A number of courts have recently called into question the validity of detainers issued by U.S. Immigration and Customs Enforcement (ICE). Most recently, on Wednesday, August 30, 2017, Chief U.S. District Court Judge Orlando L. Garcia issued an order in City of El Cenizo v. Texas. In that order, Judge Garcia considered motions filed by a number of localities in Texas seeking preliminary injunctions of Texas Senate Bill 4 (SB4), popularly known as the "Sanctuary Cities Ban". According to the author's Statement of Intent, that bill, which was signed into law by Texas Governor Greg Abbott on May 7, 2017:
[P]rohibits "sanctuary city" policies, which prohibit local law enforcement from inquiring about a person's immigration status and complying with detainer requests. These policies also often prohibit the sharing of information regarding a person's immigration status with the federal government.
Opponents of such policies argue that the state should pass legislation that prohibits cities and other government entities from the creation and enforcement of policies and ordinances that prohibit or impede the enforcement of state and federal immigration law.
S.B. 4 amends current law relating to the enforcement by campus police departments and certain local governmental entities of state and federal laws governing immigration and to related duties and liability of certain persons in the criminal justice system; provides a civil penalty; and creates a criminal offense.
While he declined to enjoin certain portions of SB4, Judge Garcia did enjoin (amongst other provisions) the portions of that bill that prevented local entities and campus police from prohibiting their officers from "assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance;" and that required "[a] law enforcement agency that has custody of a person subject to an immigration detainer request issued by [ICE] to comply with, honor, and fulfill any request made in the detainer request provided by the federal government."
With respect to detainers, as Judge Garcia notes:
The updated detainer form and warrant requirement reflect policy changes described in former DHS Secretary John Kelly's February 20, 2017, Memorandum on "Enforcement of the Immigration Laws to Serve the National Interest" and ICE Policy No. 10074.2, regarding "Issuance of Immigration Detainers by ICE Immigration Officers." As required by the updated ICE policy, the Form I-247A and accompanying administrative warrant include a description of the basis for ICE's determination of probable cause of removability, and requests that the receiving entity (1) notify DHS as early as practicable before the suspected removable immigrant is scheduled to be released from criminal custody; and (2) maintain custody of the subject for up to 48 hours beyond the time he would otherwise have been released so that DHS can assume custody of him.
Judge Garcia held that the plaintiff localities were likely to succeed their claims that "provisions of SB 4 that require local entities to fulfill all ICE detainer requests ... facially violate the Fourth Amendment."
The Fourth Amendment to the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In his decision, Judge Garcia concluded that the ICE warrant is insufficient to provide local officials with probable cause to honor ICE detainers, that local officials lack the authority "to arrest and detain for civil immigration violations", and that SB4 deprives local officials "of making an independent, particularized assessment of whether probable cause of a crime exists to support ... seizure in every case in which it applies."
As noted, ICE detainer requests include either a Warrant for Arrest of Alien or Warrant of Removal. The court in City of El Cenizo, however, does not consider that warrant to be sufficient to satisfy the Fourth Amendment. Specifically, Judge Garcia states in a footnote:
Defendants stress that, under current ICE policy, all detainer requests will be accompanied by an administrative warrant. The Court nonetheless discusses the state's warrantless arrest authority because the warrants referenced in the ICE policy, the DHS forms 1-200 and 1-205, state probable cause of removability rather than of a criminal offense, are not directed to state or local officials, and are not issued by a detached, neutral magistrate, but may be issued by any one of a broad array of ICE officers.
He also rejects the defendants' argument that "probable cause for the local jurisdiction to effect the requested seizure will be supplied by the information" in the detainer itself and in the warrant, contending that "[t]his argument conflates the distinct probable cause predicates that apply to detention by ICE and state and local police."
His reasoning rests in part on his conclusion that:
Defendants have not identified any provision of law within the INA, Texas statute, or some other legal authority that authorizes the local officials subject to SB 4 to arrest and detain for civil immigration violations, or to assess probable cause of removability.
The detainer provision of SB4, however, provides just such authority. Specifically, that law amends Chapter 2 of the Texas Code of Criminal Procedure by adding a new article, 2.251, which reads as follows:
DUTIES RELATED TO IMMIGRATION DETAINER REQUESTS.
(a) A law enforcement agency that has custody of a person subject to an immigration detainer request issued by United States Immigration and Customs Enforcement shall:
- comply with, honor, and fulfill any request made in the detainer request provided by the federal government; and
- inform the person that the person is being held pursuant to an immigration detainer request issued by United States Immigration and Customs Enforcement.
(b) A law enforcement agency is not required to perform a duty imposed by Subsection (a) with respect to a person who has provided proof that the person is a citizen of the United States or that the person has lawful immigration status in the United States, such as a Texas driver's license or similar government-issued identification.
It is difficult to think of a more effective example of legal authority than a statutory mandate. Moreover, that mandate is plainly consistent with section 287(g)(10)(B) of the INA. Section 287(g) generally allows states and their political subdivisions to enter into agreements with ICE "to receive delegated authority for immigration enforcement within their jurisdictions." Section 287(g)(10)(B) of the INA makes clear, however, that nothing in section 287(g) "shall be construed to require an agreement" thereunder "for any officer or employee of a State or political subdivision of a State ... otherwise to cooperate with the Attorney General in the ... detention ... of aliens not lawfully present in the United States." Such cooperation is exactly what Texas attempted to provide in the detainer provision of SB4.
Judge Garcia also questions local officials' ability to discern immigration status given the "complex field of immigration status determinations". First, this far overstates the complexity of immigration law. Second, logically ICE agents would be available to assist them in this effort. And third, if such local officials doubt that there is a sufficient showing of probable cause in the ICE warrant to detain an alleged alien because it is not clear that the potential detainee (1) is an alien or (2) is removable as charged, the local official can always release the alien. As noted above, article 2.251(b) of the Texas Code of Criminal Procedure, as amended by Article 2 of SB4, states:
A law enforcement agency is not required to perform a duty imposed by Subsection (a) with respect to a person who has provided proof that the person is a citizen of the United States or that the person has lawful immigration status in the United States, such as a Texas driver's license or similar government-issued identification.
This is a fairly clear provision that would provide a safe harbor for a local official who concludes that "probable cause" does not exist to support continued detention.
Interestingly, also, Judge Garcia cites to Arizona v. United States to support his conclusion that it is questionable that Texas could authorize local officials "to arrest and detain for civil immigration violations." Arizona is inapposite, however, because there the state created a "state-law penalty for conduct proscribed by federal [immigration] law" contrary to the wishes of the federal government, which sued to enjoin that law. Here, on the other hand, Texas is mandating compliance with federal commands.
Instead, Judge Garcia found that:
[I]n every case in which SB 4 prohibits a local official from declining a detainer request, it also prohibits that official from making the inquiry that state and local law enforcement are required to make under the Fourth Amendment: whether probable cause of a crime exists to support that seizure.
Again, SB 4, by mandating compliance with an ICE detainer, authorizes detention by local officials in Texas for immigration, and not just criminal violations.
Judge Garcia implicitly found that even if local officials had such authority: "[s]ince local officials are not authorized or trained to assess probable cause of removability, they are not capable of making a particularized assessment of probable cause of removability in light of the information available to them at the time of the seizure, which includes any facts tending to dissipate probable cause. " Because SB4 requires those officials to honor detainers for up to 48 hours, he found, the provisions therein requiring detention "likely violate the Fourth Amendment".
Under Judge Garcia's reasoning, it does not appear that any immigration detainer is sufficient to pass constitutional muster, outside of a jurisdiction that participates in a 287(g) program.
As noted, the court's findings reject the fact that, as set forth above, the ICE detainer would be accompanied by an "administrative warrant include[ing] a description of the basis for ICE's determination of probable cause of removability." Logically, this would be sufficient to satisfy the probable cause standard, even to an "untrained" local officials. And, as the Eighth Circuit has noted in Johnson v. Phillips, 664 F.3d 232, 238 (8th Cir. 2011), an outstanding warrant gives an officer probable cause to make an arrest, satisfying the Fourth Amendment. Because those warrants "are not issued by a detached, neutral magistrate", however, Judge Garcia bases his analysis on Texas's "warrantless arrest authority".
Judge Garcia's reasoning here is not surprising, given the fact that he recently ruled in a separate case that local officials, who had held an alien on a detainer, "were not entitled to rely upon ICE's probable cause determination" because (1) "ICE's assessment of probable cause was based on a determination that Plaintiff was likely removable, not that he had likely committed a criminal offense," and (2) "even if the probable cause requirements between County officials" and those that apply to ICE officers issuing a detainer "were interchangeable, the 'collective knowledge doctrine'" would not have applied in that case because there was no evidence of communication or cooperation "between the ICE personnel who made the probable cause determination and the County officials who processed the detainer request."
Texas is likely to appeal this decision to the Court of Appeals for the Fifth Circuit, and there are plainly grounds for appeal, as stated above. Should this decision stand, however, ICE may need to determine whether an identifiable officer could serve as a "detached, neutral magistrate" for purposes of issuing a warrant for arrest or of removal to accompany a detainer.
Now might be the best time for such a consideration, in light of the fact that the Executive Office for Immigration Review, the Justice Department agency with jurisdiction over the immigration courts, is currently seeking retired annuitant immigration judges (IJs) for intermittent employment. Such an IJ could electronically review hundreds of warrants a day for legal sufficiency, circumventing the barriers raised by Judge Garcia to detainer compliance.