Moreno v. Napolitano, 213 F. Supp. 3d 999

Background

Plaintiffs (Moreno and Lopez) are class representatives who were subject to ICE "immigration detainers" while in local custody; detainers requested that LEAs hold them up to 48 hours so ICE could take custody. Neither was ultimately removable.
Plaintiffs sued claiming detainers violate the Fourth, Fifth, Tenth Amendments and exceed statutory authority; the Court previously denied dismissal and certified a class under Fed. R. Civ. P. 23(b)(1) and (b)(2).
ICE updated its detainer forms over time (including forms I-247D, I-245X, I-247N) adding language about "probable cause" and changing service/detention-time phrasing; Defendants argued those changes undermine class commonality.
The core statutory framework: 8 U.S.C. § 1226(a) requires warrants for arrest while awaiting removal; 8 U.S.C. § 1357(a)(2) allows warrantless arrest only when an officer has "reason to believe" the alien "is likely to escape before a warrant can be obtained."
Defendants concede (1) detention pursuant to a detainer is a warrantless arrest and (2) ICE does not make any individualized determination that a person is "likely to escape" before issuing a detainer; they argue § 1357(a)(2) is satisfied categorically for LEA-held suspects.
The Court denied decertification as to Plaintiffs’ statutory claim under § 1357(a)(2) and granted summary judgment for Plaintiffs on that claim, holding ICE’s practice of issuing detainers without an individualized determination exceeds statutory authority; judgment voiding detainers was entered but stayed pending possible appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether class should remain certified given new detainer forms	Class still presents common questions about ICE practice and statutory violation; forms don't change core practice	New forms create materially different procedures and so destroy commonality, typicality, adequacy	Class remains certified for the statutory §1357(a)(2) claim; decertification denied as to that claim
Whether ICE may issue detainers that effectuate warrantless arrests without individualized finding that subject is "likely to escape"	Detainers exceed statutory authority because ICE makes no determination that target is likely to escape before a warrant can be obtained	ICE need not make individualized finding; any potentially removable alien in LEA custody is categorically "likely to escape" upon release	Held for Plaintiffs: ICE must make an individualized determination under §1357(a)(2); issuing detainers without such a determination exceeds statutory authority
Whether the phrase "likely to escape" is ambiguous warranting Chevron deference to ICE	Phrase has plain meaning—likely to evade immigration officers—and is not ambiguous	If ambiguous, agency interpretation should be deferred to under Chevron	Court found the phrase unambiguous in context and did not defer to ICE; Chevron argument not persuasive
Remedy and scope: whether statutory ruling resolves case and whether constitutional claims must be reached	Statutory violation voids detainers; constitutional claims unnecessary to decide	Defendants urged consideration of constitutional defenses and factual distinctions between form versions	Court declined to reach constitutional claims under judicial restraint; granted summary judgment on statutory claim and declared detainers void (stay entered)

Key Cases Cited

Cantu v. United States, 519 F.2d 494 (7th Cir. 1975) (interpreting "likely to escape" as requiring a serious, particularized flight risk)
Westover v. Reno, 202 F.3d 475 (1st Cir. 2000) (no evidence of likelihood to escape for a person in her home)
Mountain High Knitting, Inc. v. Reno, 51 F.3d 216 (9th Cir. 1995) (no warrantless-arrest justification where aliens in a factory were not likely to escape)
Maryland v. Pringle, 540 U.S. 366 (U.S. 2003) (probable cause requires particularized inquiry as to the person)
Ybarra v. Illinois, 444 U.S. 85 (U.S. 1979) (probable cause must be particularized to the person searched or seized)
Illinois v. Wardlow, 528 U.S. 119 (U.S. 2000) (presence in high-crime area alone insufficient for individualized suspicion)
Huff v. Reichert, 744 F.3d 999 (7th Cir. 2014) (rejecting profile-based suspicion absent individualized facts)
United States v. Marrocco, 578 F.3d 627 (7th Cir. 2009) (suspicion cannot rest solely on a suspect’s fit to a profile)
United States v. Walden, 146 F.3d 487 (7th Cir. 1998) (reasonable suspicion cannot be based solely on prior convictions)
Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015) (detention pursuant to an immigration detainer is an arrest requiring probable cause)
Araujo v. United States, 301 F. Supp. 2d 1095 (N.D. Cal. 2004) (government failed to show subject was likely to flee before warrant could be obtained)