NOTE: Immigrant Defense Project adapted this model briefing 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.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF [COUNTY NAME]
WRIT OF HABEAS CORPUS
THE PEOPLE OF THE STATE OF NEW YORK
Ex Rel: [ATTORNEY'S NAME]
on Behalf of: [CLIENT'S NAME]
-againstJOSEPH PONTE, Commissioner,
Department of Correction,
Respondent.
Docket No.:
NYSID No.:
DOB:
B&C:
INCARCERATED AT:
[FACILITY] CORRECTIONAL
CENTER
[SP# or Index No:]
TO:
THE PEOPLE OF THE STATE OF NEW YORK AND THE COMMISSIONER,
NEW YORK CITY DEPARTMENT OF CORRECTION
WE COMMAND YOU, that you have and produce forthwith the body of [CLIENT'S
NAME], imprisoned and detained by you at [FACILITY] Correctional Center and currently
being in your custody at the [NAME OF COURT] as it is said together with the time and cause
of such imprisonment and detention by whatsoever name the said [CLIENT'S NAME] is called
or charged before the Justice presiding at a _________ Term of the Supreme Court of the State
of New York, Part ___. _______County at the _________ Courthouse, [ADDRESS OF
COURT], New York, on the ___________ day of [MONTH], 2014 at [INSERT TIME] to do
and receive what shall then and there be considered concerning the said [CLIENT'S NAME]
and have you then and there this Writ.
ORDERED, that the Department of Correction shall not notify federal immigration authorities of
this Writ or of such individual’s release.
ORDERED, that personal service of a copy of this Order together with the petition upon which it
is based on the [COUNTY] District Attorney and the New York City Department of Corrections
at Bulova Corporate Center 75-20 Astoria Blvd, East Elmhurst, New York, 11370 and the
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[COUNTY] Supreme Court Clerk’s Office, _________ Term, on or before the
_________________, 2014 shall be deemed sufficient service.
WITNESS, Honorable _________________________, one of the Justices of the
Supreme Court, State of New York on the ____th DAY OF [MONTH], 2014.
PERSONAL APPEARANCE FOR [CLIENT'S NAME] IS NOT WAIVED.
By the Court Clerk: The above Writ allowed this _____ day of _______________, 2014.
_____________________________________
JUSTICE OF THE SUPREME COURT
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF [COUNTY NAME]
THE PEOPLE OF THE STATE OF NEW YORK
Ex Rel: [DEFENSE ATTORNEY, ESQ.]
on Behalf of: [CLIENT]
VERIFIED PETITION IN
SUPPORT OF WRIT OF
HABEAS CORPUS
Docket No.:
NYSID No.:
DOB:
B&C:
-againstJOSEPH PONTE, Commissioner,
Department of Correction,
Respondent.
INCARCERATED AT:
[FACILITY] CORRECTIONAL
CENTER
[SP No. or Index No:]
State of New York
County of Kings
)
) ss.:
)
Affidavit of [ATTORNEY's NAME]
No.
[ATTORNEY'S NAME], an attorney duly admitted to practice law in the Courts of the State of
New York affirms and says:
1. I am the attorney for the above named Defendant, [CLIENT], and make this affidavit in
support of [CLIENT]'s release despite an immigration hold at the disposition and
termination of sentence of [HIS/HER] criminal case.
2. A COURT OR JUDGE OF THE UNITED STATES DOES NOT HAVE EXCLUSIVE
JURISDICTION TO ORDER[CLIENT]’s RELEASE. CPLR § 7002(c)(3).
3. THIS IS THE FIRST TIME RELIEF IS BEING SOUGHT IN THIS MANNER FOR
[CLIENT]. CPLR § 7002(c)(6).
4. [CLIENT] – [if applicable, who has no criminal record] – was arrested on [DATE] and
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arraigned on the charges of Penal Law § [CODE] and related charges.
5. On [DATE OF DISPOSITION], in Part [NUMBER], [CLIENT] plead guilty to
[DISPOSITION] with a promised sentence of [SENTENCE]. Therefore, [CLIENT]
who has [if applicable, no criminal record], and no other pending criminal warrants,
should now be entitled to release from Department of Correction’s custody.
6. Upon information and belief, the Department of Correction, a local law enforcement
agency, has informed me that they will retain custody of [CLIENT] solely based on a
civil immigration detainer regardless of the disposition of [HIS/HER] criminal case or
the custody decision made by the judge in her criminal case. The civil immigration
detainer in no way confers or transfers authority for such detention. Such detention of
[CLIENT] violates the Fourth Amendment of the United States Constitution and Article
I, Section 12 of the New York State Constitution, as explained below.
7. 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.
8. 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.
9. As set forth below, the Department of Corrections’ continued detention of [CLIENT] in
the absence of a securing order solely based on a civil immigration detainer is illegal.
10. [INSERT JURISDICTION ARGUMENT...choose relevant argument below]
[IF PETITIONING IN COUNTY WHERE CLIENT IS DETAINED... ]This Court
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has jurisdiction over this matter in that CPLR 7002(b)(1), (3), and (5) authorizes the
filing of a Writ of Habeas with this Court. Under CPLR § 7002(b)(1) the Writ of Habeas
“shall be made to: 1. the supreme court in the judicial district in which the person is
detained . . . .” [CLIENT] is presently detained by the Department of Corrections in
[INSERT COUNTY] and is petitioning a writ in the Supreme Court, [INSERT
COUNTY].
[IF PETITIONING IN COUNTY WHERE CRIMINAL CHARGES WERE
BROUGHT...] Under CPLR 7002(b)(3) “a petition for a writ shall be made to . . . 3. any
justice of the Supreme Court . . . .” Whereas this petition for a writ is made to Judge
[JUDGE'S NAME], a Justice of the Supreme Court, [INSERT COUNTY], this Court
has jurisdiction over [CLIENT]’s petition for a writ. Finally, under CPLR § 7002(b)(5),
“a petition for a writ shall be made to . . . 5. in a city having a population of one million
or more inhabitants, a person held as a trial inmate in a city detention institution shall
petition for a writ to the supreme court in the county in which the charge for which the
inmate is being detained is pending.” Whereas [CLIENT] is a person held as a trial
inmate in a city detention institution, namely, the New York City Department of
Corrections, in a city having a million or more inhabitants, and whereas [CLIENT] is
being detained after [CLIENT'S] case was disposed with [INSERT DISPOSITION] in
[INSERT COUNTY], [HE/SHE] may petition for a writ to the Supreme Court,
[INSERT COUNTY].
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MEMORANDUM OF LAW

Statement of Facts
[CLIENT] is a __ year old [INSERT RELEVANT EQUITIES...mother, father, long-
term resident] who is currently being held, illegally, by the New York City Department of
Corrections (hereinafter “DOC”). DOC has informed [HIS/HER] attorneys that they will not
release [CLIENT] even if [HE/SHE] is ordered released by the criminal court judge solely
based on a civil immigration detainer (hereinafter “detainer”).
[OPTIONAL: INSERT ADDITIONAL EQUITIES... e.g. parent of USC children,
long-time taxpayer, medical or mental health issues]
On [DATE], the New York City Police Department arrested [CLIENT] on charges of
violating [LIST CHARGES]. On [DATE], at arraignment for these offenses, [CLIENT]’s
criminal defense attorney,[ATTORNEY'S NAME], learned of a civil immigration detainer
lodged against [CLIENT]. The detainer, dated [MONTH, DAY], 2014, Subject ID: , indicates
that the Department of Homeland Security (hereinafter “DHS”) believes [INSERT DETAINER
DETAILS-- what box is checked off?].. In the experience of [ATTORNEY'S NAME],
individuals alleged to have [SPECIFY WHY CLIENT IS INELIGIBLE UNDER CURRENT
DETAINER LAW...e.g. an order of deportation] are not considered entitled to release under
the local law by DOC.
[ATTORNEY'S NAME] proceeded to contact [INSERT NAME OF DOC
ATTORNEY YOU EMAILED/CALLED], an employee of DOC’s Legal Unit, to determine if
DOC would consider releasing [CLIENT] to the community in light of the fact [INSERT
EQUITIES]. [DOC ATTORNEY] responded that [INSERT DOC'S RESPONSE].
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Consequently, [ATTORNEY'S NAME] now submits a Writ of Habeas Corpus in order to
petition for [CLIENT]'s release.

The Department of Correction's continued detention of [CLIENT] violates the
Fourth Amendment of the United States Constitution and Article 1, Section 12 of
the New York State Constitution.
The United States Constitution and the New York State Constitution prohibit warrantless
arrests and detention absent a determination of 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). Despite this well-settled principle of constitutional law,
ICE routinely issues detainers that fall short of establishing probable cause, and the Department
of Corrections has demonstrated a custom and practice of honoring these unconstitutional
detainers by holding individuals, including [CLIENT], after they are entitled to pretrial release
and after the resolution of their criminal cases.
Both federal and state courts have held that ICE detainers do not meet the probable cause
requirement of the Fourth Amendment of the United States or Article 1, Section 12 of the New
York State Constitution. In a recent decision from Kings County Supreme Court, Judge Parker
observed that “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,” See People ex rel. Swenson
v. Ponte, 2014 NY Slip Op. 24304 (N.Y. Sup. Ct. Oct. 15, 2014), citing Miranda-Olivares v.
Clackamas Cnty., 2014 WL 1414305 (D. Ore. Apr. 11. 2014). Thus, when an ICE detainer is
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,” an ICE detainer provides insufficient
probable cause for detention. Id.
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People ex rel. Swenson builds on a landmark decision from the Federal District Court for
the District of Oregon, which held that a county's continued detention of the plaintiff following
the conclusion of her criminal case violated the Fourth Amendment and subjected the county to
civil liability. See Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305 (D. Ore. Apr. 11.
2014). The Federal District Court first determined that ICE detainers are voluntary requests, not
mandatory holds, id. at *7-14, citing 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.”), and concluded that “the Jail was at
liberty to refuse ICE’s request to detain [the plaintiff] if that detention violated her constitutional
rights,” id. at *8. The court next determined that the detention of the plaintiff during two distinct
periods – after [HE/SHE] was entitled to pretrial release and after her criminal case was resolved
– constituted a seizure within the meaning of the Fourth Amendment. Id. at 10. Because the
ICE detainer did not itself establish probable cause to detain the plaintiff, the court held that the
law enforcement agency had violated the plaintiff’s Fourth Amendment rights and was liable for
civil damages. Id. at *11.
Following the decision in Miranda-Olivares, counties and cities across the country have
ceased honoring ICE detainers, as doing so constitutes a violation of the detainees Fourth
Amendment rights.1
Indeed, at least 134 jurisdictions in the nation – from California to
Minnesota to New York – have declared they will no longer honor detainers.2 As noted above,
1 Jennifer Medina. “Fearing Lawsuits, Sheriffs Balk at U.S. Request to Hold Noncitizens for Extra Time,” NEW
YORK TIMES (July 5, 2014).
2 Kirk Semple. “New York State Sheriffs Shying Away From Immigration Detention,” NEW YORK TIMES (July 30,
2014).
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this includes at least nine sheriffs in the State of New York. 3 Id. Chief Counsel for the New
York State Sheriffs’ Association has stated 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.”
4
In line with this national trend, the New York City Council passed
legislation on October 22, 2014 which would require ICE to provide a warrant signed by an
federal judge as a prerequisite to complying with a detainer request5.
Here, upon information and belief, [CLIENT] will be held absent probable cause, based
solely on the voluntary request form issued by ICE stating that there is [INSERT DETAINER
DETAILS-- what box is checked off?]. The detainer is signed by an administrative officer and
not a judge.
DOC’s legal authority to maintain custody of [CLIENT] ends on [DATE], when the
[COUNTY] Criminal Court orders [HIS/HER] release from custody.
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.
3 Id.
4 Id.
5 See New York City Council Int. No. Int. 0486-2014, A Local Law to amend the administrative code of the city of
New York, in relation to persons not to be detained by the department of correction and Int. 0487-2014, A Local
Law to amend the administrative code of the city of New York, in relation to persons not to be detained by the
police department; Erin Durkin, “City Council passes bill to stop NYC from detaining immigrants for the feds,”
NEW YORK DAILY NEWS (October 22, 2014).
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
The Department of Correction's continued detention of [CLIENT] violates
[HIS/HER] Fourteenth Amendment substantive and procedural due process rights.
By detaining [CLIENT] after [HIS/HER] judicially authorized release, the Department of
Correction has violated [HIS/HER] 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.”).
Freedom from physical restraint is a liberty interest that is protected by substantive due
process. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
Indeed, “[f]reedom 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, 533 U.S. at 690.
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). ICE not only lacks 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.”). Such a fundamental deprivation arising out of a
statutory violation is grounds for termination.
To the extent that the Department of Correction is holding [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. Procedural due process requires that
10
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). 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).
[CLIENT] is currently being detained by the Department of Correction, based solely on a
request by ICE that [HE/SHE] be held. 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.
Importantly, [CLIENT] has not been provided with notice of the allegations against [HIS/HER]
by ICE.
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 state Constitution is
high, due to the fact that no court of law has adjudicated the lawfulness of [HIS/HER] continued
detention beyond the termination of [HIS/HER] case. 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]: releasing [CLIENT]costs the
Department of Corrections no money, reduces the number of people being held by it, and
nullifies the risk of civil liability accruing from an unconstitutional act.
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In light of the above, detaining [CLIENT] pursuant to a request from ICE and without
any form of judicial review violates the procedural due process rights guaranteed by the
Fourteenth Amendment.
Wherefore, __________ respectfully prays that an order for [CLIENT]'s release.
_______________________________
[ATTORNEY NAME]
[ORGANIZATION/FIRM]
Attorney for Petitioner
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VERIFICATION
THE STATE OF NEW YORK
)
COUNTY OF [COUNTY NAME])
[ATTORNEY'S NAME], 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:
[COUNTY], NEW YORK
[DATE]
__________________________
[ATTORNEY'S NAME]
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