ICE and ACLU Settle Lawsuit Relating to Arrests of Aliens in Correctional Facilities

Private contractors can't perform 'inherently governmental functions'

By Dan Cadman on July 13, 2022

Within the last few days, Immigration and Customs Enforcement (ICE, the defendants) settled a lawsuit filed by alien plaintiff Gabriela Solano, who was represented in her case by the American Civil Liberties Union (ACLU). See here and here.

It gives me little pleasure to say that, for the first time in a very long while, I agree with the position of the ACLU for reasons I'll explain below. I say it gives me little pleasure because I realize that the ACLU's purpose isn't noble — this is just the latest in a long string of lawsuits filed by the ACLU whose primary purpose is to hamstring or undermine the effectiveness of any kind of immigration enforcement in the United States, whether on the border or in the interior.

The gist of the case was that Solano filed a lawsuit against ICE for using private contractors to effect civil immigration arrests within the jurisdiction of two California field offices (Los Angeles and San Francisco), including her arrest. The settlement affects not just Solano but other similarly situated aliens; within the context of the case, this means aliens incarcerated in California penal institutions and county jails for criminal violations of law that often render them deportable from the United States.

Apparently, as a matter of preserving resources, ICE had contracted with at least one private entity to process those aliens for removal proceedings as a part of their release to ICE when detainers were to be honored. (It's worth noting for the record that honoring of civil immigration detainers within the state of California has become more the exception than the rule, given its status as a sanctuary state that has enacted statutes prohibiting state and local enforcement and correctional officials from cooperating with ICE in most circumstances.)

The word “process” is a legal term of art within the context of the lawsuit. It involves the recording of biographic and biometric data about the aliens on the forms that will be needed to go forward in removal proceedings. More importantly, though, “processing” includes service of the official documents required to present the alien to the immigration court. Those documents are a Warrant for Arrest of Alien, and a Notice to Appear in Removal Proceedings. Thus, even though the alien might at the time of processing be technically within the physical custody of the California Department of Corrections or a county jail facility, service of the warrant means in a very real sense that an arrest has been effected by ICE.

And therein lies the problem. Effecting a law enforcement arrest is an “inherently governmental function”; it is not something that can be farmed out to civilians or private entities as a matter of course. This is a longstanding, and sound, legal doctrine.

The notion of “inherently governmental functions” has even been embedded in the federal regulations relating to contracts, at 48 CFR 7.503, which state in pertinent part:

7.503 Policy.

(a) Contracts shall not be used for the performance of inherently governmental functions.

(b) Agency decisions which determine whether a function is or is not an inherently governmental function may be reviewed and modified by appropriate Office of Management and Budget officials.

(c) The following is a list of examples of functions considered to be inherently governmental functions or which shall be treated as such. This list is not all inclusive:

(1) The direct conduct of criminal investigations.

(2) The control of prosecutions and performance of adjudicatory functions other than those relating to arbitration or other methods of alternative dispute resolution. [Emphasis added.]

Although arrests for non-criminal immigration violations are not specifically mentioned, innumerable court decisions have made clear that, in nearly every way, such arrests are comparable to criminal arrests and this is one of the reasons that a plethora of protections are afforded to aliens who are taken into custody by federal immigration officers, including being advised of their rights, etc.

Paragraph (d) of that same CFR goes on to say the following:

(d) The following is a list of examples of functions generally not considered to be inherently governmental functions. However, certain services and actions that are not considered to be inherently governmental functions may approach being in that category because of the nature of the function, the manner in which the contractor performs the contract, or the manner in which the Government administers contractor performance. This list is not all inclusive:


(19) Contractors providing special non-law enforcement, security activities that do not directly involve criminal investigations, such as prisoner detention or transport and non-military national security details.

By specifying “detention or transport” as not inherently governmental functions, it seems to me that the regulations are clearly ensuring that a bright line is made between such ancillary matters and the critical functions that are at the heart of law enforcement: investigation and arrest pursuant to law.

One last point: Some readers of this post may be tempted to use the “inherently governmental function” doctrine to assert that non-immigration officers, such as state or local police, are also precluded from effecting immigration arrests. That is not so. As a preliminary matter, it is important to recognize that, unlike private contractors, they are already sworn officers of the law. Thus, they can derive authority to effect immigration arrests in at least three ways: First, the state constitution or laws under which they operate may provide them that authority. Second, they are directly given the authority to effect arrests for alien smuggling violations under federal law. See 8 U.S.C. 1324(c). Third, they are also authorized to do so when officially cross-designated under 8 U.S.C. 1357(g).

Perhaps times have changed — I no longer know what legal doctrines are taught at the various academies since the shotgun marriage of immigration and customs agencies brought about by the Homeland Security Act of 2002 — but from the very beginning of my career, starting in basic training clear back in the 1970s, I and every other Border Patrol agent or immigration officer was taught that effecting a law enforcement arrest is an “inherently governmental function”; to repeat myself, it is not something that can be farmed out to civilians or private entities. There is no reason to believe that the fundamental soundness of that doctrine, or that the doctrine itself, has changed.

What I'm left wondering about, then, is the soundness of the immigration courses now being taught in those academies. Are they being given short shrift, leaving a corps of law enforcement officers who are woefully ignorant of the basics because the historical knowledge has been lost in the two decades since enactment of the Homeland Security Act?