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In re Application of Rojas

Supreme Court, Suffolk County

March 16, 2018

In the Matter of the Application of Andres Felipe Florez Rojas, Plaintiff-Petitioner, for a Declaratory Judgment Pursuant to Article 3001 of the Civil Practice Law and Rules and a judgment Pursuant to Article 78 of the Civil Practice Law and Rules,
v.
Suffolk County Sheriff's Office and VINCENT F. DeMARCO, in his official capacity as Sheriff of Suffolk County, Defendants-Respondent.

          BENJAMIN N. CARDOZO SCHOOL OF LAW YESHIVA UNIVERSITY Attorneys for Plaintiff-Petitioner

          SUFFOLK COUNTY DEPARTMENT OF LAW Attorneys for Defendants-Respondents

          HON. JOSEPH A. SANTORELLI J.S.C.

         In this hybrid CPLR Article 78 proceeding and declaratory judgment action, petitioner/plaintiff Andres Felipe Florez Rojas seeks: (1) a declaration that it violates the United States Constitution, the New York State Constitution and New York State law for respondents/defendents to detain him beyond the period authorized for his criminal proceedings for purposes of federal civil immigration enforcement; and (2) an order pursuant to CPLR 7006 annulling respondents'/defendants' decision to detain petitioner/plaintiff for purposes of federal civil immigration enforcement upon the payment of bail and directing respondents/defendants to refrain from detaining him after his payment of bail and release from custody.

         By motion dated December 26, 2017, respondents/defendants move for an order pursuant to CPLR (A)(7) dismissing the complaint and verified petition. The petitioner/plaintiff has opposed this application.

         Under Suffolk County District Court Docket 47698/2017 the petitioner/plaintiff was charged with Criminal Possession of Stolen Property in the Fourth Degree, a Class E Felony. On December 2, 2017, the petitioner/plaintiff was arraigned on a felony complaint, bail was set and he was remanded to the custody of respondents/defendants. On or about December 4, 2017, the United States Department of Homeland Security, (hereinafter DHS), filed an "Immigration Detainer-Notice of Action" against the petitioner/plaintiff. [1]

         In relevant part the document stated:

"1. DHS HAS DETERMINED THAT PROBABLE CAUSE EXITS THAT THE SUBJECT IS A REMOVABLE ALIEN. THIS DETERMINATION IS BASED ON (complete box 1 or 2).Inmate # - 736292
* * *
X Biometric confirmation of the alien's identify and a record check of Federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law; and/or
* * *
IT IS THEREFORE REQUESTED THAT YOU:
• Notify DHS as early as practicable (at least 48 hours, if possible) before the alien is released from your custody. Please notify DHS by calling X U.S. Immigration and Customs Enforcement (ICE) or - U.S. Customs and Border Protection (CBP) at 5165724403. If you cannot reach an official at the number(s) provided, please contact the Law Enforcement Support Center at (802) 872-6020.
• Maintain custody of the alien for a period NOT TO EXCEED 48 HOURS beyond the time when he/she would otherwise have been released from your custody to allow DHS to assume custody. The alien must be served with a copy of this form for the rehabilitation, parole, release, diversion, ...

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