Here is the motion on McHenry County Sheriff Bill Prim’s behalf in the case of the illegal alien Niceforo Macedo-Hernandez now in the custody of the Immigration and Customs Enforcement Agency:

IN THE CIRCUIT COURT OF THE 22nd JUDICIAL CIRCUIT
COUNTY OF McHENRY, STATE OF ILLINOIS

17 CM 1078

PEOPLE OF THE STATE OF ILLINOIS, )
Plaintiff, )

STATE’S MOTION TO STRIKE AND RESPONSE TO THE DEFENDANT’S EMERGENCY MOTION

NOW COMES the PEOPLE OF THE STATE OF ILLINOIS, by and through their Attorney, Patrick Kenneally, on State’s Motion to Strike and Response to the Defendant’s Emergency Motion.

FACTS:

On May 16, 2014, McHenry County entered into a Detention Services Intergovernmental agreement. See Ex. A.

Pursuant to this contract, the United States Marshals Service or the Immigration and Customs Enforcement (ICE), which is now a part of the Department of Homeland Security (DHS), may house federal immigration detainees at the McHenry County Jail.

On August 8, 2017, the Defendant was arrested for domestic battery after he allegedly grabbed his wife’s wrists, causing cuts and redness to her arm. See Ex. B.

During the Domestic Violence Risk Assessment interview conducted by police with the Defendant’s wife after the Defendant’s arrest, she indicated that the Defendant has previously hit and strangled her and threatened to kill himself. See Ex. C.

The Defendant has previously been arrested for domestic battery on June 24, 2016. See Ex. D.

In that case, the Defendant is alleged to have grabbed and squeezed his wife’s torso, thereby causing bodily harm.

The Defendant subsequently plead guilty to an amended charge of battery. See Ex. E.

On August 9, 2017, the Defendant appeared in rights court and bond was set at $5,000 with 10% to apply. See Ex. F.

Initially, the Defendant was unable to post bond and remained in custody on the pending domestic battery charges.

That same day, the Department of Homeland Security issued an Immigration Detainer –Notice of Action, form I-247A. See Ex. G.

The Detainer requests that the Sheriff Department notify DHS as early as practicable before the alien is released and maintain custody of the alien for a period not to exceed 48 hours beyond the time when he/she would otherwise have been released.

On August 28, 2017, the Governor signed Senate Bill 31, the Trust Act. The Trust Act provides in pertinent part:

A law enforcement agency or law enforcement official shall not detain or continue to detain any individual solely on the basis of any immigration detainer or non-judicial immigration warrant or otherwise comply with an immigration detainer or non-judicial immigration warrant.”
SB 31, section 15(a).

On August 30, 2017, KRV Legal filed an appearance on behalf of the Defendant and Emergency Motion to Enforce Defendant’s Release Following Posting of Bond. See Ex. H and I.

In his August 30, 2017 Emergency Motion, the Defendant claims that his bond has been posted and, pursuant to the Trust Act, he should be released.

On September 1, 2017, the DHS issued a Warrant for Arrest of Alien, Form I-200 authorizing the arrest of the Defendant on the basis that he is a removable alien. See Ex. J

This warrant was served later that day by Deportation Officer Bewick at the McHenry County Jail.

After the warrant was served, that same day, the Deportation Officer J. Pauly of the DHS issued a Notice of Custody Determination indicating that the Defendant was being detained by the DHS. See Ex. K. Thereafter, on information and belief, the DHS transferred custody of the Defendant pursuant to the May 16, 2014 contract.

On September 1, 2017, this matter was heard by this Court.

After discussing the matter, the State and defense presented an Agreed Order wherein the State and defense agreed to continue the case until September 6, 2017 for the State to “advise the court if a response will be filed.” See Ex. L.

Later on September 1, 2017, the Defendant presented an Affidavit in Support of Emergency Motion to Enforce Defendant’s Release Pursuant to the Illinois Trust Act and again sought audience before this Court. See Ex. M.

It is unclear whether this affidavit was filed with the Circuit Clerk. The Motion is identical to the August 30, 2017 Motion except that defense counsel claims that he witnessed members of the Sheriff’s Office refuse to accept payment of bond on behalf of the Defendant.

That afternoon, the parties again appeared in courtroom 203. This Court ordered that the Defendant be allowed to post bond. See Ex. N. This Court deferred ruling on whether the Trust Act necessitated the Defendant’s release. The case was again continued to the previously set September 6, 2017 date for the State to “advise the court if a response will be filed.”

ARGUMENT:

Defendant’s Emergency Motion Should Stricken Because He Has Not Stated an Appropriate Grounds for Relief Recognized by the Code of Criminal Procedure.

The Code of Criminal Procedure sets forth the grounds for relief available to a defendant at the various stages of a criminal case. A motion not recognized by the Code of Criminal Procedure is properly denied. See People v. Ramirez, 2013 IL App. 121153.

Other than citing the Trust Act, the Defendant’s Motion does not identify a section of the Code of Criminal Procedure that would entitle him to the relief requested. Federal immigration law regarding involving administrative detainers, immigration warrants, and removal are civil, not criminal matters.

Arizona v. United States, 567 U.S. 387, 388 (2012). In this case, the Defendant, having posted bond, is not being held pursuant to his criminal case, but rather pursuant to his immigration status. The appropriate forum to address the Defendant’s continued retention in the McHenry County Jail is in civil courts.

While not having extensively researched the issue, the State can advise the Court of three civil actions that may entitle the Defendant to the relief requested, all of which are civil in nature:

1. Petition for A Writ of Habeus Corpus pursuant to 735 ILCS 5/10-104,
2. a Writ of Mandamus, or
3. a Quo Warranto Action.

Accordingly, the Court should strike the Defendant’s Emergency Motion as he has not stated an appropriate ground for relief nor has sought relief in the appropriate forum.

Defendant’s Emergency Motion Should be Stricken Because He Has Not Provided Sufficient Notice.

Neither Supreme Court Rules, the Code of Criminal Procedure, or Local Criminal Rules contemplate emergency motions that may be heard by a court without proper notice.

Pursuant to Supreme Court Rule 21, circuit courts may develop rules governing criminal cases. The 22nd Judicial Circuit has adopted such local court rules. Pursuant to local court rule 10.15:

(a) All pre-trial motions including, but not limited to, motions brought pursuant to Illinois Compiled Statutes, Chapter 725, Article 144 or Article 115-10 of the Code of Criminal Procedure shall be filed within the time fixed by the Court. In the absence of an order setting dates, all motions shall be filed and brought to the attention of the Court not less than twenty-eight (28) days before the date the case is set to commence.

(b) Time of Notice. Pursuant to rule, court order or administrative order:

1. If notice of filing is given by personal service, the notice and motion shall be delivered before 4:00 p.m. on the second day preceding the hearing of the motion.

2. If notice of filing is given by mail, the notice and motion shall be deposited in the United State’s Post Office or Post Office deposit box on the fifth day preceding the hearing of the motion, excluding Saturdays, Sundays and Holidays.

3. If notice of filing is given by facsimile transmission, the notice and motion must be transmitted not less than 48 hours preceding the hearing of the motion, excluding Saturdays, Sundays and Holidays.

As of September 4, 2017, the State has not been served with an Emergency Motion set to be heard on September 5, 2017. Accordingly, any such motion should be stricken unless and until the Defendant complies with court rules.

The Trust Act Does Not Entitle the Defendant to Release.

Even if this Court does not strike the Defendant’s Emergency Motion, the Defendant is properly being held in custody by the plain language of the Trust Act. 1As discussed, the Trust Act prohibits a State law enforcement agency from detaining and individual “solely on the basis of any immigration detainer…or [administrative warrants].”

The Sheriff’s Office is not holding the Defendant solely on the basis of administrative federal detainers or warrants. 14 U.S.C. § 4013, as amended by section 119 of Public Law 106-553, provides that “[n]otwithstanding any other provision of law…the Attorney General hereafter may enter into contracts and other agreements, of any reasonable duration, for detention or incarceration space or facilities, including related services, on any reasonable basis to enter into contracts and other agreements with local law enforcement agencies.” See Ex. O.

Pursuant to this authority, the DOJ lawfully entered into the Detention Services Intergovernmental Agreement with the County on May 6, 2014 wherein the Sheriff’s Office agreed to detain federal immigration detainees on behalf of the DOJ. The DOJ requested that the Defendant be held pursuant to this contract on September 1, 2017. Accordingly, the Defendant is not being held solely on the basis of a detainer or administrative warrant. Rather, he is being held and housed as a federal detainee by the authority of the DOJ as expressed and conveyed to the Sheriff’s Office by the terms of the May 6, 2014 contract.

Should this Court interpret the Trust Act to contemplate the release of the Defendant, it may be setting the Illinois Law in conflict with federal law and render it unconstitutional under the preemption doctrine. In particular, the Trust Act would be “standing as an obstacle to the accomplishment” and execution of the full purposes and objectives of Congress by limiting the DOJ’s statutory authority to contract with local law enforcement in Illinois to house federal detainees. See Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

The Trust Act is Unconstitutional.

The Trust Act is unconstitutional because: 1) it is preempted by federal immigration law; 2) it violates the Separation of Powers, legislative branch cannot dictate to the executive branch, of which the sheriff is a member, what laws to enforce; and 3) violates the prohibition on special legislation in that it only applies to a small number of people being held on civil detainers.
The State Deserves More Time to Research This Issue and Respond to the Defendant’s Motion.

The Trust Act, having gone into effect immediately on August 31, 2017, has not given the State time to fully understand the Act’s scope or parameters. We believe that the Trust Act as well as the Defendant’s Motion raise a number of complicated issues that require an extensive review of immigration and other federal laws, constitutional law, our responsibilities under the May 16, 2014 contract, and the Act’s legislative history. The State is, therefore, requesting two weeks to respond to the issues the Defendant has raised.

WHEREFORE and for the foregoing reasons, the State respectfully prays that this Honorable Court:

1. Grant the State’s Motion to Strike; or
2. Deny the Defendant’s Motion for Release; and/or
3. Find the Trust Act Unconstitutional; or
4. Grant the State two weeks to respond fully to the Defendant’s Motion.

Respectfully Submitted

________________________
Patrick Kenneally
Assistant State’s Attorney