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.
CRIMINAL COURT OF THE STATE OF NEW YORK
CITY OF NEW YORK, COUNTY OF _______:
---------------------------------------------------------------X
THE PEOPLE OF THE STATE OF NEW YORK, :
:
-against__________________________
:
:
Defendant.
:
---------------------------------------------------------------X
ORDER TO SHOW CAUSE AS
TO WHY AN ORDER FOR
DEFENDANT’S RELEASE
SHOULD NOT ISSUE UPON
THE TERMINATION OF THE
DEFENDANT’S CASE
Docket # _______________
At Part ________ of the
Criminal Court of the State of
New York, held in and for the
County of ____ on the __th day
of [month], 2014.
Present:
Honorable _____________, Justice
Criminal Court
ORDER TO SHOW CAUSE
No.
PLEASE TAKE NOTICE, that upon all the pleading and proceedings and heretofore, and
the annexed affirmation of [attorney name] attorney for [client name] affirmed the ___th day of
[month], 2014;
Let Joseph Ponte, Commissioner, Department of Corrections (“DOC), or counsel thereof
show cause at this court in Part ___ of the Criminal Court of the State of New York, County of
______ to be held at the Court House, at [address], [city], New York on the ___h day of [month],
2014, at 9 o’clock in the forenoon of that day or as soon thereafter as counsel can be heard, why
an order for [client]’s release should not issue upon the termination of ___ case on [month] ___,
2014, and further why 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 6:00 p.m. on the __ day of
_______________, 2014, shall be timely and sufficient service.
PERSONAL APPEARANCE FOR [CLIENT] IS NOT WAIVED.
DATED: ___, New York
____, 2014
ENTER,
_______________________________
HONORABLE _____, J.C.C.
CRIMINAL COURT OF THE STATE OF NEW YORK
CITY OF NEW YORK, COUNTY OF _____: PART ___
---------------------------------------------------------------X
THE PEOPLE OF THE STATE OF NEW YORK, :
AFFIDAVIT IN SUPPORT OF
APPLICATION FOR AN ORDER
:
FOR DEFENDANT’S RELEASE
-againstUPON THE TERMINATION OF
:
THE DEFENDANT’S CASE
_____________
:
Defendant.
:
---------------------------------------------------------------X
State of New York
)
) ss.:
Docket # ___________
Affidavit
No.
County of __ )
_____, being duly sworn, deposes and says:
1.
I am the attorney for [CLIENT] and make this affidavit in support of [CLIENT’S]
application for an order for defendant’s release to be issued upon the termination
of [his/her] case. THIS IS THE FIRST TIME RELIEF IS BEING SOUGHT IN
THIS MANNER FOR [CLIENT]. A COURT OR JUDGE OF THE UNITED
STATES DOES NOT HAVE EXCLUSIVE JURISDICTION TO ORDER
[CLIENT]’s RELEASE.
2.
[CLIENT] – who [IF APPLICABLE has no criminal record] – was arrested and
charged with New York Penal Law § [CODE] and related charges. The charges
spring from [IF YOU WANT TO EXPLAIN].
3.
On [DATE], in Part __, [CLIENT] plans to plead guilty to [DISPOSITION] with
a promised sentence of [SENTENCE]. Therefore, [CLIENT], who has [IF
APPLICABLE, no criminal record], and no pending criminal warrants, would
then be entitled to release from Department of Correction’s custody.
4.
Upon information and belief, the Department of Correction, a local law
enforcement agency, plans to unlawfully hold [CLIENT] for an additional 48
hours based on a civil immigration detainer, which in no way confers or transfers
authority for such detention. Such detention of [CLIENT] will violate the Fourth
Amendment of the United States Constitution and Article I, Section 12 of the
New York State Constitution.
5.
Neither the Immigration and Nationality Act (I.N.A.) or the New York
Administrative Code confer authority upon the Department of Corrections, a local
law enforcement agency, to hold [CLIENT] beyond the completion of [HIS/HER]
case based on a civil immigration detainer.
6.
The Department of Correction’s continued detention of [CLIENT] following the
completion of this case violates the Fourteenth Amendment substantive and
procedural due process clause.
7.
As set forth below, the Department of Corrections plans to illegally detain
[CLIENT] following the termination of this case.
MEMORANDUM OF LAW
I.
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,” New York 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.
II.
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
THE STATE OF NEW YORK
COUNTY OF ___
)
)
DEFENSE ATTY, duly admitted to practice law in the Courts of the State of New York,
does hereby affirm, that I have read the foregoing petition and the same it is true to my own
knowledge, except as to matters therein stated to be upon information and belief, and as to those
matters I believe them to be true.
DATED:
__, NEW YORK
__, 2014
__________________________
DEFENSE ATTY, Esq.
Sworn to me this _________________
Day of ______________, 20___
_______________________________
Notary Public