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Judicial Watch • Defs Motion to Dismiss

Defs Motion to Dismiss

Defs Motion to Dismiss

Page 1: Defs Motion to Dismiss


Number of Pages:11

Date Created:May 28, 2013

Date Uploaded to the Library:February 20, 2014

Tags:Defs, Dismiss, motion

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Now comes the Defendant, Thomas Da1t, Sheriff the County Cook, lllinois 
("Sheriff'') his nttomey, Anita Alvarez, State's Attorney Cook County, through Kent Ray, Jill Ferrara and James Beligratis, Assistant State's Attorneys, and hereby moves dismiss Plaintiffs 
Complaint Chancery for Mandamus and Declaratory Relief ("Complaint"), pursuant 735 ILCS 
5/2-619. support his motion, the Sheriff states summary that Plaintiffs Complaint should dismissed because: (I) the Sheriff cannot legally compelled administer enforce federal 
regulatory program such immigration and the Complaint does not state cause action upon 
which relief can granted pursuant section 2-615 the Code Civil Procedure; and (2) 
Plaintiff has suffered injury fact legally cognizable interest and lacks standing bring the 
Complaint pursuant section 2-619(a)(9) the Code Civil Procedure. 
The framers the Constitution entrusted the power regulate immigration the political 
branchs the Federal Government. Mathews Diaz, 426 U.S. 67, (1976). Congress has 

"plenary power make rules for the admission aliens." Kleindienst Mandel, 408 U.S. 753, 766 
(1972). Decause immigration and alien status are federal issues, the U.S. Congress "has specified 

United States, U.S._, 132 Ct. 2492, 2012 U.S. LEXIS 4872 (2012). 
Pursuant its plenary power regulate immigration, Congress has enacted myriad statutes, 
among 	them U.S.C.  1226, 1226a, 1357(d), 1373 and 1644, all which are cited the 
Complaint (collectively, the "lmmigration Statutes"). These statutes provide various authorizations federal immigration officials, including those the Immigration and Customs Enforcement 
Agency ("ICE"), enforce the nation's immigration laws. Specifically, U.S.C.  1226, J226a, 
1357(d) and the associated regulation, C.F.R. 287.7, relate requests federal immigration 
officials local law enforcement officers detain aliens the custody local law enforcement 
agency for additional period hours from the date upon which the alien would 
otherwise have been eligible released from custody ("ICE Detainers").1 U.S.C.  1373 and 
1644 bar local law enforcement officers from prohibiting restricting communications with 
federal immigration officials regarding the citizenship immigration status persons the 
custody local law enforcement officers. congressional enactments, the Immigration Statutes constitute "federal regulatory 
program" within the meaning Printz United States, 521 U.S. 898, 117 Ct. 2365, 1997 U.S. 
LEXIS (1997), which the United States Supreme Court held that the federal government cannot 
"command the States' officers, those their political subdivisions, administer enforce 
federal regulatory program." Id. 934. Based Printz, therefore, the Sheriff was and not 
legally obligated participate enforcing the Immigration Statutes. 
Knowing thnt the Sheriff had legal obligation honor ICE Detainer requests, the Cook County Board Commissioners enacted ordinance 2011 entitled "Policy for responding 
ICE detainers" ("Ordinance"). The Ordinance states: 
(a) 	The Sheriff Cook County shall decline ICE detainer requests unless there written agreement with the federal government which all costs 

incurred Cook County complying with the ICE detainer shall reimbursed. 
(b) 	Unless JCE agents have criminal warrant, County officials have legitimate law enforcement purpose that not related the enforcement criminal laws, ICE agents shall not given access individuals allowed use County facilities for investigative interviews other purposes, and 
County personnel shall not expend their time responding ICE inquiries communicating with ICE regarding individuals' incarceration status 
release dates while duty. 
(c) There being legal authority upon which the federal government may 
compel expenditure County resources comply with ICE detainer 
issued pursuant U.S.C.  1226; U.S.C.  1357(d), there shall expenditure any County resources efforts on-duty County personnel for this purpose, except previously provided within this Ordinance. 
(d) Any person who alleges violalion this Ordinance may file written complaint for investigation with the Cook County Sheriff's Office Professional Review. 
Cook County Code Ordinances Sec. 46-37 (emphasis supplied). this lawsuit Plaintiff seeks order court compelling the Sheriff what the 
Immigration Statutes cannot: devote County resources comply with federal ICE Detainer requests. 
face. Urbaitis Commonwealth Edison, 143 Ill. 458, 475 (1991). ruling section 2-615 
motion dismiss, the Court must accept true all well-pleded facts the complaint and all 
reasonable inferences which can drawn therefrom. McGrath Fahey, 126 Ill. 78, (1988). 
making this determination, the Court interpret the allegations the complaint the light most 
favorable the plaintiff. Id. The question presented motion dismiss complaint for failure 
state cause action whether sufficient facts are contained the pleadings which, established, 
could entitle the plaintiff relief. Urbaitis Commonwealth Edison, 143 Ill. 458, 475 (1991). 
cause action should not dismissed the pleadings unless clearly appears that set facts can proved under the pleadings which will entitle the plaintiff recover. Bryson News Am. Pubis., 174 111. 77, 1996). the instant case, the Complaint asks this Court declare the Ordinance invalid preempted and issue writ mandamus compel the Sheriff carry out the "legal duties" represented U.S.C.  1226; 1226a; 1357(d); 1373; 1644; ILCS 5/3-6004; and ILCS 5/36021.2 (Complaint 28, 29, 37(A); (C)) state cause action for mandamus, plaintiff must establish: (I) clear right relief (2) the defendant's clear duty provide that relief; (3) and the defendant's clear authority comply with the relief sought. lloh::richter Yorath, 2013 App (11 Dist.) 110287 78-79. Stated otherwise, mandamus order will issue only compel public official perform clear, nondiscrctionary, official duty. People rel. Birkett Konetski, 233 Ill. 185, 192-93 (2009). Such relief will not granted direct the exercise discretion. Id. the instant case, mandamus order cannot issue bec