45 Misc. 3d 785
N.Y. Sup. Ct.2014Background
- Defendant Tomas Ordonez Xirum arrested July 10, 2014 on state charges (including forged instrument); no prior convictions reported.
- At arraignment counsel learned of a DHS Form I-247 immigration detainer indicating an order of deportation/removal and requesting DOC to maintain custody up to 48 hours beyond release to allow ICE to assume custody.
- DOC/ICE confirmed by fingerprint match that defendant was subject to an order of removal issued in 2008.
- Defendant sought an order directing release if DOC would not release him after termination of the criminal case; he argued the detainer does not authorize DOC to detain him and that the detainer lacks probable cause.
- At arraignment the criminal court was prepared to release him on recognizance; defendant’s counsel requested bail ($250/$250) out of concern DOC would not release him to avoid immediate transfer to ICE.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHS detainer alone gives DOC authority to continue detention after state custody would otherwise end | Detainer must show probable cause or attach an order of removal; a detainer stating only an investigation does not suffice | Detainer here shows ICE has obtained an order of removal and requests up to 48-hour custody; DOC may rely on ICE verification | Held: Where detainer reflects an existing order of removal (verified by fingerprint), DOC has probable cause to detain up to 48 hours as requested |
| Whether the detainer violates Fourth Amendment (unreasonable seizure) | Lack of warrant/order or probable cause on face of detainer makes post-case detention unreasonable | ICE verification and existing removal order supply probable cause; DOC can rely on federal agency's determination | Held: Seizure was objectively reasonable under the Fourth Amendment given confirmed removal order and limited 48-hour hold |
| Whether defendant was coerced into requesting bail to avoid unlawful post‑release detention | Counsel forced bail request because DOC would otherwise immediately turn defendant over to ICE | Bail was a strategic counsel decision; criminal court would have released on recognizance | Held: No coercion; defendant was lawfully detained on the basis of the removal order and bail remains set |
| Whether federal preemption/anti-commandeering principles invalidate DOC reliance on detainer | Detainers are "requests" and cannot compel state/local detention absent federal order | An existing federal order of removal is different—federal supremacy and field-preemption would support giving effect to an order of removal | Held: Not addressed as a separate ruling here beyond noting an order of removal would preempt contrary local action; court relied on the existence of an order of removal rather than treating detainer as mere request |
Key Cases Cited
- Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) (detainers under 8 C.F.R. § 287.7 described as requests; discussed limits on mandatory state compliance)
- Arizona v. United States, 567 U.S. 387 (2012) (federal supremacy in immigration enforcement; federal power to determine immigration policy)
- People v. Gittens, 211 A.D.2d 242 (2d Dep't 1995) (state authorities may rely on federal immigration determinations in custody decisions)