NOTE: Immigrant Defense Project adapted this sample letter from materials shared with us by
Brooklyn Defender Services. The information contained herein does not constitute legal advice
and attorneys should conduct their own research as they deem necessary. Further questions
about this letter should be directed to Lee Wang, lwang@immigrantdefenseproject.org.
[Date]
Via email to: Heidi.Grossman@doc.nyc.gov; William.Horan@doc.nyc.gov;
Florina.Getman@doc.nyc.gov
Heidi Grossman, General Counsel
Cc: William Horan, Florina Getman
New York City Department of Correction
75-20 Astoria Boulevard
East Elmhurst, NY 11370
Re:
[CLIENT], NYSID # XXX, Book and Case # [XXX]
Request That DOC Not Honor ICE Detainer
Dear Ms. Grossman:
I write to respectfully request that the Department of Correction (DOC) not honor an ICE
detainer issued against my client [CLIENT].
[CLIENT] is currently being held in the custody of the DOC. We expect that DOC's legal
authority to detain [CLIENT] will expire upon [SPECIFY REASON: 1) PAYMENT OF BAIL; 2)
DISPOSITION WITH NON-JAIL SENTENCE; OR 3) COMPLETION OF SENTENCE IN
DOC CUSTODY].
[OPTIONAL: INSERT CLIENT'S EQUITIES-- e.g. no criminal record, USC family, USC
children, primary caretaker of children, long-time resident, mental or medical health issues].
We fear that because [CLIENT] is the subject of a civil immigration detainer the DOC intends
to maintain custody of [CLIENT] even after DOC's legal authority to detain [HIM/HER] has ended.
DOC's continued detention of a person based solely on a civil immigration detainer violates the
Fourth Amendment of the United States Constitution and Article I, Section 12 of the New York State
Constitution, as well as the due process protections afforded by the Fourteenth Amendment of the
United States Constitution. Below is our position as to [CLIENT]'s release.
I.
The Department of Correction’s continued detention of [CLIENT] after DOC's legal
authority to detain [HIM/HER] would violate the Fourth Amendment of the United States
Constitution and Article I, Section 12 of the New York State Constitution.
ICE’s civil immigration detainer does not meet the probable cause requirements of the Fourth
Amendment of the United States or Article I, Section 12 of the New York State Constitution. It is a
fundamental precept of constitutional law that no person shall be seized without probable cause. U.S.
Const. amend. IV; N.Y. Const. art. I, § 12; see Gerstein v. Pugh, 420 U.S. 103, 115-17 (1975); Cnty. of
Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991). ICE detainers, however, are issued on the basis
that the DHS has “[d]etermined that there is reason to believe the individual is an alien subject to
removal from the United States.” Dep’t of Homeland Sec., Form I-247, Immigration Detainer – Notice
of Action. Both federal and state courts have recently held that the “reason to believe” standard used
by the DHS falls short of the probable cause standard required by the Constitution. See People ex rel.
Swenson v. Ponte, 2014 NY Slip Op. 24304 (N.Y. Sup. Ct. Oct. 15, 2014); Miranda-Olivares v.
Clackamas Cnty., 2014 WL 1414305 (D. Ore. Apr. 11. 2014). Recently, the Kings County Supreme
Court recognized that an immigration detainer alone does not constitute probable cause to hold an
individual in DOC custody and that continued detention on an immigration detainer alone violated the
United States and New York Constitutions. See People ex rel. Swenson v. Ponte, 2014 NY Slip Op.
24304 (N.Y. Sup. Ct. Oct. 15, 2014). In Miranda-Olivares, a United States District Court actually held
the local law enforcement agency liable for civil damages as a result of its decision to honor an ICE
detainer during the time that the plaintiff was entitled to pretrial release as well as after her criminal
case had resolved. Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305 (D. Ore. Apr. 11. 2014).
There is also widespread recognition that ICE detainers are voluntary, not mandatory. See 8
C.F.R. § 287.7(a) (stating that the purpose of a detainer is “to advise another law enforcement agency”
that the DHS seeks custody and that a detainer is “a request” to advise DHS “prior to release of the
alien.”); accord Galarza v. Szalczyk, 745 F.3d 634, 642 (3d Cir. 2014) (“[D]etainers are not
mandatory.”). Accordingly, local law enforcement agencies are at liberty to release a defendant like
[CLIENT], instead of honoring an ICE detainer, once [CLIENT] pays [HIS/HER] bail. Indeed, at
least 134 jurisdictions in the nation – from California to Minnesota to New York – have declared they
will no longer honor detainers.1 This group includes at least nine sheriffs in the State of New York.2
Moreover, the Chief Counsel for the New York State Sheriffs’ Association stated the following after
conducting a review of the case law on ICE detainers: “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.”3
II.
The Department of Correction’s continued detention of [CLIENT] after DOC's legal
authority to detain [HIM/HER] expires would violate the Fourteenth Amendment of the
United States Constitution.
By detaining [CLIENT] after DOC's legal authority to detain [HIM/HER] expires would
violate [CLIENT]'s fundamental interest in due process, as guaranteed by the Fourteenth Amendment.
See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Process Clause applies to all “persons”
within the United States, including aliens, whether their presence here is lawful, unlawful, temporary,
or permanent.”). Where the state deprives an individual of his 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, ICE has submitted a request to the DOC, indicating that it would like for the DOC
to maintain custody of [CLIENT] for a period not to exceed 48 hours. ICE also indicated that the
reason for submitting this request is that it has “[D]etermined that there is reason to believe that the
1 Kirk Semple. “New York State Sheriffs Shying Away From Immigration Detention,” New York
Times, July 30, 2014.
2 Id.
3 Id.
individual is an alien subject to removal from the United States.” Not only does ICE lack a
“constitutionally adequate purpose,” but it has 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.”).
To the extent that the Department of Correction holds [CLIENT] based on ICE’s assertion that
it has “[O]btained an order of deportation or removal from the United States for this person,” that basis
is also constitutionally inadequate. The Due Process Clause protects against the deprivation of liberty
interests without due process of law and requires that the person being deprived receive both notice and
an opportunity to be heard prior to the deprivation, as well as a method by which to challenge the
deprivation. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Even if the detainer request constitutes
notice, [CLIENT] has not received an opportunity to be heard on any allegations of removability.
The risk that [CLIENT] will be deprived of [HIS/HER] liberty erroneously and in violation of
the U.S. and New York Constitution is high, due to the fact that no court of law has adjudicated the
lawfulness of [HIS/HER] continued detention. See Mathews, 424 U.S. at 335 (stating the balancing
test for determining whether procedures are constitutionally sufficient).
The Department of
Correction’s interest dovetails with [CLIENT]'s interest: releasing [CLIENT] costs the Department of
Correction no money, reduces the number of people being held by it, and nullifies the risk of civil
liability accruing from an unconstitutional act. Detaining [CLIENT] pursuant to a request from
ICE and without any form of judicial review violates the procedural due process rights
guaranteed to [HIM/HER] by the Fourteenth Amendment.
Because the detention of [CLIENT] after the DOC's legal authority to detain my client has
expired would violate the Fourth Amendment of the United States Constitution, Article I, Section
12 of the New York State Constitution, and the due process protections afforded by the
Fourteenth Amendment of the United States Constitution I respectfully ask that you release
[CLIENT] upon [SPECIFY 1) PAYMENT OF BAIL; 2) DISPOSITION WITHOUT JAIL TIME;
3) COMPLETION OF HIS/HER SENTENCE SERVED IN DOC CUSTODY]. I am grateful in
advance for your confirmation that DOC will release [CLIENT].
Sincerely,
[ATTORNEY'S NAME]
[ATTORNEY'S AFFILIATION]
Attorney for Petitioner, [CLIENT]