Fifth Circuit Upholds Texas ICE-Detainer Mandate

By Andrew R. Arthur on March 20, 2018

In a September 27, 2017, post titled "Fifth Circuit Stays District Court Injunction on Immigration Detainers", I discussed litigation surrounding the implementation of Texas Senate Bill 4 (SB4), legislation that attempts to place limits on sanctuary jurisdictions in that state. This followed up on a September 8, 2017, post captioned "Federal Judge Calls Immigration Detainers into Question", which detailed an August 30, 2017, order from Chief U.S. District Court Judge Orlando L. Garcia in City of El Cenizo v. Texas.

In his order, Judge Garcia enjoined implementation of many of the provisions in SB4, including the implementation of new Texas Code of Criminal Procedure article 2.251(a), which had been added to the code by that legislation, and 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.

In his order, Judge Garcia held that the plaintiff localities were likely to succeed on their claims that "provisions of SB 4 that require local entities to fulfill all Immigration and Customs Enforcement (ICE) detainer requests ... facially violate the Fourth Amendment." As I noted in my September 8 post:

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."

In its initial decision in this case (the subject of my September 27 post), a panel of the Fifth Circuit stayed the district court's injunction of the implementation of new Texas Code of Criminal Procedure article 2.251(a). The State of Texas subsequently appealed the preliminary injunction, and the plaintiffs cross-appealed the district court's refusal to enjoin SB4 in its entirety. A separate panel of the Fifth Circuit issued its decision on those appeals on March 13, 2018.

The Fifth Circuit's decision contains many important findings with respect to the ICE-detainer mandate in article 2.251. As a preliminary matter, it noted:

The district court held that the ICE-detainer mandate violates the Fourth Amendment because it is not reasonable for local officials to detain persons based on probable cause of removability.

The circuit court held that to prevail, the plaintiffs had to establish that every seizure that was authorized by article 2.251 that was in violation of the Fourth Amendment, a standard they had failed to satisfy.

As the court explained the current ICE-detainer regime:

An ICE detainer is a written request to state or local officials, asking them (1) to notify the Department of Homeland Security ("DHS") as soon as practicable before an alien is released and (2) to maintain custody of the alien for up to 48 hours beyond the preexisting release date so that DHS may assume custody. As of April 2017, ICE must make this request using Form I-247A, which must be accompanied by a signed administrative warrant. Form I-247A states that DHS has determined that there is probable cause that the subject of the request is a removable alien, and ICE officers check one of four boxes on the form to indicate the basis for probable cause.

It noted that it was "undisputed that federal immigration officers may seize aliens based on an administrative warrant attesting to probable cause of removability," continuing:

Under the collective-knowledge doctrine ... the ICE officer's knowledge may be imputed to local officials even when those officials are unaware of the specific facts that establish probable cause of removability. ... Compliance with an ICE detainer thus constitutes a paradigmatic instance of the collective-knowledge doctrine, where the detainer request itself provides the required "communication between the arresting officer and an officer who has knowledge of all the necessary facts."

It then rejected the plaintiffs' arguments for why such cooperation nonetheless violates the Fourth Amendment.

Specifically, the circuit court considered the plaintiffs' argument that the probable cause requirement of the Fourth Amendment is not satisfied where "officers must unthinkingly accept an agency's conclusions without taking into account facts tending to dissipate probable cause." Plaintiffs had argued that the exception in article 2.251(b) did not "cure this defect because it forces local officers to make removal-status determinations," in violation of the Supreme Court's decision in Arizona v. United States and the Fifth Circuit's decision in Villas at Parkside Partners v. City of Farmers Branch.

The circuit court held:

The plaintiffs' argument misconstrues the relevant precedents. Neither Arizona nor Farmers Branch undermines subsection (b). Arizona denied state officers the power to unilaterally make removability determinations because "[a] decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States" and such decisions "touch on foreign relations and must be made with one voice." Likewise, Farmers Branch invalidated an ordinance requiring building inspectors to conduct their own "unlawful presence" inquiries. Both cases involved unilateral status-determinations absent federal direction. But subsection (b) operates only when there is already federal direction — namely, an ICE-detainer request — and the subsection merely limits the scope of the officer's duty to comply with that request. It remains the ICE agent who makes the underlying removability determination.

Similarly, the circuit court rejected the plantiffs' argument that article 2.251 would require officers to ignore facts negating probable cause. Specifically, it found that article 2.251(b) would apply to most cases "where facts negate probable cause: indeed, it is difficult to imagine what facts other than valid forms of identification would conclusively negate ICE's probable cause determination."

Even assuming that there were such facts, however, the circuit court accepted as reasonable the argument made by Texas and the United States (in an amicus filing) disputing plaintiffs' contentions "that local officers would be required [under article 2.251] to ignore them," as "the verbs '[c]omply with, honor, and fulfill' require cooperation — not blind obedience." The circuit court concluded "that ICE should have no interest in detaining aliens when local officials communicate that the original determination was flawed."

The court also distinguished two sister-circuit cases (Santos v. Frederick County Board of Commissioners issued by the Fourth Circuit and the Ninth Circuit's decision in Melendres v. Arpaio) cited by plaintiffs to support the proposition that the detainer mandate in article 2.251 is facially invalid. The Fifth Circuit found that in each of those cases, "there was no federal request for assistance before the" local seizure, unlike article 2.251, which is premised on such requests.

Further, the circuit court rejected the plaintiffs' argument that there was no state law that authorized local officers to seize individuals "based on probable cause of removability," finding that article 2.251(a) "itself authorizes and requires state officers to carry out federal detention requests."

Most significantly, however, the circuit court held that the district court had erred in holding that state and local officers could only arrest individuals where there was a probable cause of criminality. In support of its holding, the circuit court cited various court decisions upholding statutes allowing "seizures absent probable cause that a crime has been committed", including state statutes that authorize the seizure of the mentally ill, those who are seriously ill and in danger of hurting themselves, incapacitated persons, and juvenile runaways. With respect to this argument, the circuit court concluded: "The district court's contention is also patently at odds with immigration law and procedure; civil removal proceedings necessarily contemplate detention absent proof of criminality."

The Fifth Circuit's holding in this regard is in accordance with the Eighth Circuit's decision in United States v. Ovando-Garzo. In that case, a North Dakota state trooper had stopped a truck for speeding and determined that two of the passengers were in the United States illegally. He contacted the Border Patrol, which confirmed the illegal status of the two, and told the trooper an agent would be dispatched to take them into custody. The trooper offered to take them to the local sheriff's office, where he met the Border Patrol agent.

Ovando–Garzo moved to suppress evidence of his identity obtained during the traffic stop in a subsequent appeal of his conviction for reentry after removal in violation of section 276(a) of the Immigration and Nationality Act (INA). This motion was premised, in part, on his argument that "state and local officials 'generally have no authority to arrest aliens on the basis of possible removability which Congress has given to trained federal immigration officers,'" an argument the Eighth Circuit deemed "meritless". It held:

Although a formal, written agreement is sometimes required for a state official to perform certain functions of a federal immigration officer, no written agreement is required for a state official to cooperate with the Attorney General in identifying, apprehending, and detaining any individual unlawfully present in the United States. See [section 287(g)(10) of the INA]. Here, Trooper Pulver's acts — identifying Ovando–Garzo, communicating with the Border Patrol, and detaining Ovando–Garzo until the Border Patrol agent could take custody — were not unilateral and, thus, did not exceed the scope of his authority.

These two circuit decisions provide significant support for the proposition that state and local authorities are not barred by federal law from detaining aliens under ICE detainers. They should open the door for any state interested in adopting anti-sanctuary legislation like SB4, and undercut contrary determinations, such as Judge Garcia's, that state and local officials can arrest individuals only where they have probable cause of criminality, not removability.