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McCann v Dart Surreply

McCann v Dart Surreply

Page 1: McCann v Dart Surreply

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Date Created:September 5, 2013

Date Uploaded to the Library:November 13, 2013

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THOMAS DART, his official
capacity Cook County Sheriff,
Case Number: 10583
Plaintiff Brian McCann, counsel and pursuant the Court August 22, 2013 order,
respectfully submits this surreply further opposition Defendant motion dismiss.
Ambiguous denials made other parties other litigation pending other courts
cannot alter clear, statutory scheme the plain language regulation.
Defendant asks the Court take judicial notice three denials made government
lawyers lawsuit currently pending another court attempt undercut the
unambiguous language federal regulation. The Court should decline so.
The plaintiffs that putative class action lawsuit, Moreno, al. Napolitano, al.,
Case No. 11-cv-05452 (N.D. Ill.), challenge the authority the U.S. Department Homeland
Security DHS and U.S. Immigration and Customs Enforcement ICE issue immigration
detainers generally and allege that the detainers violate the Fourth, Fifth, and Tenth Amendments the U.S. Constitution, among other claims. Two the denials are from the defendants 
answer the plaintiffs amended complaint the Moreno litigation:
Defendants Deny the allegation the second sentence that detainer, which
legally-authorized request upon which state local enforcement agency may
rely, imposes requirement upon the [Law Enforcement Agency] maintain
The allegations this paragraph call for legal conclusion which response required. the extent response required, Defendants Deny the
allegations the second sentence that the regulation cited the I-247 form,
which legally authorized request upon which state local law enforcement
agency permissibly may rely, imposes requirement upon the LEA detain the
individual ICE behalf.
Exhibit and 24. The third, which the defendants the Moreno litigation deny that
ICE detainers impose any requirement state local law enforcement agencies LEAs
appears response request for admission: Defendants admit that ICE detainers,
which are legally authorized requests upon which state local law enforcement agency may
permissibly rely, not impose requirement upon state local law enforcement agencies. 
Exhibit Response Request No. 16. initial matter, assertions made other parties other litigation pending other
courts are not the proper subject request for judicial notice. See, e.g., People Davis, Ill. 157,164-65 (1976); Walsh Union Oil Co., Ill. 295, 299 (1972). And course,
not the detainers themselves that impose any legal requirement LEAs. the underlying
federal regulation that imposes the requirement. All three denials from the Moreno litigation are
ambiguous this regard because they ignore this distinction. detainer merely piece
paper. The regulation, contrast, law, and unambiguously states:
Upon determination the [U.S. Department Homeland Security] issue
detainer for alien not otherwise detained criminal justice agency, such
agency shall maintain custody the alien for period time not exceed
hours, excluding Saturdays, Sundays, and holidays order permit assumption custody the Department. C.F.R. 287.7(d) (emphasis added). This plain language undeniably imposes clear, nondiscretionary legal duty LEAs, including Defendant.
Because Section 287.7(d) unambiguous its face, looking any type extrinsic
material aid its interpretation would error. Christensen Harris County, 529 U.S. 576,
588 (2000); Nowak City Country Club Hills, 1011 111838, (2011). Referring
ambiguous denials made defense lawyers part legal strategy some other, pending
litigation would particularly inappropriate. These denials not reflect any formal agency
process, such the rulemaking and notice and comment provisions the Administrative
Procedure Act. See Christensen, 529 U.S. 586-87. There claim that they are derived
from DHS delegated lawmaking powers. Id. cannot even said that they have the force interpretive rule, enforcement guideline, opinion letter, some other type official policy
statement. Id. They reflect nothing more than lawyer litigation strategy. Even reference
extrinsic materials were appropriate, the ambiguous denials the defendants the Moreno
litigation are not entitled any weight all, much less any persuasive effect.
The denials also are odds with decades history. The Immigration and Naturalization
Act INA authorizes DHS promulgate regulations designed implement the objectives
the INA. U.S.C. 1103(a)(3). Following amendments the INA 1986, the Immigration
and Naturalization Service, which was the predecessor DHS, promulgated two separate
regulations, one governing detainers issued aliens charged with controlled substance violations
and the other governing detainers for other offenses.1 1997, the two separate regulations were
Department Justice, INS, Documentary Requirements: Nonimmigrants; Waivers; Admission Certain
Inadmissible Aliens; Parole Judicial Recommendations Against Deportation Proceedings Determine Deportability Aliens the United States: Apprehension, Custody, Hearing and Appeal Field Officers; Powers and Duties,
Final Rule, Fed. Reg. 9281 (March 22, 1988).
merged into one.2 That regulation has remained unchanged for the past sixteen years.3 plainly
effectuates the clear congressional mandate that aliens suspected found have committed
certain types criminal acts terrorism offenses shall taken into federal custody for
immigration purposes when released from the custody LEAs. U.S.C. 1226(c)(1),
1226a(a)(1), and 1357(d); see also Comm. for Immigrant Rights County Sonoma, 644
Supp. 1177, 1198 (N.D. Cal. 2009) (finding that Section 287.7 was well within the broad
authority DHS enact regulations effectuating the provisions the INA). Defendant cannot
undo this long history formal agency process otherwise obfuscate the plain language
Section 287.7(d) merely citing handful ambiguous denials made lawyers for the
defendants unrelated lawsuit. addition, Defendant misses the mark arguing that the use the word request
Section 287.7(a) somehow turns the legal obligation Section 287(d) into purely discretionary
matter argument that seeks bolster citing the denials the Moreno litigation.
The text Section 287.7(a) obviously prefatory. merely summarizes the subsections that
follow. addition, clear from the overall language and structure the regulation that
detainer issued under Section 287.7 can serve least two different functions informational
function and custodial function. C.F.R. 287.7(c) and (d). the extent that the word
 request applies either these functions, the fairest reading the regulation that does with respect the informational function only.
Department Justice, INS, Inspection and Expedited Removal Aliens; Detention and Removal
Aliens; Conduct Removal Proceedings; Asylum Procedures, Fed. Reg. 10312, 10392 (March 1997). their answer the amended complaint the Moreno litigation, the defendants admitted that, [f]rom
1997 August 2010, the I-247 detainer form stated that was required C.F.R. 287.7 that the LEA detain the
individual for additional hours order for ICE assume physical custody the individual. Exhibit
Def Reply 24.
Section 287.7(c) states that LEA shall provide [ICE] with all documentary records
and information available from the [LEA] that reasonably relates the alien status the
United States, that may have impact conditions release. Section 287.7(d) states that
LEAs shall maintain custody alien for additional period time not exceed
hours. Section 287.7(c) obviously refers the informational function detainer, and
Section 287.7(d) obviously refers the custodial function detainer.
The word request appears only the fourth and final sentence Section 287.7(a),
which states, detainer request that such agency advise [ICE], prior the release the
alien, order for [ICE] arrange assume custody, situations when gaining immediate
physical custody either impractical impossible. request advise ICE can only
read request for information. cannot fairly read request maintain custody alien while remaining true the actual words the regulation. There corresponding
 request maintain custody alien Section 287.7(a); there only request
 advise. The third sentence Section 287.7(a) states, detainer serves advise another law
enforcement agency that [ICE] seeks custody alien presently the custody that agency,
for the purpose arresting and removing the alien. does not use the word request all.
Defendant argument nonetheless conflates the informational function detainers
with the custodial function. There ambiguity with respect the custodial function
detainers under Section 287.7(d), however. While Section 287.7(a) may request that LEA
The entire provision set forth page supra.
 advise ICE, Section 287.7(d) does not ask that ICE advised anything. requires that
LEAs shall maintain custody aliens named detainers.5
Construing Section 287.7(d) mere request also would create impracticable
absurd result, which courts are required avoid when construing provisions law. Nowak,
2011 111838 21. would mean that, order for ICE assume custody particular,
wanted aliens, ICE would have station federal agents the steps jailhouses across the
country wait for them released. Such construction obviously impractical, not
absurd, way for ICE carry out its statutory mandate that certain criminal aliens suspected
criminal aliens shall taken into custody for immigration purposes when released from the
custody LEAs. See U.S.C. 1226(c)(1), 1226a(a)(1), and 1357(d). Interpreting Section
287.7(d) according the plain meaning its text, however, would create 48-hour window
opportunity for ICE pick and assume custody these particular, wanted aliens without
having wait the jailhouse steps for them emerge far more practical outcome.
Defendant also has failed identify single court that, when actually adjudicating
whether Section 287.7(d) imposes mandatory obligation LEAs merely discretionary,
reached this impractical, not absurd construction the regulation.6 contrast, Plaintiff has
identified two additional courts that, addition Galaraza Szalczyk, 201 U.S. Dist. LEXIS
47023 (E.D. Pa. March 30, 2012), have adjudicated this precise question and found that the
Section 287.7(d) also provides the LEA with separate authorization for the continued, lawful detention alien for additional hours. See Rivas Martin, 781 Supp. 775, 780-82 (N.D. Ind. 2011) (holding that alien stated claim for violation her constitutional rights when she was detained LEA for days beyond
the 48-hour period authorized C.F.R. 287.7(d)); see also County Riverside McLaughlin, 500 U.S.
(1991) (holding that presumptively reasonable detain person without warrant for hours pending
determination probable cause). Thus, Defendant hyperbolic assertion that construing Section 287.7(d)
request necessary avoid forcing him violate the constitutional rights prisoners plainly wrong.
The court Burquer City Indianapolis, 2011 U.S. Dist. LEXIS 68326 (S.D. Ind. June 24, 2011), did
not adjudicate the issue.
regulation does impose mandatory obligation LEAs. Ramirez-Mendoza Maury County,
2013 U.S. Dist. LEXIS 10533, *20 (M.D. Tenn. Jan. 25, 2013) [T]he ICE detainer imposed
federal mandate upon the Defendant Defendant was required federal law maintain
custody Plaintiff for period not exceed hours Rios-Quiroz Williamson County,
2012 U.S. Dist. LEXIS 128237, *10 (M.D. Tenn. Sept. 10, 2012) [T]he Court finds that the
regulation mandatory Thus, the denials the Moreno litigation are odds with the final
rulings least three separate federal courts.
Nor can Defendant heard complain that this clear, non-discretionary legal duty
imposed him Section 287.7 unconstitutional. free challenge the
constitutionality Section 287.7 appropriate time and place. has not done so. Any
such challenge well beyond the scope this action.
Finally, assuming for the sake argument that the custodial function detainer
issued under Section 287.7(d) may characterized request, the use the word request merely polite way for one law enforcement agency address another. Contrary the
denials the Moreno litigation, request that Defendant cannot refuse, the words shall
maintain custody make crystal clear. Defendant bound the plain language Section
287.7(d). See Hillsborough County Automated Med. Labs., 471 U.S. 707, 713 (1985).
Defendant exceeded the court-imposed page limit trying remedy his
failure address Plaintiff Sections 1373 and 1644 claims.
Defendant motion dismiss failed address Plaintiff claim that Defendant refused comply with his clear, non-discretionary legal duties under Title Sections 1373 and 1644
the U.S. Code. Defendant attempted remedy this omission submitting reply that exceeds
the page limit set the Court June 2013 order. For that reason alone, pages and
the reply, which contain Defendant Sections 1373 and 1644 argument, should disregarded.
Defendant should not permitted exceed the Court basic guidelines remedy his own
failure raise issue that could have raised earlier. Defendant forfeited the argument.7
Defendant also wrong the merits. Plaintiff expressly alleges that Defendant has
prohibited federal immigration officials from having access prisoners the records
prisoners Defendant custody using [Cook County Sheriff Office] facilities for
investigative interviews obtain information about prisoners citizenship immigration
status. Compl. and 31. addition, Plaintiff expressly alleges that Defendant also has
prohibited [Cook County Sheriff Office] personnel employees from responding inquiries federal immigration officials about prisoners citizenship immigration status from
communicating with federal immigration officials about the incarceration status release dates prisoners his custody. Id. Defendant miscasts these factual allegations facial
challenge Section 46-37 the Cook County Code the Ordinance They are such thing.
They are the factual predicates Plaintiff claim that Defendant failing carry out his clear,
legal duties under Sections 1373 and 1644, failure that Defendant seeks excuse invoking
the Ordinance. Id. with the refusal honor immigration detainers, Defendant has
cited the Ordinance justify his actions Plaintiff does not challenge the ordinance its face.
Plaintiff only challenges Defendant refusal fulfill legal duties imposed him law that,
under the Supremacy Clause, superior the Ordinance.
Sections 1373 and 1644 impose clear, non-discretionary legal duties local officials
refrain from prohibiting any way restricting communications with federal immigration
Defendant cites page his motion support the assertion that challenged Plaintiff claim that
refuses carry out his legal duties under Sections 1373 and 1644. The only reference Sections 1373 and 1644
this page single sentence that summarizes the allegations the complaint generally and lists various statutory
provisions cited the complaint. The motion then launches into entirely irrelevant discussion the U.S.
Supreme Court ruling Printz United States, 521 U.S. 898 (1997).
officials about person citizenship immigration status.8 U.S.C. 1373(a), (b)(1) and
1644. Section 1373(b)(3) expressly imposes clear, non-discretionary legal duty local
officials refrain from prohibiting any way restricting local government entity from
 exchanging information person citizenship immigration status with federal
immigration officials. U.S.C. 1373(b)(3). Defendant quite plainly restricting
government entity and government officials the Cook County Sheriff Office and its officials
 from sending exchanging such information with federal immigration officials. Compl. and 31. His actions violate both Sections 1373 and 1644.
Contrary Defendant argument, the question before the Court not whether Plaintiff bringing facial challenge some other type challenge the Ordinance whether the
Ordinance like unlike the executive order issue City New York United States, 179
F.3d (2d Cir. 1999). The question whether Defendant actions alleged the Complaint
conform the requirements the law. They not. City New York, the Court upheld the
constitutionality Sections 1373 and 1644, declaring that the U.S. Congress has plenary power legislate the subject aliens and immigration and that the federal government may impose
legal duties state and local officials touching aliens and immigration, including the duties
imposed the challenged statutes. 179 F.3d 34-35. Plaintiff does not cite City New York demonstrate that the Ordinance preempted Sections 1373 and 1644. Plaintiff cites
City New York demonstrate that Defendant constitutional argument under Printz United
States has already been considered and rejected one the most prominent, well-respected
federal appellate courts the country:
One federal appellate court recently characterized Sections 1373 and 1644 requir[ing] state]
provide immigration-related information the federal government and other states upon request and prohibit[ing]
state] from restricting this transfer information. Hispanic Interest Coal. Ala. Governor Ala., 691 F.3d
1236, 1248 (11th Cir. 2012).
The City sovereignty argument asks turn the Tenth Amendment shield
against the federal government using state and local governments enact and
administer federal programs into sword allowing states and localities engage passive resistance that frustrates federal programs the Constitution has
resolved that problem the Supremacy Clause, which bars states from taking
actions that frustrate federal laws and regulatory schemes.
179 F.3d 35. Regardless whether City New York binding Illinois court, the
Supremacy Clause binding, and City New York application the Supremacy Clause
both highly persuasive and entitled substantial weight.
Finally, while Defendant asserts that City New York could have been litigated
differently, Defendant challenge the constitutionality Sections 1373 and 1644 fares
better than New York City challenge that case. Defendant entire argument consists
few sentences the tail end reply brief that exceeded court-ordered page limit.
Defendant afterthought argument neglects almost entirely the weighty issues involving
the federal government plenary power legislate the subject aliens, the Supremacy
Clause, and the Tenth Amendment that must addressed adjudicate the constitutionality
Sections 1373 and 1644. Defendant argument fails just like New York City argument failed.
Dated: September 2013
Respectfully submitted,
Christine Svenson
Ill. Bar No. 6230370
Cook County Attorney No. 44565
505 LaSalle Street, Suite 350
Chicago, 60654
Tel: (312) 467-2900
Fax: (312) 467-2902
Paul Orfanedes
Ill. Bar No. 6205255
Cook County Attorney No. 43158
425 Third Street, S.W., Suite 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Counsel for Plaintiff