On Friday, September 11, the Ninth Circuit of the U.S. Court of Appeals issued an opinion on review from a district court order that had permanently enjoined certain immigration detainers issued in the jurisdiction of the U.S. District Court for the Central District of California, reversing and remanding both as well as a summary judgment determination in favor of the government on a third claim. The dissent would have gone further, contending that injunctive relief of the detainer issue was never appropriate to begin with. That sweeping order was a mixed bag for both the government and the three classes of plaintiffs who had brought the cases.
The three certified classes (more or less) included current and future individuals who are subject to an immigration detainer issued by an ICE agent in the Central District of California (which, as explained below, is broader than it sounds), with the exception of aliens with final orders of removal or who are in removal proceedings.
To set the scene for this case, in 2008, DHS launched the Secure Communities program, using an information-sharing partnership between it and the FBI, to identify potentially removable aliens who have been booked by a federal, state, or local law-enforcement agency (LEA). Thereunder, when criminal suspects are booked, the LEA sends their fingerprints to the FBI, where they are run against two separate databases: the Integrated Automatic Fingerprint Identification System (IAFIS) and the Automated Biometric Identification System (IDENT).
IDENT, which contains more than 237 million "unique identities", assigns a fingerprint identification number (FIN) to the fingerprints of each individual identity. My fingerprints are in IDENT because of my past government employment and my application to CBP's Trusted Traveler programs.
When fingerprints are matched in IDENT, the FBI sends an Immigrant Alien Query (IAQ) to the Law Enforcement Support Center (LESC) at ICE. LESC then processes the IAQs within the Alien Criminal Response Information Management System (ACRIMe) Module. LESC uses the module to perform database searches and send the results back to the field, including to ICE's Pacific Enforcement Response Center (PERC). Among the conclusions that LESC may reach is that a criminal suspect in custody of an LEA is an alien.
PERC, in Laguna Nigel, Calif. (in the Central District), "manage[s] the high volume of actionable criminal leads requiring immediate enforcement action", and issues detainers for suspected aliens in the custody of federal, state, and local LEAs in 42 states and two territories.
The system does not always work seamlessly, however.
In December 2012, a U.S. citizen by the name of Gerardo Gonzalez was arrested by the Los Angeles Police Department (LAPD) on state criminal charges. An ICE agent ran database checks on him, and came across an entry in the Los Angeles County Consolidated Criminal History System that erroneously stated that he had been born in Mexico (an LAPD officer had incorrectly written that fact on his booking sheet).
The agent (logically) could not find any proof that Gonzalez had entered legally. So ICE sent the Los Angeles Sheriff's Department (LASD) a detainer for him on December 31, 2012, asking LASD to detain Gonzalez for up to an additional five days after he would otherwise be released by the state.
In May 2013, when his parole hold expired, Gonzalez became eligible for release on $95,000 bond. His girlfriend went to a bondsman, who told her about the detainer (which, at the time, it was LASD's policy to comply with).
Instead of posting bail, Gonzalez filed the lawsuit at issue, raising claims under the Fourth Amendment, the Fifth Amendment, and statute opposing his detention. ICE lifted the detainer shortly thereafter, but the case proceeded.
The Fourth Amendment is at particular issue in this case. Pursuant to the Fourth Amendment, arrests require probable cause that the individual has committed a crime, or as here, is an alien removable from the United States. The plaintiffs' argument is, essentially, that such a detainer constitutes an unlawful seizure without probable cause or lawful authority, and further that no probable cause determination is made by a neutral and detached magistrate promptly after that seizure (the latter argument referred to as "the Gerstein claim" after the Supreme Court case upon which it is premised).
The district court certified two relevant classes, and issued two permanent injunctions. The "State Authority Injunction" prevented DHS from issuing detainers from the Central District (that is, PERC) to LEAs in states where state law does not allow state and local LEAs to make civil arrests on the basis of immigration detainers.
The "Database Injunction" prevents DHS from issuing detainers on class members solely based on searches of electronic databases to make probable cause determinations of removability.
The district court granted the government summary judgment on the Gerstein claim, finding that Gerstein and its progeny arose in the criminal — not the civil immigration — context, and therefore made no determination on the third, "Judicial Determination", class.
The government argued before the circuit court that section 242(f)(1) of the Immigration and Nationality Act (INA) precludes such class-wide injunctive relief for the detainer claims.
Section 242 of the INA, generally, limits judicial review of certain immigration determinations. Section 242(f)(1) of the INA, in particular, states:
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter ... other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. [Emphasis added.]
"Part IV" of title two of the INA, referenced above, relates to the "Inspection, Apprehension, Examination, Exclusion, and Removal" provisions in sections 231 through 244 of the INA, none of which reference detainers. The circuit court, dismissing the government's argument, concluded that the detainer authority, on the other hand, comes from section 287(d) of the INA, which states:
In the case of an alien who is arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled substances, if the official (or another official)-
(1) has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States,
(2) expeditiously informs an appropriate officer or employee of the Service authorized and designated by the Attorney General of the arrest and of facts concerning the status of the alien, and
(3) requests the Service to determine promptly whether or not to issue a detainer to detain the alien,
the officer or employee of the Service shall promptly determine whether or not to issue such a detainer. If such a detainer is issued and the alien is not otherwise detained by Federal, State, or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.
Circuit Judge Bridget S. Bade, in dissent, concluded that there were two flaws in the majority's reasoning, and the underlying class-wide injunctions themselves.
First, she asserted that section 287(d) of the INA is not the entire source of ICE's detainer authority, and that, in fact, that section necessarily presumes such authority to exist independently, pursuant to its terms. Put overly simply, an LEA could not request that ICE issue a detainer unless it already had that authority (the majority admits that Congress codified the provision in question in 1986, while there are references to detainers in case law going back to the 1940s).
Second, she noted that section 242(f)(1) of the INA prohibits class-wide injunctions that "enjoin or restrain the operation" of the authorities in part IV, title two of the INA, including ICE's ability to take suspected removable aliens into its custody, and specifically by issuing detainers.
Turning back to the majority's decision, the court made short work of the state authority injunction, finding that state-law restrictions on the LEAs therein to enforce federal civil immigration law have no effect on whether ICE violates the Fourth Amendment in issuing immigration detainers. Simply, it concluded that "the constitutionality of a warrantless arrest under the Fourth Amendment does not depend on whether state law authorizes state or local officers to make the arrest, but on whether there is probable cause."
Accordingly, it reversed and vacated the state authority injunction.
The Ninth Circuit similarly concluded that it had to reverse, vacate, and remand the database injunction because of three errors that the district court had made.
The court below had found that the databases on which ICE relies in issuing detainers did "not provide affirmative indicia of removability to satisfy probable cause" and that those databases "and the information stored therein, contain serious errors".
The circuit noted, however, that the district court had failed to consider the reliability of "all the databases on which ICE relies." Specifically, the (rather extended) trial in this case took place in May 2019, but the district court looked back to December 2017, at which point ICE relied on 16 databases. The lower court's reliability findings addressed the reliability of only six of those databases, however.
The Ninth Circuit held that the district court erred in basing its determination that those databases were unreliable, in part, on the fact that those databases were not intended to provide probable cause of removability. The circuit held that this was a misinterpretation of precedent and that, on the contrary, a database should not be considered unreliable for purposes of a probable cause determination unless that database expressly warns against reliance on it.
Finally, the circuit court held that the district court failed to find or even assess whether ICE's determinations of probable cause based on database searches resulted in systemic errors in those determinations. It held:
Thus, to find for Plaintiffs on this claim, it was not enough for the district court to identify errors in individual databases on which ICE relies. Instead, the district court had to make findings about and explain how this system of databases results in "unreliable" probable cause determinations.
The circuit court consequently reversed, vacated, and remanded the database injunction, as well.
The decision, as noted, cut both ways. On the Gerstein claim (brought by a class of aliens detained for 48 hours or more), the circuit court held that the district had erred in granting summary judgment for the government.
In essence, the Supreme Court held in Gerstein v. Pugh that state law procedures, which allowed a criminal defendant who had been arrested without a warrant and charged by a prosecutor to be held without a probable cause determination, violated the Fourth Amendment. Specifically, the justices held that the Fourth Amendment required a neutral and detached magistrate ("independent of police and prosecution") to promptly (later defined as within 48 hours of arrest) make a probable cause determination whenever possible.
The circuit court concluded that the district court had erred in finding that the Gerstein standards only applied to criminal proceedings and did not apply to civil immigration proceedings. That said, the Ninth Circuit did not find that this probable cause determination had to be made by an Article III judge, and left open the possibility that the issuance of an administrative warrant along with an immigration detainer (which has been ICE's practice since 2017) may satisfy Gerstein.
Accordingly, the circuit court reversed and remanded on this point, as well.
Needless to say, immigration detainers are a hot-button issue (and the refusal to comply with them is a key element of many sanctuary policies). And the Secure Communities program, which automated the issuance of immigration detainers, has greatly expanded ICE's ability to identify criminal aliens: The circuit court noted that ICE issued approximately 600 detainers per month in FY 2005, a number that jumped to 26,000 per month by the end of FY 2011.
Given the findings of the majority (and Judge Bade's well-reasoned dissent), this case has a long way to go before it reaches the Supreme Court. In light of the stakes, and assuming a second Trump administration, these issues will likely not be settled until it gets there.