locations” like hospitals and schools without a warrant signed by a judge.
“If you are enforcing the law, you should not be hiding from it,” Jen Goodman, a spokeswoman for Ms. Hochul, said in response to the news that the Department of Homeland Security, which oversees ICE, was already preparing to disregard New York’s mask ban. “Any ICE agent who comes to New York and violates our laws will be held accountable.”
The state will also prohibit informal and formal arrangements, called 287(g) agreements, between counties and ICE that had allowed the federal agency to use local law enforcement and jails to arrest and detain people suspected of being in the country illegally.
In a statement, the Department of Homeland Security said it does not comment on leaked materials. But it called mask bans like New York’s “despicable and a flagrant attempt to endanger our officers,” arguing that agents wear face coverings only to protect themselves and that under the Constitution, state and local politicians “do not control federal law enforcement.”
“To be crystal clear: We will not abide by unconstitutional bans,” the statement said.
The Trump administration’s border czar, Tom Homan, said earlier this month that New York’s legislation would make his agency’s work “more dangerous and less efficient.”
“When I lose those 287(g) programs, I lose those jails, that means I’ve got to send more officers into the street to look for more people you released,” he said in an interview with The Washington Examiner.
Lawmakers and immigrant advocates say that New York’s legislation, which was included in the state budget formally passed Wednesday evening, does not go far enough. Even though informal agreements between ICE and local law enforcement are prohibited, there is nothing in the law explicitly preventing the police from calling immigration officials after, for instance, a traffic stop involving someone potentially subject to deportation.
Ms. Hochul, who fought against creating a blanket rule to ban such calls, said on Thursday that police officers still should not be calling immigration just because someone is speaking Spanish.
“Why would you call ICE in that situation?” she said. “That is not your job.”
The tension reflects the ambition and limitations of a multistate effort to curtail the Trump administration’s immigration crackdown — some of the most visible pushback to federal power during President Trump’s second term — and previews how the politically charged issue may play out in the midterm elections.
With the president’s approval ratings falling, Republicans are trying to keep immigration concerns at the forefront of their political messaging, as they successfully did in pushing Mr. Trump to victory in 2016 and 2024. But the two deaths in Minnesota this year, as well as an increasing number of deaths in ICE custody, has complicated the narrative and emboldened states across the country to take legislative action.
California, Colorado, Washington and Wisconsin have introduced bills that would allow residents to sue immigration agents in state court for constitutional violations. Federal employees currently have broad impunity, making accountability all but impossible.
In September, Gov. Gavin Newsom of California signed two pieces of legislation, one of which prohibited ICE agents from wearing masks and another that required that they display identification.
California’s mask ban was overturned by a federal judge on constitutional grounds because it treated federal law enforcement differently from state law enforcement. A companion measure requiring both local and federal agents to display identification was also recently blocked by the Ninth Circuit Court of Appeals.
New York’s legislation was written with those decisions in mind. Both the mask ban and the private right to sue apply to both state and federal officials, which lawmakers hope will be enough to withstand the inevitable legal challenge.
“Where federal power ends and the state’s begins is a challenging line to find in the best of times,” said Senator Zellnor Myrie, a Democrat, who helped craft the package. “We tried very hard to learn lessons from across the country and ensure that what ultimately became law would stand as firmly as possible in the face of a legal challenge.”
The largest operational impact in New York is likely to be the rule preventing immigration agents from using local jails for detention.
“Now we can’t even buy a bed from the local sheriff,” Mr. Homan told The Washington Examiner. “So we arrest somebody that’s in a county in New York, we have no bed, which means we’ve got to fly that person out.”
But he added that Mr. Trump’s domestic policy law “gave us, you know, unprecedented amount of transportation money.”
The agency has considered opening a large detention facility in New York, as it has in other states. But a potential location in Chester, in Orange County, was abandoned after opposition from residents of the county, which President Trump won in 2024 by eight points.
Grace Ashford covers New York government and politics for The Times.
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