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McCann v. Dart

Court of Appeals of Illinois, First District, Fifth Division

March 27, 2015

BRIAN McCANN, Plaintiff-Appellant,
v.
THOMAS J. DART, in His Official Capacity as Cook County Sheriff, Defendant-Appellee

Page 469

Appeal from the Circuit Court of Cook County. No. 13 CH 10583. Honorable Jean Prendergast Rooney, Judge Presiding.

For Plaintiff-Appellant, Christine Svenson, Svenson Law Offices, Chicago, IL; Paul J. Orfanedes, Judicial Watch, Inc., Washington, D.C.

For Defendant-Appellee, Anita Alvarez, Cook County State's Attorney, Chicago, IL (Daniel F. Gallagher, Deputy State's Attorney, Chief, Civil Actions Bureau; Kent S. Ray, and James Beligratis, Assistant State's Attorneys, of counsel).

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Gordon and Reyes concurred in the judgment and opinion.

OPINION

McBRIDE, JUSTICE.

Page 470

[¶1] Plaintiff Brian McCann appeals from the circuit court's grant of defendant Thomas Dart's motion to dismiss plaintiff's petition for mandamus and declaratory relief pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)). On appeal, plaintiff contends that: (1) the circuit court erred in dismissing his complaint for lack of standing; and (2) defendant has failed to fulfill a legal duty pursuant to several federal immigration statutes. Because we find that plaintiff's opening brief is deficient and fails to comply with Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013), we exercise our discretion to strike plaintiff's brief and dismiss his appeal.

[¶2] To fully understand the present appeal, we will first discuss the federal statutes and Cook County ordinance on which plaintiff based his petition for mandamus and declaratory relief. The pertinent federal statutes include: 8 U.S.C. § § 1226, 1226a, and 1357, and the associated regulation 8 C.F.R. § 287.7, which pertain to requests by federal immigration officials from the Immigration and Customs Enforcement Agency (ICE) to local law enforcement officers to detain suspected aliens in their custody; and 8 U.S.C. § § 1373, and 1644, which pertain to communication and the exchange of information between federal immigration officials and local law enforcement agencies about a person's immigration status. 8 U.S.C. § § 1226, 1226a, 1357, 1373, 1644 (2012); 8 C.F.R. § 287.7 (2012).

[¶3] Specifically, 8 U.S.C. § § 1226 and 1226a detail general guidelines for the arrest, detention, and release of certain aliens. 8 U.S.C. § 1357(d) provides that ICE may issue a detainer upon the request of any law enforcement official if an individual has been arrested for violating controlled substances laws and if the arresting agency has reason to believe that the individual is not lawfully present in the United States. An associated regulation, 8 C.F.R. § 287.7(a), states that the " detainer is a request that such agency advise the Department [of Homeland Security], prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible." (Emphasis added.) 8 C.F.R. § 287.7(a) (2012). Section (d) of the same regulation further provides:

" Upon a determination by the Department to issue a detainer for an alien not otherwise detained by a criminal justice

Page 471

agency, such agency shall maintain custody of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department." 8 C.F.R. § 287.7(d) (2012).

[¶4] In regard to the communications between local law enforcement agencies and the Immigration and Naturalization Service (INS), 8 ...


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