NOTE: The Legal Aid Society's Special Litigation Unit generously shared these model
briefing materials, which IDP has edited for style. The information contained herein does
not constitute legal advice and attorneys should conduct their own research as they deem
necessary. Further questions about thse materials should be directed to Lee Wang at
lwang@immigrantdefenseproject.org.
SUPREME COURT OF THE STATE OF NEW YORK
CITY OF NEW YORK, COUNTY OF [COUNTY], _________
-----------------------------------------------------------------X
In the Matter of the Application of
[CLIENT NAME]
,
By [ATTORNEY NAME],
Petitioner,
For an Order pursuant to Article 78 of the
Civil Practice Law and Rules
ORDER TO SHOW CAUSE AS
TO WHY AN ORDER FOR
:
DEFENDANT’S RELEASE
SHOULD NOT ISSUE UPON
TERMINATION OF THE
DEFENDANT'S CASE
:
Index#:
:
-against-
:
:
Criminal Dkt#
JOSEPH PONTE, Commissioner Department of
:
Corrections
of [MONTH], 2014.
----------------------------------------------------------------X
At Part
of the
Supreme Court of the State of
New York, held in and for the
County of [COUNTY] on the
[DATE].
Present:
Honorable _____________, Justice
Criminal Court
PLEASE TAKE NOTICE, that upon all the pleadings and proceedings and heretofore,
and the annexed affirmation of [ATTORNEY NAME] attorney for [CLIENT NAME] affirmed
the [date], 2014;
Let Joseph Ponte, Commissioner, Department of Corrections (“DOC), or counsel thereof
show cause at this court in ________________ of the Supreme Court of the State of New York,
County of [county] to be held at the Court House, at [court address]], New York on the ______
day of ____________, 2014, at 9 o’clock in the forenoon of that day or as soon thereafter as
counsel can be heard, why (1) it should not be ordered that DOC is “about to” proceed “without
… jurisdiction” within the meaning of CPLR 7803(2) in that they are about to illegally hold
[client name] subsequent to his release pursuant to [CPL §180.80, 170.70, BAIL, ETC] on
[DATE OF ELIGIBLE RELEASE], in [COUNTY] Criminal Court, Part ____; or, in the
alternative (2) why a declaratory judgment pursuant to CPLR §3001 should not be made stating
that DOC has no further authority to detain [client name] once [action making client eligible for
release CPL §170.70 has been granted] on [date], in [county] Criminal Court, Part ___; or (3)
such other and further relief as may be just, proper and equitable should not be granted.
ORDERED, that the Department of Correction shall not notify federal immigration
authorities of this Order or of such individual’s approaching release.
It is further ORDERED, that personal service of a copy of this order and of the
supporting papers upon the General Counsel for the New York City Department of Correction at
75-20 Astoria Blvd, East Elmhurst, New York 11370 on or before 5:00 p.m. on the [date], 2014,
shall be timely and sufficient service.
PERSONAL APPEARANCE FOR [CLIENT] IS NOT WAIVED.
DATED: [city], New York
[date], 2014
ENTER,
_______________________________
HONORABLE _____, J.C.C.
SUPREME COURT OF THE STATE OF NEW YORK
CITY OF NEW YORK, COUNTY OF [county], _________
-----------------------------------------------------------------X
In the Matter of the Application of
[client name],
By [attorney name],
Petitioner,
:
:
VERIFIED PETITION
:
Index#:
Dkt:
For an Order pursuant to Article 78 of the
Civil Practice Law and Rules
:
-
:
against-
JOSEPH PONTE, Commissioner Department of
:
Corrections
Respondent.
:
----------------------------------------------------------------X
Petitioner, [CLIENT NAME], respectfully alleges as follows:
1.
This is a special proceeding brought pursuant to Article 78 of the Civil Practice
Law and Rules (CPLR).
2.
The proceeding is made necessary because, upon information and belief, the
Respondent and Department of Corrections (“DOC”), a local law enforcement agency, plans to
unlawfully hold the Petitioner for an additional 48 hours after the Criminal Court releases
[HIM/HER] on his own recognizance, based on a civil immigration detainer, which in no way
confers or transfers authority for such detention. Such detention of the Petitioner will violate the
Fourth Amendment of the United States Constitution and Article I, Section 12 of the New York
State Constitution.
3.
The Department of Correction’s continued detention of the Petitioner following
the Criminal Court’s releasing [HIM/HER] on [HIS/HER] own recognizance violates the
Fourteenth Amendment substantive and procedural due process clause.
4.
Petitioner therefore seeks an order that DOC is “about to” proceed “without . . .
jurisdiction” within the meaning of CPLR 7803(2) in that they are about to illegally hold [client
name] subsequent to his release [reason for release],on [date of release eligibility], 2014, in
[county] Criminal Court, Part _. In the alternative, Petitioner asks that this Court exercise it’s
discretion to issue a declaratory judgment, pursuant to CPLR §§103(c) & 3001 stating that DOC
has no further authority to detain [client name] once [action making client eligible for release],
on [date of eligibility], 2014, in [county] Criminal Court, Part ___.
Parties
5.
Petitioner [client name] is the defendant in a criminal prosecution, [county]
County Docket # _________. [He/she] is currently detained on [place of detention], awaiting
release on his own recognizance pursuant to [reason for release]. The Petitioner has [if
applicable…no criminal record, no pending criminal warrants, and no pending charges related to
controlled substances].
6.
Currently, the Petitioner’s right to release on his own recognizance is being
curtailed by the Respondent’s intention to unlawfully hold Petitioner for 48 hours after [action
causing release has been granted.
7.
Respondent PONTE is the Commissioner of the New York City Department of
Corrections (“DOC”). Respondent is currently incarcerating Petitioner on [place of
incarceration]. Respondent intends to hold Petitioner for 48 hours past the point of Petitioner’s
release, in order that U.S. Immigration and Customs Enforcement (“ICE”) can collect the
Petitioner directly from DOC. In doing so, Respondent is effectively curtailing the Petitioner’s
right to release.
Summary of Facts
8.
Petitioner was arraigned on [date of arraignment] in [county] Criminal Court, part
___, in front of the Honorable Judge __, on Docket# ___. Petitioner was charged with [charges].
At arraignments, the Petitioner also had an “ICE Hold”, which indicated the existence of a civil
immigration detainer. [$number] dollars bail was set on the Petitioner’s case, primarily because
the Petitioner could not actually be released from custody due to Respondent’s intention to hold
him for 48 hours after release was effectuated. The next court date was set to determine
Petitioner’s [insert details such as CPL §170.70].
9.
On [date], the Petitioner appeared in [county] Criminal Court, Part __, in front of
the Honorable Judge [judge]. Petitioner’s counsel, [attorney name], appeared on the record.
[Insert details of what happened... e.g. in case of CPL 170.70, the People on that date did not
have the supporting deposition necessary to convert the criminal complaint into an information.]
On the record, Judge [judge] agreed that: (1) as of [date], 2014 the Petitioner’s right to release
pursuant to [insert reason for release] had accrued; (2) but for the threatened 48 hour hold by the
Respondent, the Petitioner would have applied for said [insert reason of release] ; and (3) the
Petitioner was given free leave to apply for [form of release] in the future, and at such time the
relief need be granted.
10.
[INSERT IF RELEVANT....Also on [date], Petitioner’s counsel attempted to
file an Order to Show Cause in Part __of the [county] Supreme Court, in front of acting Supreme
Court Justice __. Said Order to Show Cause requested that the __ Supreme Court issue an order
precluding the Respondent from detaining the Petitioner for 48 hours past the Petitioner’s
[170.70 release]. Acting Justice __ refused to sign said Order to Show Cause as she believed an
Article 78 proceeding was the proper procedural mechanism.]
11.
As set forth in the Petitioners memorandum of law, the Department of Corrections
plans to illegally detain the Petitioner following his release on his own recognizance pursuant to
[reason for release]. Therefore, the Petitioner request an order that DOC is “about to” proceed
“without . . . jurisdiction” within the meaning of CPLR 7803(2) in that they are about to illegally
hold [client name] subsequent to his release pursuant to [action] on [date of release], 2014.
12.
In the alternative, Petitioner asks that this Court exercise it’s discretion to issue a
declaratory judgment, pursuant to CPLR §§103(c) & 3001 stating that DOC has no further
authority to detain [client name] once [reason for release] has been granted on [date], 2014, in
[county] Criminal Court, Part __. A person seeking a declaratory judgment may proceed either in
the form of an action or a special proceeding. State Division of Human Rights v. State, 77 M.2d
597 (Supreme Ct., Rensselaer Cty., 1973); Sherman v. City of N.Y. Support Collection Unit, 183
M.2d 478 (Supreme Ct. Bronx Cty., 2000). This request is being pursued as a special proceeding
because that is the usual form by which individuals seek equitable relief against government
agencies.
_______________________________
[attorney name]
Dated: [date], 2014
[city], N.Y.
SUPREME COURT OF THE STATE OF NEW YORK
CITY OF NEW YORK, COUNTY OF [COUNTY], _________
-----------------------------------------------------------------X
In the Matter of the Application of
[CLIENT NAME]
,
By [ATTORNEY NAME],
Petitioner,
:
:
MEMORANDUM OF LAW
:
For an Order pursuant to Article 78 of the
Civil Practice Law and Rules
-against-
Index#:
:
:
Criminal Dkt#
JOSEPH PONTE, Commissioner Department of
:
Corrections
of [MONTH], 2014.
----------------------------------------------------------------X
 [INSERT ARGUMENT AS TO WHY CRIMINAL COURT MUST ROR
CLIENT... e.g. C.P.L.§170.70, 180.80 or bail payment]
[Explain why criminal court must ROR client….e.g. in the case of 170.70, Client has
not, and does not intend to, waive prosecution by information, nor has she, nor is it his intention
to consent to be prosecuted upon a misdemeanor complaint. There is also o good cause why an
order of release should nto be issued, as there is no compelling fact or circumstance which
precluded replacement of the complaint with an information in the since the defendant’s
arraignment.]
On [date], the Petitioner appeared in [county] Criminal Court, Part __, in front of the
Honorable Judge [judge]. Petitioner’s counsel, [attorney name], appeared on the record. [Insert
details of what happened... e.g. in case of CPL 170.70, the People on that date did not have the
supporting deposition necessary to convert the criminal complaint into an information.] On the
record, Judge [judge] agreed that: (1) as of [date], 2014 the Petitioner’s right to release pursuant
to [insert reason for release] had accrued; (2) but for the threatened 48 hour hold by the
Respondent, the Petitioner would have applied for said [insert reason of release] and [insert
provision] would have mandated release; and (3) the Petitioner was given free leave to apply for
[form of release] in the future, and at such time the relief need be granted.
[Name’s] statutory right pursuant to release on his own recognizance pursuant CPL
§170.70 has attached and, upon [name’s] application, said release on his own recognizance will
be granted by the [county] Criminal Court.

The Department of Correction’s continued detention of [client] will violate the
Fourth Amendment of the United States Constitution and Article I, Section 12 of the
New York State Constitution.
The Fourth Amendment, and Article I, Section 12 of the New York State Constitution
prohibit warrantless arrests and detention absent probable cause. U.S. Const. 4th Amend.; NY
Article I. Sec. 12; see Gerstein v. Pugh, 420 U.S. 103, 105 (1975); County of Riverside v.
McLaughlin, 500 U.S. 44, 56-57 (1991). Yet, ICE continues to issue the detainers absent
probable cause, and the Department of Corrections unlawfully continues to uphold these illegal
detainers by holding individuals, such as [CLIENT], following the resolution of their criminal
case.
“There is no language in the federal statute or regulation that requires a local law
enforcement agency to detain anyone based on a federal detainer.” Mendoza v. Ponte, Index No.
14652/2014 (Kings Cty, October 15, 2014)(attached as [exhibit]. “Because there is no
requirement of probable cause that a crime has been committed, the detainer guidance continues
to put state and local officials in the position of enforcing federal civil immigration law.”
Christopher Lasch, Esq. "The Faulty Legal Arguments Behind Immigration Detainers",
Immigration
Policy
Center,
American
Immigration
Council
located
at
www.immigrationpolicy.org/perspectives/faulty-legal-arguments-behind-immigration-detainers
(last visited June 11, 2014).
However, as Judge Parker held, “[the] detention of any person in this state is subject to
the Fourth Amendment, as applied to the states through the Fourteenth Amendment, of the
United States Constitution and Article I, Section 12 of the New York State Constitution. In
essence, no person shall be detained by a government agent in the absence of probable cause.”
Mendoza v. Ponte, Index No. 14652/2014 (Kings Cty, October 15, 2014)(emphasis added). This
decision builds off a landmark decision from Oregon where the Federal District Court for the
District of Oregon recently held that the County’s continued detention of the plaintiff following
the conclusion of her criminal case violated her rights. Miranda-Olivares, 2014 WL 1414305 (D.
Ore. Apr. 11. 2014). The Court first concluded, following a textual analysis of 8 C.F.R. § 287.7,
all Circuit Court case law on the issue, as well as the input of every relevant agency, that such
detainers were voluntary requests, not mandatory holds. Id. at 7-14, citing 8 C.F.R. § 287.7(a)
(describing the purpose of a detainer “to advise another law enforcement agency” that DHS
seeks custody and provides that it is “a request” to advise DHS “prior to release of the alien.”);
Galarza, 745 F.3d at 640 (“No federal circuit court ‘has ever described ICE detainers as anything
but requests.’”); Moreno v. Napolitano, 11-cv-5452 (N.D. Aug. 11, 2011) (wherein the
Department of Justice argued that an ICE detainer does not violate the Tenth Amendment
because it is a “legally authorized request upon which a state or local law enforcement may rely.
It does not conscript state or local law enforcement to take any action or administer any
program.”). The court concluded that 8 C.F.R. § 287.7 “does not require Law Enforcement
Agencies to detain suspected aliens upon receipt of a Form I-247 from ICE and that the Jail was
at liberty to refuse ICE’s request to detain Miranda-Olivares if that detention violated her
constitutional rights.” Id. at *14.
Having found the detainers to be merely requests, rather than requirements, the MirandaOlivares court proceeded to analyze whether the County had violated the petitioner’s Fourth
Amendment rights by honoring the ICE detainer and holding her after the conclusion of her
criminal case. The court noted that the continued detention of Miranda-Olivares constituted a
“subsequent seizure” within the meaning of the Fourth Amendment. Id. at 16. Therefore,
probable cause was required to continue her detention. However, the “ICE detainer . . . provides
no probable cause for detention.” Id. The court concluded that the county “violated MirandaOlivares’s Fourth Amendment rights by detaining her without probable cause both after she was
eligible for pre-trial release upon posting bail and after her release from state charges.” Id. at 1920.
Following the issuance of decision in Miranda-Olivares, counties across the country have
ceased honoring ICE detainers, as doing so constitutes a violation of the detainees Fourth
Amendment rights. Jennifer Medina, “Fearing Lawsuits, Sheriffs Balk at U.S. Request to Hold
Noncitizens for Extra Time,” N.Y. Times, July 5, 2014. New York City Council Speaker
Melissa Mark-Viverito introduced proposed legislation last week that would direct the
Department of Correction to not honor any detainer that did not have a judicial warrant for arrest
attached to it. Matt Flegenheimer, “New York City Proposal Would Limit Detention of
Migrants”, New York Times, October 2, 2014.
At least 134 jurisdictions in the nation – from California to Minnesota to New York –
have declared they will no longer honor detainers. Kirk Semple, “New York State Sheriffs
Shying Away From Immigration Detention,” New York Times, July 30, 2014. As noted supra,
this includes at least nine sheriffs in the State of New York. Id. Chief Counsel for the New York
State Sheriffs’ Association concurred that “ICE detainers are requests, not mandates. As such,
jail inmates who are held in custody solely by virtue of an ICE detainer are being held illegally,
in violation of their Fourth Amendment rights protecting them from unreasonable search and
seizure.” Id.
Here, upon information and belief, [client]’s case having terminated yesterday, [client]
has been held absent probable cause, based solely on the voluntary request form issued by ICE
stating that [WHAT BOX IS CHECKED OFF ON DETAINER? there is “reason to believe” he
is subject to removal]. The detainer is signed by an administrative officer [OFFICER’S NAME]
and not a judge.
DOC’s legal authority to maintain custody of [CLIENT] ended on [date], when [dispo
language ] in [county] County Criminal Court to a [dispo] with a sentence of [sentence]. DOC’s
continued detention of [client] constitutes the equivalent of a new arrest. In light of this, and the
fact that immigration detainers are not warrants issued upon probable cause, respondent
DOC is violating [client]’s Fourth Amendment rights.

The Department of Corrections’ continued detention of [client] beyond the
termination of this case will violate [his/her] Fourteenth Amendment substantive
and procedural due process rights.
Because [client] has been detained past the point of [his/her] judicially authorized release,
the fundamental liberty interest of [client] guaranteed by the Fourteenth Amendment's
substantive due process protections has been violated.
Substantive due process principles forbid the infringement of fundamental liberty
interests unless the infringement is narrowly tailored to serve a compelling government interest.
Freedom from physical restraint is a liberty interest protected by a substantive due process. See
Zadvydas v. Davis, 533 U.S. 678, 690 (2001). The continued unauthorized detention of an
individual in absence of any standards guiding the issuance of the detainer is not narrowly
tailored to serve a compelling government interest.
The statutory and regulatory violations in this case will lead to the deprivation of
[client]’s freedom from physical restraint, one of the most fundamental liberties protected by our
Constitution, without due process of law: “Freedom from imprisonment—from government
custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the
Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Deprivation of this
basic liberty without any authorization in law goes to the heart of the protection of the Due
Process Clause. Where the state deprives an individual of [his/her] liberty, it must have “a
constitutionally adequate purpose for the confinement.” Jones v. United States, 463 U.S. 354,
361 (1983) (internal quotation marks omitted). In this case, not only will ICE lack a
“constitutionally adequate purpose,” it will have no statutory authority whatsoever. Where
detention exceeds statutory authorization, the government actor clearly cannot meet the
“constitutionally adequate purpose” test and the deprivation of liberty violates due process of
law. See, e.g., Benham v. Edwards, 678 F.2d 511, 531 (5th Cir. 1982), vacated on other grounds,
Ledbetter v. Benham, 463 U.S. 1222 (1983) (“The continued detention of such an acquittee, in
the absence of statutory authorization for such restraint, would violate due process of law.”).
Such a fundamental deprivation arising out of a statutory violation is grounds for termination.
Upon information and belief, the Department of Corrections plans to detain [client] past
the point of [his/her] judicially authorized release, and the fundamental liberty interests of
[client] guaranteed by the Fourteenth Amendment’s substantive due process protections will be
violated.
Procedural due process requires that the government be constrained before it acts in a
way that deprives individuals of liberty interests protected under the Due Process Clause of the
Fourteenth Amendment. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Detainers issued
by ICE purport to have state and local law enforcement officials hold individuals in custody
without any basis in state law, standards guiding their issuance, or any judicial review, solely as
a means of enforcing federal civil immigration statutes for up to 48 hours, excluding weekends
and holidays. See 8 CFR 287.7.
The Due Process Clause protects against the deprivation of liberty interests without due
process of law and requires 1) notice and 2) an opportunity to be heard prior to the deprivation as
well as a method by which to challenge the deprivation. [CLIENT] has been provided with none
of these, in violation of [his/her] due process rights. Under the Mathews balancing test, the
private liberty interest of [CLIENT] is overwhelming. The risk that [his/her] will be deprived of
[his/her] liberty erroneously and in violation of the U.S. and state Constitution is high due to the
fact that no court of law will have adjudicated the lawfulness of [CLIENTS]’s continued
detention beyond the termination of [his/her] case. Interpreting immigration detainers as
authorizing [CLIENT]’s continued unauthorized detention without judicial review violates the
procedural due process rights guaranteed by the Fourteenth Amendment.
Wherefore, [CLIENT] respectfully prays that an order for [his/her] release should issue
upon the completion of [his/her] case on [DATE].
_______________________________
PRINTED NAME, Esq.
ORGANIZATION/FIRM
Attorney for [client]
VERIFICATION
STATE OF NEW YORK
)
COUNTY OF [__])
[attorney], being an attorney at law, with offices located at [office address], affirms under
penalty of perjury that he has read the foregoing Petition and knows the contents thereof; that the
same is true to his knowledge, except for those portions stated to be alleged on information and
belief, and that as to those matters, he believes them to be true, and that he makes this
verification on behalf of Petitioner ____ because Petitioner is currently incarcerated in [___]
________________________
PRINTED ATTY NAME
Dated: [CITY], N.Y.
[DATE], 2014