Case Information
*1 BRIDGET S. BADE, Circuit Judges. *2 Opinion by Judge Milan D. Smith Jr.; Dissent by Judge Bade
SUMMARY [**]
Immigration
In a class action in which the district court issued two permanent injunctions enjoining the issuance of certain immigration detainers in light of Fourth Amendment challenges, the panel: (1) affirmed the district court’s certification of a subclass, (2) reversed and vacated one injunction, (3) reversed and vacated the other injunction, and remanded for the district court to reconsider the claim related to that injunction, and (4) reversed and vacated summary judgment for the Government on a claim related to another subclass, and remanded for the district court to reconsider that claim.
Gerardo Gonzalez is a citizen of the United States who has never been removable. After he was arrested on state law criminal charges, however, an Immigration and Customs Enforcement (ICE) agent ran his name through electronic databases and determined that he was removable. The [**] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. officer issued an immigration detainer, a form by which the Department of Homeland Security (DHS) requests, in relevant part, that a federal, state, or local law enforcement agency (LEA) temporarily detain an alien in that agency’s custody “for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by [DHS].” 8 C.F.R. § 287.7. Gonzalez represents three certified classes that include all current and future individuals who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, excluding individuals with final orders of removal or who are subject to ongoing removal proceedings. The Probable Cause Subclass is further limited to persons where the detainer was issued solely on the basis of electronic database checks. The district court entered two injunctions with respect to the Probable Cause Subclass: the State Authority Injunction and *3 the Database Injunction. The district court also granted summary judgment to the Government on a claim brought by the Judicial Determination Class. A motions panel of this court stayed the State Authority Injunction and denied the request to stay the Database Injunction.
First, the panel held that Gonzalez had Article III standing to seek prospective injunctive relief, concluding that he faced an ongoing and prospective detention injury when he commenced suit. The panel also concluded that the Government’s cancellation of the detainer within hours of Gonzalez bringing suit did not moot his claims, citing the “inherently transitory” exception to mootness.
Second, the panel affirmed the certification of the Probable Cause Subclass with Gonzalez as the class representative. The panel concluded that the subclass satisfied the commonality requirement, explaining that the challenged policy of issuing detainers solely on the basis of electronic database checks is the “glue” that holds the class together. The panel also concluded that the subclass satisfied the typicality requirement. The panel rejected the Government’s contention that Gonzalez, as a U.S. citizen, is atypical of noncitizen class members over whose claims the district court lacked subject matter jurisdiction under 8 U.S.C. § 1252(b)(9), which limits review of claims arising from removal proceedings. Assuming the relevance of jurisdiction over the unnamed noncitizen class members, the panel concluded that § 1252(b)(9) does not bar jurisdiction over the claims here because the claims challenge the legality of detention and are independent of the removal process. The panel also concluded that a determination about the lawfulness of the challenged policy under the Fourth Amendment and corresponding relief would provide relief to the entire class.
Third, the panel held that injunctive relief in this case is not barred by 8 U.S.C. § 1252(f)(1), which provides that “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, as amended . . . .” The panel explained that § 1252(f)(1) does not bar injunctive relief for the claims in this case because the only provision of the Immigration and Nationality Act (INA) whose text even refers to immigration detainers, 8 U.S.C. § 1357(d), is not located in “Part IV” and therefore is not among the provisions that § 1252(f)(1) encompasses. The panel also rejected the Government’s argument that its *4 detainer authority is implied by provisions covered by § 1252(f)(1), explaining that it must assume that Congress acted intentionally, and that the detainers here do not directly implicate the authority of the provisions cited by the Government.
Fourth, the panel reversed and vacated the State Authority Injunction, which enjoins the Government from issuing detainers from the Central District to LEAs in states that lack state law permitting state and local LEAs to make civil immigration arrests based on civil immigration detainers. The panel explained that the presence or absence of probable cause determines whether the Government violates the Fourth Amendment when issuing a detainer, not state law restrictions. In so holding, the panel underscored that it did not decide here whether immigration detainers might violate principles of federalism or preemption, noting that Plaintiffs had waived such claims.
Fifth, the panel reversed and vacated the Database Injunction, which enjoins the Government from issuing detainers to class members based solely on searches of electronic databases to make probable cause determinations of removability. The panel concluded that three errors required reversal: (1) the district court’s incomplete set of reliability findings concerning the databases at issue; (2) the district court’s legal error in concluding that the databases are unreliable because no database was intended to show probable cause of removability; and (3) the district court’s failure to address whether there was systemic error in ICE’s probable cause determinations based on searches of the databases. The panel remanded for the district court to reconsider the claim.
Finally, the panel reversed the summary judgment for the Government on Plaintiffs’ claim pursuant to Gerstein v. Pugh , 420 U.S. 103 (1975), in which the Supreme Court explained that the Fourth Amendment requires that probable *5 6 G ONZALEZ V . USICE cause be timely decided by a neutral and detached magistrate whenever possible. The Gerstein claim was brought by the Judicial Determination Class, which was defined, in relevant part, to include those individuals detained pursuant to a detainer for longer than 48 hours. Explaining that the district court erred in concluding that Gerstein does not apply in the civil immigration context, the panel concluded that, because the Fourth Amendment requires probable cause to seize or detain an individual for a civil immigration offense, it follows that the Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate to justify continued detention pursuant to an immigration detainer. Therefore, the court remanded for the district court to apply the correct legal standard. Dissenting, Judge Bade wrote that Congress enacted a clear jurisdictional bar to injunctive relief in § 1252(f)(1) and that the majority erred in holding that § 1252(f)(1) does not bar injunctive relief in this case. Judge Bade found the majority’s approach flawed for two reasons: the majority (1) ignored the plain language of the statute, and (2) erroneously concluded that § 1357(d) is the sole source of ICE’s authority to issue detainers. Judge Bade wrote that the majority’s approach opens the door to sweeping challenges to basic tools of immigration enforcement.
COUNSEL
Erez Reuveni (argued), Assistant Director; Francesca Genova and Archith Ramkumar, Trial Attorneys; Lauren C. Bingham, Senior Litigation Counsel; William C. Peachey, Director, District Court Section; Scott G. Stewart, Deputy Assistant Attorney General; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Objector-Appellant.
Jennifer Pasquarella (argued), Jessica Karp Bansal (argued), and Zoe McKinney, ACLU Foundation of Southern California, Los Angeles, California; Barrett S. Litt and Lindsay B. Battles, Kaye McLane Bednarski & Litt, Pasadena, California; Spencer E. Amdur and Cody Wofsy, ACLU Foundation Immigrants’ Rights Project, San *6 Francisco, California; Omar C. Jadwat, ACLU Foundation Immigrants’ Rights Project, New York, New York; Mark M. Fleming and Ruben Loyo, National Immigrant Justice Center, Chicago, Illinois; for Plaintiffs-Appellees/Cross- Appellants.
Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C., for Amicus Curiae Immigration Reform Law Institute.
Saira Hussain and Jennifer Lynch, Electronic Frontier Foundation, San Francisco, California, for Amicus Curiae Electronic Frontier Foundation.
Brook Dooley and Andrew S. Bruns, Keker Van Nest Peters LLP, San Francisco, California; Ilya Shapiro, Cato Institute, Washington, D.C.; for Amicus Curiae Cato Institute. Susan M. Krumplitsch, DLA Piper LLP (US), East Palo Alto, California; Alexis Burgess, DLA Piper LLP (US), Los Angeles, California; for Amici Curiae National Immigration Project of the National Lawyers Guild; Immigrant Legal Resource Center; University Of Nevada, Las Vegas Immigration Clinic; National Association of Criminal Defense Lawyers; Washington Defender Association; Brooklyn Defender Services; Bronx Defenders; and Immigrant Defense Project.
Anne Lai, University of California, Irvine School of Law, Irvine, California, for Amici Curiae Law and History Professors.
Michael Shipley, Jonathan Faria, and Eric Sefton, Kirkland Ellis LLP, Los Angeles, California; Katherine Evans, Christine Mullen, Zachary Pollack, and Amanda Ng, Duke Immigrant Rights Clinic, Duke University School of Law; for Amici Curiae Organizations That Represent Individuals Subject to Civil Arrest.
OPINION
M. SMITH, Circuit Judge:
Gerardo Gonzalez is a United States citizen. He has never been removable from the United States. The United States Immigration and Customs Enforcement (ICE), *7 however, came to a different conclusion in December 2012. After Gonzalez was booked on state law criminal charges by the Los Angeles Police Department (LAPD), an ICE agent ran his name through electronic databases, an automated procedure that ICE uses to determine whether an individual is a removable noncitizen. Because one database flagged Gonzalez’s birthplace as being in Mexico, and the agent could not find records showing that Gonzalez had lawfully entered the United States, the agent determined that Gonzalez was removable from the United States. ICE issued an immigration detainer, requesting that the Los Angeles Sheriff’s Department (LASD) detain Gonzalez for up to an additional five days in the Los Angeles County Jail after when he was entitled to release from custody on state criminal charges so that ICE could take him into its custody. While the detainer remained pending, Gonzalez brought this suit against the Government , raising Fourth Amendment, Fifth Amendment, and statutory claims to challenge the legality of the detainer.
Gonzalez represents three certified classes which are defined to include, in relevant part, all current and future individuals who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, excluding individuals with final orders of removal or who are subject to ongoing removal proceedings. The district court entered a judgment and two permanent injunctions in favor of Gonzalez and the Probable Cause Subclass on Fourth Amendment claims following a seven- day bench trial. The State Authority Injunction enjoins the Government from issuing detainers from the Central District to law enforcement agencies (LEAs) in states that lack state law permitting state and local LEAs to make civil immigration arrests based on civil immigration detainers. The Database Injunction enjoins the Government from issuing detainers to class members based solely on searches of electronic databases to make probable cause determinations of removability. The Government appeals the injunctions, and Plaintiffs cross appeal a summary judgment ruling in the Government’s favor.
We resolve several issues in this opinion. First , we hold that Gonzalez had Article III standing to seek prospective injunctive relief when he commenced suit. The We refer to the Defendants as “the Government.” An uncapitalized reference to the “government” should not be construed as a specific reference to the Defendants.
10
G ONZALEZ V . USICE
Government’s cancellation of the detainer against him does
not alter that conclusion.
Second
, we hold that the district
court did not abuse its discretion in certifying the Probable
Cause Subclass pursuant to Rule 23(b)(2) with Gonzalez as
the class representative.
Third
, we hold that 8 U.S.C.
§ 1252(f)(1) does not bar injunctive relief for the claims in
this case because the only provision of the Immigration and
Nationality Act (INA) whose text even refers to immigration
detainers is not among the provisions that § 1252(f)(1)
encompasses.
Fourth
, we reverse and vacate the State
Authority Injunction because the presence or absence of
probable cause determines whether the Government violates
the Fourth Amendment when issuing a detainer, not state law
restrictions. In so holding, we underscore that we do not
decide here whether immigration detainers might violate
principles of federalism or preemption.
Fifth
, we reverse
and vacate the Database Injunction because it is premised on
legal error and lacks critical factual findings. Notably, the
district court failed to assess error in the system of databases
on which ICE relies to make probable cause determinations
of removability.
Finally
, we reverse the summary judgment
for the Government on Plaintiffs’ claim pursuant to
Gerstein
v. Pugh
,
*9 FACTUAL AND PROCEDURAL BACKGROUND I. The Use of Immigration Detainers
References to immigration detainers and immigration
holds on persons in state or federal criminal custody can be
found as early as the 1940s.
See Chung Young Chew v. Boyd
309 F.2d 857, 865 (9th Cir. 1962);
Slavik v. Miller
, 89 F.
Supp. 575, 576 (W.D. Pa. 1950),
aff’d
,
Congress, however, first codified the authority to issue immigration detainers in 1986 as a provision of the INA. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207–48, § 1751(d) (1986) (codified at 8 U.S.C. § 1357(d)). Section 1357(d) authorizes the issuance of detainers to federal, state, or local LEAs for individuals suspected of being aliens and who are arrested for violating any law relating to a controlled substance offense. The provision Section 1357(d), titled “detainer of aliens for violation of controlled substances laws,” provides in full that:
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 does not require that such an LEA actually detain an individual.
Although § 1357 is the only statutory provision that refers to immigration detainers and concerns only suspected aliens who are arrested for a controlled substance offense, the Department of Homeland Security (DHS) and ICE, one of its component agencies, use immigration detainers to enforce federal immigration law more generally. See 8 C.F.R. § 287.7 (titled “detainer provisions under section 287(d)(3) of the Act”). Pursuant to § 287.7, a detainer is a form by which DHS requests, in relevant part, that a federal, state, or local LEA temporarily detain an alien in that agency’s custody “for a period not to exceed 48 hours, *10 excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by [DHS].” Id. § 287.7(d). 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.
8 U.S.C. § 1357(d). Form I-247A is the current immigration detainer form. Id. § 287.7(a). A detainer is not a warrant of any kind.
In 2008, DHS launched the Secure Communities program, which automated the issuance of immigration detainers. The program links DHS databases with the FBI’s nationwide fingerprint database, which receives fingerprints from state and local LEAs after bookings. All persons arrested in the United States by a LEA have their fingerprints and associated personal information automatically checked against DHS databases for immigration purposes. The issuance of detainers increased exponentially following automation. Whereas ICE issued roughly 600 detainers per month in FY 2005, monthly detainers exceeded 26,000 by the end of FY 2011.
Until December 2012, ICE issued detainers based only on the initiation of an investigation into whether an individual was removable. In 2017, ICE changed its detainer policy in response to litigation. Under its current policy, ICE issues a detainer in the case of an individual arrested for a criminal offense when “the officer has probable cause to believe that the subject is an alien who is removable from the United States.” Under the policy, a signed administrative arrest warrant issued pursuant to 8 U.S.C. §§ 1226 or 1231(a)—INA provisions concerning the Attorney A publicly available version of Form I-247A is available here: U.S. D EP ’ T OF H OMELAND S EC ., U.S. Immigration & Customs Enf’t , Form I- 247A, https://www.ice.gov/sites/default/files/documents/Document/201 7/I-247A.pdf (last visited September 2, 2020). See U.S. Immigration & Customs Enf’t , Policy No. 10074.2:
Issuance of Immigration Detainers by ICE Immigration Officers , available at: https://www.ice.gov/sites/default/files/documents /Document/2017/10074-2.pdf (last visited September 2, 2020). General’s authority to perform arrests by warrant and detain certain aliens—must now accompany a detainer. This policy is not reflected in the detainer regulation. See 8 C.F.R. § 287.7.
Although in issuing an immigration detainer, ICE premises a probable cause determination of removability on any one of four grounds, this case concerns one procedure in particular: ICE’s use of biometric information to confirm an individual’s identity and a search of electronic databases to determine whether the individual lacks lawful immigration status or has such status but is removable.
II. The Issuance of Immigration Detainers from the
Central District
The immigration detainers at issue in this case are primarily lodged by ICE agents at the Pacific Enforcement Response Center (PERC), located in Laguna Niguel, California. PERC issues detainers 24 hours a day for persons in federal, state, or local LEA custody in the Central District, and issues detainers after hours for individuals in such custody in some forty-two states and two U.S. territories. To issue these detainers, law enforcement specialists at the Law Enforcement Support Center (LESC) and analysts at PERC search multiple electronic databases to find “affirmative evidence of removability.” PERC agents do not investigate beyond database checks.
This process commences when a law enforcement officer arrests an individual. The individual’s fingerprints are automatically sent to the FBI and run against two databases, the Integrated Automatic Fingerprint Identification System (IAFS) and the Automated Biometric Identification System (IDENT). IDENT assigns a Fingerprint Identification Number (FIN) to each individual’s
G ONZALEZ V . USICE 15 fingerprints. IDENT contains fingerprint data for certain U.S. citizens, including those who the FBI believes belong in the system, those who voluntarily enroll in certain trusted traveler programs, those who have applied to naturalize as U.S. citizens, and those who have filed applications for certificates of citizenship. IDENT contains over 237 million unique identities. IDENT captures all biometric and biographical information on an individual regardless of typographical errors. IDENT is a very accurate source of biometric matching.
If there is a fingerprint match in IDENT, an Immigrant Alien Query (IAQ) is automatically generated and sent to LESC. The Alien Criminal Response Information Management System (ACRIMe) automatically generates an Immigrant Alien Response (IAR), which PERC receives. To generate the IAR, ACRIMe automatically searches the NCIC (National Crime Information Center), NLETS (National Law Enforcement Telecommunications System), CIS (Central Index System), CLAIMS 3, CLAIMS 4, EID, IDENT, ADIS (Arrival and Departure System), SEVIS (Student and Exchange Visitor Information System), and EOIR (Executive Office for Immigration Review) databases to match the FIN to any other encounter with that individual. The IAR contains basic biographical information and criminal history as well as a short statement about immigration status and removability. An analyst, who is a federal contractor, conducts a first level review of the IAR and makes a recommendation to an ICE officer about whether a detainer should issue.
Although the analyst has the discretion to run an independent database check, which is done in “complex cases,” we are unaware of This system has resulted in the issuance of thousands of detainers. For example, the Government estimates that it issued nearly 50,000 detainers from PERC in FY 2019. Trial evidence nevertheless indicated that ICE does not take into custody up to 80% of the individuals for whom PERC issues *13 immigration detainers.
III. The District Court Proceedings
Gonzalez commenced this suit as a putative class action on June 19, 2013 to challenge the outstanding immigration detainer against him, which prevented him from posting bail from custody on state criminal charges, and which threatened an additional period of detention by LASD upon his release from that custody. Within hours after he commenced suit, the Government cancelled the detainer. Simon Chinivizyan, a native of Uzbekistan and a U.S. citizen, became a plaintiff upon the filing of the First Amended Complaint. When he filed suit, he was detained in the Los Angeles County Jail solely pursuant to the detainer.
The case proceeded on the Third Amended Complaint (TAC), filed in August 2014. [6] In relevant part, Plaintiffs raised individual and class claims that the Government violates the Fourth Amendment (1) because a detainer is an unlawful seizure without probable cause or lawful authority, any record evidence concerning the extent to which PERC has “complex cases” for which its analysts perform independent database checks. In 2015, the district court consolidated this case with Roy v. County of Los Angeles , No. 12-cv-09012-BRO-FFM, Dkt. No. 91 (C.D. Cal. July 28, 2015). For this reason, several citations herein bear the Roy case caption. After the parties cross appealed, the district court de- consolidated the cases. Id. Dkt. No. 590 (C.D. Cal. Mar. 18, 2020). and (2) the Government fails to provide a prompt probable cause determination by a neutral and detached magistrate (the Gerstein claim). Plaintiffs sought declaratory and injunctive relief.
The district court certified two classes pursuant to Rule
23(b)(2) that are relevant here, the Judicial Determination
Class and Probable Cause Subclass.
Roy v. County of Los
Angeles
, Nos. CV 12-09012-BRO(FFMx), CV 13-04416-
BRO(FFMx),
Plaintiffs later moved for summary judgment on the
*14
Judicial Determination Class’s
Gerstein
claim. The district
court
sua sponte
granted summary judgment for the
Government.
Roy v. County of Los Angeles
, Nos. CV 12-
09012-BRO(FFMx), CV 13-04416-BRO(FFMx), 2017 WL
2559616 (C.D. Cal. June 12, 2017). The court determined
that
Gerstein
, including as elaborated in
County of Riverside
v. McLaughlin
,
cause determinations to executive officers, rather than an immigration judge, magistrate judge, or federal judge. Id. at *5–10. Thus, the claims of the Judicial Determination Class did not proceed beyond summary judgment.
Shortly before the May 2019 bench trial, the district court amended the Probable Cause Subclass definition as follows:
all current and future persons who are subject to an immigration detainer issued by an ICE agent located in the Central District [ ], where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject to ongoing removal proceedings and the detainer was issued solely on the basis of electronic database checks.
The court identified the class claims for trial as whether (1) the Government violates the Fourth Amendment by issuing immigration detainers to state and local LEAs in states that do not authorize such LEAs to enforce civil immigration law (the State Authority Claim) and (2) whether the databases that ICE uses to issue immigration detainers from the Central District are unreliable sources of information for probable cause determinations (the Database Claim).
Following trial, the court issued findings of fact and
conclusions of law.
Gonzalez v. Immigration & Customs
*15
Enf’t
,
The Government timely appealed, sought an emergency stay of the injunctions, and requested that we expedite its appeal. A motions panel of our court stayed the State Authority Injunction, denied the request to stay the Database Injunction, and expedited the appeal. Plaintiffs timely cross appealed.
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction over the final judgment pursuant to
28 U.S.C. § 1291. We also have jurisdiction over previously
nonfinal orders that have merged with the judgment,
including the summary judgment and class certification
orders.
Hall v. City of Los Angeles
,
“We review for abuse of discretion the district court’s
class certification rulings[.]”
Senne v. Kan. City Royals
Baseball Corp
., 934 F.3d 918, 926 (9th Cir. 2019). “A
district court abuses its discretion where it commits an error
of law, relies on an improper factor, omits a substantial
factor, or engages in a clear error of judgment in weighing
the correct mix of factors.”
Id.
(citation omitted). We
review the district court’s standing determinations and
summary judgment rulings de novo.
City of Sausalito v.
O’Neill
, 386 F.3d 1186, 1196–97 (9th Cir. 2004). We
review the district court’s factual findings following a bench
*16
20
G ONZALEZ V . USICE
trial for clear error and its legal conclusions de novo.
Fed.
Trade Comm’n v. Garvey
,
“We review a district court’s decision to grant a permanent injunction for an abuse of discretion; the factual findings underpinning the award for clear error; and the rulings of law relied upon by the district court in awarding injunctive relief de novo.” In re Nat’l Collegiate Athletic Ass’n Athletic Grant-In-Aid Cap Antitrust Litig ., 958 F.3d 1239, 1253 (9th Cir. 2020) (citation, internal quotation marks, and alteration omitted).
ANALYSIS
I. Gonzalez’s Standing for Prospective Injunctive
Relief
The Government first argues that Gonzalez lacked
standing to seek prospective injunctive relief, and thus could
not represent the Probable Cause Subclass on whose behalf
the district court issued the State Authority and Database
Injunctions. This is a “threshold issue” concerning an
“essential and unchanging part of the case-or-controversy
requirement of Article III.”
Horne v. Flores
,
A. Article III Standing
“[A]s in all standing inquiries, the critical question is
whether [the plaintiff] has ‘alleged such a personal stake in
*17
the outcome of the controversy as to warrant
his
invocation
of federal-court jurisdiction.’”
Horne
, 557 U.S. at 445
(quoting
Summers v. Earth Island Inst
.,
The parties’ arguments concern Gonzalez’s standing to
seek prospective injunctive relief based on the pleadings,
and thus that is our focus.
See United States v. Sineneng-
Smith
, 140 S. Ct. 1575, 1579 (2020). “[W]hen a plaintiff
files a complaint in federal court and then voluntarily
amends the complaint, courts look to the amended complaint
to determine jurisdiction.”
Rockwell Int’l Corp. v. United
States
,
We conclude that the TAC shows that Gonzalez had standing to seek prospective injunctive relief when he *18 commenced suit, and thus he could represent the class on whose behalf the district court entered the injunctions at issue here.
1. Injury
We turn first to gravamen of the parties’ dispute: whether
Gonzalez suffered an injury sufficient to confer standing.
Although a past injury does not provide standing to seek
prospective injunctive relief “[a]bsent a sufficient likelihood
that [the plaintiff] will again be wronged in a similar way,”
City of Los Angeles v. Lyons
,
The operative TAC recounts that Gonzalez came into LASD custody on December 27, 2012. On December 31, 2012, ICE issued the immigration detainer against him. Although the detainer had no effect on Gonzalez’s custody when lodged due to a then-applicable parole hold, Gonzalez became eligible for release on bail from LASD custody on state criminal charges in May 2013 when the hold expired. He attempted to post bail with the assistance of his girlfriend, who went to a bondsman. The bondsman informed her that Gonzalez was subject to an immigration detainer. The detainer requested that LASD keep him in custody for up to five additional days after his release from custody on state criminal charges. The detainer, however, prevented him from posting bail. Even if he posted the $95,000 bail as he had intended to do, Gonzalez would remain in custody. Indeed, it was LASD policy to comply with all ICE detainers. Gonzalez did not post bail, but instead brought this suit.
We have explained that “[r]emaining confined in jail
when one should otherwise be free is an Article III injury
plain and simple[.]”
Mendia v. Garcia
,
With respect to the ongoing injury, the Government argues that Gonzalez’s injury was “self-inflicted” because he chose to remain in state custody by not posting the $95,000 bail. The Government’s argument correctly observes that we have rejected a plaintiff’s choice to remain in state custody following release on recognizance as a “self- inflicted injury.” Id. at 1013 n.1. But the Government ignores our caveat that a plaintiff’s decision to remain in state custody does not defeat standing if it was “reasonably incurred to mitigate or avoid the future harm [the plaintiff] claimed to fear.” Id. (citation and internal quotation marks omitted). Gonzalez delayed posting bail to avoid the harm of additional detention. That harm was not speculative because, as ICE was aware, LASD complied with all immigration detainers when Gonzalez commenced suit.
Seeking to cast doubt on whether Gonzalez would have
been detained pursuant to the detainer, the Government also
argues that a detainer merely requests detention and is not a
command that an LEA detain an individual.
See Galarza v.
The Government frames this as a merits argument that Gonzalez
never suffered a Fourth Amendment seizure pursuant to the immigration
detainer and thus, he cannot represent a class of individuals who were
detained pursuant to a detainer. The Government relies on our decision
in
Lierboe v. State Farm Mut. Auto. Ins. Co.
,
Finally, the Government focuses on Gonzalez’s
allegations that “he could be taken into ICE’s physical
custody and detained for 2 more days, and perhaps longer,”
to argue that Gonzalez faced a speculative injury that could
not support standing for prospective injunctive relief. But,
like the district court did , the Government conflates two
Pac. Sw., Inc
., 926 F.3d 528, 532 (9th Cir. 2019) (confirming that
Lierboe
concerned Article III standing). There, the plaintiff sued on the
theory that she had a stacking claim pursuant to Montana law.
Lierboe
court violated the law of the case doctrine by granting injunctive relief following trial while failing to reconsider its earlier determination that distinct prospective detention injuries: (1) the injury of an additional period of unlawful detention while in LASD custody solely by virtue of the detainer and (2) the injury of unlawful detention after being taken into ICE custody, at which point the entire purpose of the detainer would have already been served. Although both injuries were prospective, the TAC shows only the latter to be too speculative to support Article III standing.
2. Causal Connection
The fact that “ICE never had custody of” Gonzalez does
not defeat causation.
Mendia
,
United States. But because of the detainer, Gonzalez “remain[ed] in pre-trial detention unnecessarily.” Mendia , 768 F.3d at 1013. Thus, Gonzalez satisfies the causation element of standing.
3. Redressability
Because Gonzalez faced ongoing and prospective
detention injuries by virtue of the detainer when he
commenced suit, his “injury was at that moment capable of
being redressed through injunctive relief.”
McLaughlin
B. ICE’s Post-Commencement Cancellation of the Detainer
As a final matter, the Government argues that ICE’s
cancellation of the detainer against Gonzalez within hours
after he brought suit shows that he never had a Fourth
Amendment claim because LASD never detained him
pursuant to the detainer. In making this argument, the
Government mistakes for a merits issue what is plainly a
mootness inquiry.
See Friends of the Earth
,
Mootness is the requirement that “an actual, ongoing
controversy exist at all stages of federal court proceedings.”
Pitts v. Terrible Herbst
,
Inc.
,
II. The Certification of the Probable Cause Subclass
We turn next to the Government’s challenge to the district court’s certification of the Probable Cause Subclass
G ONZALEZ V . USICE 29 with Gonzalez as its representative. Because both injunctions grant relief to the Probable Cause Subclass, we must first address the propriety of the district court’s certification of this class. See Meredith v. Oregon , 321 F.3d 807, 814 (9th Cir. 2003).
The party seeking certification must satisfy Rule 23(a)’s
prerequisites and must establish that the proposed class
qualifies as a certifiable class pursuant to Rule 23(b).
Ellis
v. Costco Wholesale Corp
.,
A. The Rule 23(a) Prerequisites
Pursuant to Rule 23(a), “one or more members of a class
may sue . . . as representative parties” if there is numerosity,
commonality, typicality, and adequacy. Fed. R. Civ. P.
23(a). We must engage in a “‘rigorous analysis’ of each
Rule 23(a) factor[.]”
Ellis
,
1. Commonality
*24
A finding of commonality requires “questions of law or
fact common to the class.” Fed. R. Civ. P. 23(a)(2). “All
questions of fact and law need not be common to satisfy the
[commonality requirement]. The existence of shared legal
issues with divergent factual predicates is sufficient[.]”
Meyer v. Portfolio Recovery Assocs., LLC
,
At class certification, Plaintiffs proffered evidence that,
in Southern California, “ICE issues . . . approximately
seventy percent [] of its detainers relying only on electronic
database checks to determine whether there is probable
cause for detainment.”
Roy
,
Moreover, the claims of the Probable Cause Subclass
turn on the Fourth Amendment’s requirement of “a fair and
reliable determination of probable cause as a condition for
any significant pretrial restraint of liberty.”
Baker v.
McCollan
, 443 U.S. 137, 142 (1979) (citing
Gerstein
420 U.S. at 103). Because the class is defined as those
individuals against whom ICE issued a detainer based solely
*25
on searches of electronic databases, ICE’s policy of making
probable cause determinations based solely on such searches
is the “glue” that holds the class together.
See Parsons v.
Ryan
,
Although Plaintiffs did not need to prove the merits of their Fourth
Amendment claim for the district court to find commonality, the court
observed that Plaintiffs had introduced evidence undermining the
legality of ICE’s reliance on the databases, including that the databases
The Government’s
assertions of
error here
conspicuously conflate Rule 23(b)(3)’s predominance
requirement with commonality under Rule 23(a)(2). The
Government points to
Amchem Products, Inc. v. Windsor
,
The Government also reprises its argument against class
certification in the district court that “probable cause is a
highly fact specific inquiry.”
Roy
, 2016 WL 5219468,
at *14. The Government argues that probable cause
“depends on the totality of the circumstances” surrounding
an individual arrest,
Maryland v. Pringle
,
(2002). Contending that a database search is but one part of
the totality-of-the-circumstances analysis, the Government
asserts that the lawfulness of an individual detainer must be
assessed on its own terms “even if the database alone is
unreliable.” The district court rejected this argument,
explaining that “the Probable Cause Subclass does not
challenge whether ICE actually had probable cause; rather,
it challenges the alleged practice of basing probable cause
only on information contained in an online database . . .”
Roy
,
Although we have no doubt that “[t]he constitutional
validity of a warrantless search is pre-eminently the sort of
question which can only be decided in the concrete factual
context of [an] individual case,” that question is “
quite
different
from the question of the
adequacy of the
procedur
[
es
]” on which the government relies to make
arrests and detain individuals.
Sibron v. New York
, 392 U.S.
40, 58 (1968) (emphasis added). On the latter issue, Fourth
Amendment claims concerning government policies,
practices or procedures for probable cause determinations
are plainly suitable for classwide resolution.
See
McLaughlin
,
34 G ONZALEZ V . USICE 2. Typicality
The claims of the representative party must be typical of
the class claims. Fed. R. Civ. P. 23(a)(3). This “inquiry
focuses on the
nature of the claim
. . . of the class
representative, and not . . . the specific facts from which it
arose.”
Ramirez v. TransUnion LLC
,
a. Gonzalez’s U.S. Citizenship The Government asserts that Gonzalez, as a U.S. citizen, is atypical of the class because it includes noncitizens. We disagree.
i. 8 U.S.C. § 1252(b)(9) The Government argues that Gonzalez is atypical of unnamed noncitizen class members over whose claims the The Government’s challenge to adequacy is coextensive with its challenge to Gonzalez’s typicality. Thus, our analysis here applies equally to adequacy.
district court lacked subject matter jurisdiction pursuant to
8 U.S.C. § 1252(b)(9). “The usual rule in class actions is
that to establish subject matter jurisdiction one looks only to
the named plaintiffs and their claims.”
Pruell v. Caritas
Christi
,
Section 1252(b)(9), titled “[c]onsolidation of questions for judicial review,” provides that “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States . . . shall be available only in judicial review of a final order” of removal and “no court shall have jurisdiction . . . . to review such an order or such questions of law or fact” other than through a review of a final order of removal. 8 U.S.C. § 1252(b)(9). We have described § 1252(b)(9) as “vise-like in grip,” channeling jurisdiction over “any issue— whether legal or factual—arising from any removal-related activity” to the courts of appeal through a petition for review of a final order of removal. J.E.F.M. v. Lynch , 837 F.3d 1026, 1031 (9th Cir. 2016) (internal quotation marks omitted) (emphasis omitted). But we have also explained that “§ 1252(b)(9) has built-in limits,” specifically, “claims that are independent of or collateral to the removal process do not fall within the scope of § 1252(b)(9).” Id . at 1032.
The Supreme Court has since
instructed
that
§ 1252(b)(9) is a “targeted” and “narrow” provision that “is
certainly not a bar where, as here, the parties are not
challenging any removal proceedings.”
Dep’t of Homeland
Sec. v. Regents of Univ. of Cal
., 140 S. Ct. 1891, 1907
(2020). The Probable Cause Subclass is defined to
exclude
individuals against whom there is a final order of removal as
well as any individual subject to ongoing removal
proceedings. The Government has also admitted that an
immigration detainer is
not
an administrative warrant for the
arrest of an individual on civil immigration charges. As in
Regents
, § 1252(b)(9) is not a bar to jurisdiction over the
claims of any class members—noncitizen or U.S. citizens—
because none “ask[s] for review of an order of removal, the
decision to seek removal, or the process by which
removability will be determined.”
Id.
(cleaned up);
see also
E. Bay Sanctuary Covenant v. Trump
,
Section 1252(b)(9) is also not a bar to jurisdiction over
noncitizen class members’ claims because claims
challenging the legality of detention pursuant to an
immigration detainer are independent of the removal
process.
See Aguilar v. ICE
,
ii. Rebuttable Presumption of Alienage
The Government also argues that Gonzalez is atypical of
noncitizen class members because evidence of foreign
birth—“even with citizen-class members”—gives rise to a
rebuttable presumption of alienage on which an immigration
officer may rely as part of a probable cause determination,
which does not apply to “someone who is or who the
government should have known is a citizen. Setting aside
that the challenge here concerns the legality of a policy that
applies equally to all class members, the Government makes
no suggestion that it raised this atypicality argument in the
district court, and the class certification order suggests that
the Government did not do so.
See Roy
,
b. Gonzalez’s Individual Circumstances Finally, the Government asserts that Gonzalez is also atypical in light of the circumstances pertaining to his immigration detainer. The Government first argues that Gonzalez is unlike other class members detained pursuant to an immigration detainer because it cancelled the detainer against him within hours after he filed this suit. By The Government relies on our decision in Scales v. I.N.S. 232 F.3d 1159 (9th Cir. 2000), for this argument. Scales , however, concerned a presumption in a burden-shifting framework in removal proceedings. Id. at 1163. We did not hold that, nor consider whether that presumption applies to a probable cause determination of *30 removability.
38 G ONZALEZ V . USICE concluding that his claims fall within the inherently transitory exception to mootness, the district court evaluated his claims as they stood before the Government’s cancellation of the detainer. Although the Government asserts that the court confused mootness with whether Gonzalez’s claims are typical, the Government does not identify any authority showing the court’s analysis to be erroneous. A bare assertion of error does not establish an abuse of discretion.
The Government argues further that because an LAPD
officer incorrectly wrote on Gonzalez’s booking record that
he was born
in Mexico, Gonzalez has “unique”
circumstances that make him atypical. The Government
ignores its own stipulation in the district court that an ICE
agent “issued Plaintiff Gonzalez’s detainer” because one
database—the Los Angeles County Consolidated Criminal
History System—“erroneously stated that [he] was born in
Mexico and no records of Plaintiff Gonzalez were found in
[two other databases] showing that [he] legally entered the
United States or was legally present in the United States.”
Howsoever the error was introduced into one of the
databases, it was nonetheless an error in a database on which
ICE relied to determine whether Gonzalez was removable,
as the district court acknowledged at class certification.
See Roy
,
*31 B. The Certification of the Class Pursuant to Rule 23(b)(2)
The district court properly certified the Probable Cause Subclass as a Rule 23(b)(2) class. Id . at *21. Rule 23(b)(2) provides that “[a] class action may be maintained if Rule 23(a) is satisfied and if . . . the party opposing the class has acted . . . on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Jennings v. Rodriguez , 138 S. Ct. 830, 852 (2018) (citation omitted). The Probable Cause Subclass is narrowly defined to include only those individuals against whom ICE issued an immigration detainer pursuant to its policy of relying solely on a search of electronic databases to make a probable cause determination. The district court properly concluded that a determination about the lawfulness of this policy under the Fourth Amendment and corresponding injunctive or declaratory relief would provide relief to the entire class. See Roy , 2016 WL 5219468, at *21. The Government’s assertions of error here repeat the Government’s challenges to commonality. Because we have already rejected those arguments, they fail here as well. Thus, the district court did not abuse its discretion in concluding that the Probable Cause Subclass satisfied Rule 23(b)(2). Accordingly, we affirm the district court’s certification of this class. III. Jurisdiction to Order Injunctive Relief for the
Detainer Claims Before we turn to the merits of the State Authority and Database Injunctions, we must also consider the Government’s assertion that 8 U.S.C. § 1252(f)(1) precludes the injunctive relief that the district court granted for the detainer claims underlying the classwide injunctions. The plain language of § 1252(f)(1) and the relevant statutory provisions compel us to reject the Government’s assertion.
Section 1252(f)(1) is straightforward. It provides that: Regardless of the nature of the action or claim . . . , 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, as amended by the Illegal Immigration Reform and Immigrant *32 Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
8 U.S.C. § 1252(f)(1). “Part IV” is a reference to the provisions titled “Inspection, Apprehension, Examination, Exclusion, and Removal,” which currently include 8 U.S.C. §§ 1221–1232 of the INA.
By its terms, § 1252(f)(1) does not, as the dissent
imagines, categorically insulate immigration enforcement
from “judicial classwide injunctions.” Section 1252(f)(1)
places limitations on the jurisdiction and authority of district
and circuit federal courts to grant injunctive relief that
restrains or enjoins the operation of §§ 1221–1232.
See Jennings,
138 S. Ct. at 851;
Reno v. Am.-Arab Anti-
Discrimination Comm
.,
The Government tells us that the injunctions contravene
§ 1252(f)(1) because its detainer authority is “now codified
in, among other statutes, [] §§ 1226 and 1231, both covered
by § 1252(f)(1).” But the Government predicates that
argument on its detainer regulation, 8 C.F.R. § 287.7. “An
administrative regulation, of course, is not a ‘statute.’”
United States v. Mersky
,
The Government’s assertions here avoid statutory text
because none of the provisions of Part IV, let alone §§ 1226
and 1231, even refer to “detainers.”
See generally
8 U.S.C.
§§ 1221–1232. The only provision of the INA whose plain
language refers to “detainers” is located in 8 U.S.C. § 1357
(“Powers of immigration officers and employees”), a
statutory provision contained in Part IX.
See
8 U.S.C.
§ 1357(d). That provision provides for the issuance of
We recognize that Congress has authorized the promulgation of
regulations to carry out the provisions of the INA.
See
8 U.S.C. § 1103.
Whether the detainer regulation is valid pursuant to this grant of general
authority,
see Comm. for Immigrant Rights of Sonoma Cty. v. Cty. of
Sonoma
,
G ONZALEZ V . USICE
43
immigration detainers only when an individual is arrested for
a controlled substance offense and is a suspected alien.
Id.
We have already recognized that “[t]he INS
has authority
to
lodge a detainer against a prisoner under 8 U.S.C.
§ 1357(d).”
McLean v. Crabtree
,
Although its own detainer regulation is titled “detainer provisions
under section 287(d)(3) of the Act”—a reference to § 1357(d)—and
identifies detainers as “issued pursuant to” § 1357,
see
8 C.F.R.
§ 287.7(a), the Government conspicuously ignored § 1357(d) in its
opening brief. In its reply brief, the Government acknowledged
§ 1357(d) for the first time, but only to explain it away as a mere statutory
road bump to the conclusion that any detainer authority necessarily arises
from the provisions that § 1252(f)(1) encompasses. The dissent
embraces the Government’s approach but goes further. The dissent
conjectures that § 1357(d)—a provision that the Government’s own
detainer regulation cites three times as a basis for issuing immigration
detainers—does not actually authorize detainers at all. We cannot agree
with either the Government or the dissent for the simple reason that we
are not free to ignore Congress’s choice to locate the only statutory
reference to immigration detainers outside the provisions that
§ 1252(f)(1) encompasses, even if we might disagree with that choice as
a policy matter.
See United States v. State of Washington
,—F.3d—,
2020 WL 4814127, at *6 (9th Cir. Aug. 19, 2020);
Planes v. Holder
Unable to anchor its arguments in the text of §§ 1226 or
1231, the Government tells us that its detainer authority is
nonetheless
implied
under those provisions, and thus
§ 1252(f)(1)’s limitations apply. The dissent embraces this
*35
argument, relying on a single unpublished district court
decision to surmise that any implied detainer authority must
necessarily arise under the provisions that § 1252(f)(1)
encompasses.
See Santoyo v. United States
, No. 5:16-CV-
855-OLG, 2017 WL 6033861, at 3* (W.D. Tex. Oct. 18,
2017). We cannot, however, “create[] out of thin air”
statutory text that does not exist.
Hamama v. Adduci
,
Although the Government attempts to conjure an implied detainer authority in the shadow of §§ 1226 and 1231, we The classes exclude individuals for whom a detainer issued pursuant to a final order of removal. Thus, the injunction could not restrain or enjoin the operation of § 1231 for this additional reason. Nevertheless, we address the Government’s arguments on their terms. . observe further that the detainers here do not directly implicate the authority of those provisions. Section 1231 codifies the Attorney General’s authority to remove and detain aliens who are already subject to a final order of removal. 8 U.S.C § 1231(a)(2), (6). The classes in this case, however, exclude individuals to whom the Government issues a detainer due to a final order of removal. Section 1226 in turn authorizes “the Attorney General” to arrest aliens “[o]n a warrant” and detain them pending removal proceedings. Id. § 1226(a), (c); see also Jennings 138 S. Ct. at 838 (explaining that “[§] 1226 governs the process of arresting and detaining [certain] aliens pending their removal”). But it is undisputed that a detainer is not a warrant of any kind. More critically, neither DHS, nor ICE arrests or detains any individual by issuing an immigration detainer to a state or local LEA. Instead, DHS and ICE rely on the LEA to do so. Although the Government may use *36 detainers issued to state and local LEAs with the purpose of arresting and detaining a suspected alien, the possibility that the Government may eventually arrest and detain an individual by virtue of the detainers at issue here is of no moment because the INA provisions directly implicated by such detainers fall outside § 1252(f)(1)’s scope. [19] [19] Congress has addressed the arrest and detention authority of state and local LEAs for aliens, and delimited ICE’s role in provisions to which § 1252(f)(1)’s limitations do not apply. See 8 U.S.C. § 1252c(a) (provision located in Part V and is thus also outside the scope of § 1252(f)(1)). And Congress has addressed elsewhere ICE’s authority to make a warrantless arrest of an individual who ICE has “reason to believe” is a removable alien, 8 U.S.C. § 1357(a)(2), the authority of state and local LEAs to carry out federal immigration functions, id. § 1357(g), and the ability of such LEAs to cooperate with the Federal Government specifically on the issue of detainers, id. § 1357(d). None of these provisions is located in Part IV.
Our task here is simple: “when the express terms of a
statute give us one answer and extratextual considerations
suggest another, it’s no contest. Only the written word is the
law, and all persons are entitled to its benefit.”
Bostock v.
Clayton County
,
IV. The State Authority Injunction
The State Authority Injunction permanently enjoins ICE “from issuing detainers seeking the detention of Probable Cause Subclass members to law enforcement agencies in states that lack state law permitting state and local law enforcement agencies to make civil immigration arrests based on civil immigration detainers only.”
Plaintiffs contend that this injunction is “merely an alternative basis” on which the district court granted relief to the Probable Cause Subclass. Because the class is defined in part by ICE’s reliance on electronic database searches to issue immigration detainers, Plaintiffs argue that we should The dissent objects to the analysis here in part because of the consequences that it speculates will ensue, namely, that some future *37 plaintiffs could challenge the regulation, or the possibility that the Government’s detainer “enforcement tools” could be affected by an injunction at some point. These extratextual considerations are insufficient to tip the statutory scales in favor of the Government’s desired outcome, or the dissent’s approach. See Bostock , 140 S. Ct. at 1737.
limit our analysis to the Database Injunction to avoid the constitutional issues underlying the State Authority Injunction. We are unpersuaded. That both injunctions pertain to the same class does not render “alternative” the State Authority Injunction’s imposition of, as Plaintiffs recognize, “totally independent” restrictions with distinct legal and factual issues. There are also no constitutional questions to avoid because, as discussed in Part V, the Database Injunction is infirm. Thus, we must decide the merits of the State Authority Injunction.
At the outset, we must clarify what we do
not
decide
here. In issuing the State Authority Injunction, the district
court relied on principles of preemption and federalism to
reason that a state “must consent to the delegation of federal
immigration functions,” in the absence of which ICE
violates the Fourth Amendment by issuing an immigration
detainer.
Gonzalez
,
48
G ONZALEZ V . USICE
The only issue that we must decide is whether state law restrictions on the authority of state or local officers to enforce federal civil immigration law determine whether the Government violates the Fourth Amendment by issuing an immigration detainer. The Supreme Court’s decision in Virginia v. Moore , 553 U.S. 164 (2008), instructs that the answer is “no.”
In Moore , the defendant was charged with possession of cocaine with intent to distribute after Virginia state officers discovered crack cocaine on him as part of a search incident to his warrantless arrest for the misdemeanor of driving with a suspended license. Id . at 166–67. Moore moved to suppress the crack cocaine on the ground that his arrest violated the Fourth Amendment because driving with a suspended license was not an arrestable offense in Virginia and thus the officers lacked authority to arrest him. Id . at 167–68. In reversing the trial court’s denial of the motion, the Virginia Supreme Court “reasoned that since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incident to citation, the arrest search violated the Fourth Amendment.” Id . at 168. The United States Supreme Court reversed.
Two aspects of the Court’s analysis are key here. First, the Court reinforced the primacy of probable cause in the evaluation of whether a warrantless arrest comports with the Fourth Amendment. Id. at 171 (“[W]hen an officer has probable cause to believe a person committed even a minor crime . . . the arrest is constitutionally reasonable.”); id. at 173 (“[A]n arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure.”); id. at 174–75 (explaining that even if state law restrictions somehow altered the policy interests, the Court “would adhere to the probable-cause standard . . . because of the need for a bright-line constitutional standard”). Second, the Court squarely rejected the notion that “state-law arrest limitations” dictate whether a Fourth Amendment violation has occurred. Id . at 175. The Court explained that “linking Fourth Amendment protections to state law would cause *39 them to ‘vary from place to place and from time to time.’” Id . at 176 (quoting Whren v. United States , 517 U.S. 806, 815 (1996)). To avoid the “vague and unpredictable” consequences of tethering the Fourth Amendment to the laws of the fifty states, id. at 175, the Court held that “state restrictions do not alter the Fourth Amendment’s protections,” id . at 176. In resolving the case, the Court concluded that even if Moore’s arrest violated state law, “it is not the province of the Fourth Amendment to enforce state law.” Id . at 178. Because the officers had probable cause to believe that Moore violated state law by driving with a suspended license, his warrantless arrest and ensuing search were constitutional. Id.
Plaintiffs tell us that
Moore
is distinguishable because it
concerned criminal rather than civil arrests. We do not
understand why that distinction matters to the general Fourth
Amendment principles that
Moore
articulated concerning
warrantless arrests and seizures. It is undisputed that an
immigration detainer requests detention of an individual.
“Detention, of course, is a type of seizure of the person to
which Fourth Amendment protections attach.”
Alcocer v.
Mills
,
Critically, we have already applied
Moore
to conclude
that the absence of state authorization for a state officer to
enforce federal immigration law does not render the officer’s
seizure of an individual for the suspected
civil
immigration
offense of unlawful presence in the United States a Fourth
Amendment violation.
See Martinez-Medina v. Holder
673 F.3d 1029, 1031–32 (9th Cir. 2011). There, the
petitioners sought to suppress evidence of alienage for an
allegedly egregious Fourth Amendment violation.
Id.
at 1036. They argued that an Oregon deputy sheriff who had
arrested them lacked state law authority to do so, pointing to
a provision of Oregon law that expressly forbade law
enforcement agencies from apprehending someone whose
only violation of law was the violation of federal
immigration law.
Id
. (citing Or. Rev. Stat. § 181.850). “We
*40
assume[d], without deciding, that the deputy sheriff, like the
officers in
Moore
, violated state law when he apprehended
the aliens without the authority to do so.”
Id.
at 1037. We
nonetheless held that “the deputy sheriff’s violation of
Oregon law does not constitute a violation of the Fourth
Amendment” and thus “cannot be the basis for finding an
egregious Fourth Amendment violation.”
Id.
at 1036 (citing
Moore
,
In finding for Plaintiffs on the State Authority Claim and
entering the resulting State Authority Injunction, the district
court erred by failing to account for
Moore
and
Martinez-
Medina
.
See Gonzalez
,
Moore
, however, rejected the unpredictability and
vagaries of such a regime with a bright-line rule: 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.
Moore
,
52
G ONZALEZ V . USICE
officers] had jurisdictional authority under state law, as long
as the officers’ actions were otherwise reasonable”). That
issue concerns
the Database Claim and Database
Injunction. But because “state restrictions do not alter the
Fourth Amendment’s protections,”
Moore
,
Plaintiffs have challenged the Government’s issuance of
immigration detainers from the Central District based solely
on searches of electronic databases to make probable cause
determinations of removability. In finding for Plaintiffs on
this Database Claim, the district court concluded that the
databases are unreliable for determining probable cause of
removability, and thus the Government violates the Fourth
Amendment by issuing detainers based solely on searches of
the databases.
See Gonzalez
,
*42 principles that apply here, and then turn to the factual findings and legal conclusions underlying the injunction.
A. Fourth Amendment Principles
The Fourth Amendment protects against unreasonable
seizures by the government. U.S. Const. amend. IV. “The
infringement on personal liberty of any ‘seizure’ of a person
can only be ‘reasonable’ under the Fourth Amendment if we
require the police to possess ‘probable cause’
before
they
seize him.”
Terry v. Ohio
,
“[P]robable cause is a fluid concept—turning on the
assessment of probabilities in particular factual contexts—
not readily, or even usefully reduced to a neat set of legal
rules.”
Illinois v. Gates
,
As is relevant here, the government may rely on a
computer database to make a probable cause determination.
Herring v. United States
,
Although probable cause is “incapable of precise
definition or quantification into percentages because it deals
with probabilities and depends on the totality of the
circumstances,”
Pringle
,
B. The Errors Underlying the Database Injunction
The claims of the Probable Cause Subclass concern the
Government’s issuance of immigration detainers from the
Central District. The Government must have probable cause
to lodge an immigration detainer,
i.e
., before an individual is
detained pursuant to the detainer.
See Hernandez
, 939 F.3d
at 200;
Morales v. Chadbourne
,
The district court concluded “that ICE violates the
Fourth Amendment by relying on an unreliable set of
databases to make probable cause determinations for its
detainers.”
Gonzalez
,
1. The Incomplete Database Reliability Findings Throughout the district court’s order are a number of sweeping, categorical conclusions about the databases on which ICE relies. See id. at 1011 (“All told, the collection of datapoints ICE gathers from the various databases does not provide affirmative indicia of removability to satisfy probable cause . . . because the aggregation of information ICE receives from the databases is largely erroneous and fails to capture certain complexities and nuances of immigration law.”); id . at 1019 (“[T]he set of databases ICE checks, and the information stored therein, contain serious errors.”).
These categorical findings, however, suffer from a key shortcoming: the district court did not make reliability findings for all the databases on which ICE relies. Although trial occurred in May 2019, the district court anchored its analysis in the databases on which ICE relied as of December 2017 and identified sixteen databases on which ICE relied at that point. Id . at 1007–08 & n.12. Its unreliability findings, however concerned only six databases. Id. at 1008–11, 18–19 (examining the CIS, CLAIMS 3 and CLAIMS 4, ADIS, SEVIS, and TECS databases). Although the court identified them, the court failed to make any findings for PCQS (Person Centric Query
G ONZALEZ V . USICE 57 Search), EOIR, EID, SQ11, SQ94, ELIS 1 & 2, the California Birth Index, the CCD database, the RAPS (Refugee, Asylum and Parole System) database, or the NCIC and NLETS databases. Id.
Plaintiffs argue that the district court did not need to make reliability findings about all the databases on which ICE relies because they are not relevant to the Probable Cause Subclass for one reason or another. But Plaintiffs’ assertions in their briefing are not findings by the district court. Moreover, contrary to Plaintiffs’ arguments, the court expressly recognized that some of the databases for which it failed to make any determinations of reliability contain information that bears on probable cause determinations of removability for Probable Cause Subclass members. For example, the district court recognized that the NCIC and NLETS criminal databases “are relevant for removability purposes,” but failed to assess their reliability. Id. at 1008. The district court also recognized that the CCD database contains information about visas for which noncitizens have applied, id . at 1007 n.12, but the court apparently thought that the database was irrelevant because “it is not a broad- reaching database that captures all U.S.-born citizens, id . at 1011 n.17. Notably, Plaintiffs offer no explanation for the district court’s failure to address the NCIC, NLETS, and CCD databases.
In a case concerning the reliability of
the
databases on
which ICE relies to make probable cause determinations, the
district court could not make categorical findings of
unreliability without actually addressing
each
database on
The district court apparently excluded the RAPS database because
“ICE is not required to search” it.
Gonzalez
,
2. The Database Purpose Error
In evaluating the reliability of the databases on which
ICE relies, the district court relied on Footnote 7 of our
decision in
Millender v. County of Los Angeles
, 620 F.3d
1016, 1029 n.7 (9th Cir. 2010) (en banc),
rev’d and vacated
on other grounds by Messerschmidt v. Millender
, 565 U.S.
535 (2012), to reason that whether a database was intended
to provide probable cause of removability determines
whether that database is reliable for that purpose.
See Gonzalez
,
The district court’s conclusion, however, stemmed from
a fundamental misreading of
Millender
. In
Millender
, we
rejected the dissent’s reliance on a statement in an affidavit
used to support a search warrant, which referred to
information contained in the “cal-gang database.”
Compare Millender
,
Properly understood, our reasoning in Millender would support the exclusion of a database from the probable cause calculus for evaluating the merits of the Database Claim if a database on which ICE relies warns against reliance on it to make probable cause determinations of removability specifically or, more generally, for civil immigration purposes. But the district court made no such findings. Because we cannot extricate the court’s erroneous reading of Millender from its conclusion that the databases on which ICE relies are unreliable, we conclude that the district court *47 committed legal error.
3. The Failure to Find or Analyze Systematic Error
Finally, we come to the most fundamental error in the
district court’s analysis: the absence of any findings on or an
assessment of
systemic error
in ICE’s probable cause
determinations based on searches of electronic databases.
The Database Claim that Plaintiffs raise is a challenge to a
system of databases on which ICE relies to issue detainers
from the Central District for class members. 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.
Herring
Unreliable here means that ICE routinely issues immigration detainers without reasonably trustworthy evidence of removability. As the experiences of Gonzalez and other individuals who are not removable but have been subject to an immigration detainer underscores, unreliability has tangible consequences. One way to assess the trustworthiness of ICE’s system is to quantify these unlawful arrests and use them to determine the nature and extent of any systematic error. We are unable, however, to identify any findings by the district court of systematic error in the issuance of detainers from the Central District, let alone a reasoned analysis on this issue.
To be sure, the district court briefly touched on “the effect of ICE’s reliance on the databases for probable cause determinations.” Gonzalez , 416 F. Supp. 3d at 1011. Focusing on data from when PERC relied on fewer databases, the court observed that PERC issued some 12,797 detainers between May 2015 and February 2016. Id. Of these detainers, ICE lifted 771 detainers because the individuals were either U.S. citizens or otherwise not subject to removal and, of those, 42 were U.S. citizens. Id. But the court did not translate this data into findings about detainer lift rates that might illuminate whether the Government’s system of databases routinely results in the Government issuing detainers for class members who are not removable. Nor did the district court identify any evidence Although the parties dispute the lift rates of this data and whether the true error rate is higher, it is not our role to make factual findings. of lift or error rates based on the system of databases on which ICE actually relied as of December 2017.
Relatedly, the court failed to account for or examine systematic error in its analysis of whether the Government’s database practices violate the Fourth Amendment. Id. at 1017–20. Even if an individual database provides incomplete information, other databases may compensate for those weaknesses, resulting in a sufficiently reliable accumulation of evidence to furnish probable cause. Although the court’s finding of a Fourth Amendment violation turned on error in individual databases in light of case law concerning individual databases, the fact of such error in individual databases here could not lead to the conclusion that ICE’s system of databases routinely fails to provide reasonably trustworthy evidence of removability.
It may be that despite our disagreements with the district
court’s analysis here, the court will ultimately be proven
correct about the unreliability of ICE’s system of databases.
But we cannot take the laboring oar on resolving factual
issues and performing legal analysis that the district court
never did when it found in favor of Plaintiffs on the Database
Claim and permanently enjoined the Government from
relying solely on searches of electronic databases to issue
immigration detainers from the Central District.
See Gonzales v. Thomas
,
In light of the foregoing errors, the district court abused its discretion when it entered the Database Injunction. We reverse and vacate the judgment and injunction on the Database Claim, and remand for the district court to *49 62 G ONZALEZ V . USICE reconsider the claim, including by making additional findings of fact as are necessary to properly resolve it. VI. The Gerstein Claim
Finally, we come to Plaintiffs’ cross appeal concerning the district court’s grant of summary judgment for the Government on the Gerstein claim of the Judicial Determination Class. The class is defined, in relevant part, to include those individuals detained pursuant to a detainer for longer than 48 hours. The legal contention undergirding the Gerstein claim is that the Fourth Amendment requires prompt review of a probable cause determination of removability “by an independent, neutral official who is not engaged in law enforcement activities” to justify detention pursuant to an immigration detainer. The district court thought that Gerstein was inapposite because Gerstein arose in the criminal context rather than the civil immigration context. The district court erred in concluding so, and thus we reverse on this issue.
In Gerstein v. Pugh , the Supreme Court considered the legality of state law criminal procedures, which permitted a person arrested without a warrant and charged by a prosecutor’s information to be jailed pending trial without any opportunity for a probable cause determination. 420 U.S. at 116. In holding this procedure to be unconstitutional, the Court explained that it “has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible” “[t]o implement the Fourth Amendment’s protection against unfounded invasions of liberty and privacy[.]” Id. at 112. The Court explained that a “neutral and detached magistrate” is one who is “independent of police and prosecution.” Id. at 112–13, 118. The Court recognized that “a policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Id . at 113–14. But “[o]nce the suspect is in custody, however, the reasons that justify dispensing with the magistrate’s neutral judgment evaporate.” Id . at 114. “When the stakes are [as] high” as “prolonged detention,” “the detached judgment of a neutral magistrate is essential if *50 the Fourth Amendment is to furnish any meaningful protection from unfounded interference with liberty.” Id. Thus, “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Id . That determination must be “timely.” Id . at 126.
The Court elaborated on the timeliness aspect of Gerstein in County of Riverside v. McLaughlin . The Court explained that “[a] . . . judicial determination[] of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein .” 500 U.S. at 56. “Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay.” Id . at 57. Instead, the government bears the burden “to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” Id .
The critical question here is whether the Fourth Amendment principle that Gerstein articulated applies to the civil immigration context. The answer to this question is necessarily “yes.” The Supreme Court confirmed long ago that any detention of a suspected alien “must be based on consent or probable cause” that the person is in fact an alien. Brignoni-Ponce , 422 U.S. at 881–82. In short, the “broad congressional power over immigration . . . cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens.” Id. at 884. It necessarily follows that the Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate to justify detention beyond that which may be initially justified by any probable cause determination of removability.
We are not persuaded by the Government’s objections to
the application of
Gerstein
in this context. The
Government argues that immigration detainers are exempt
from
Gerstein
based on the Supreme Court’s observation in
a different context that “[a] deportation hearing is a purely
civil action to determine the eligibility to remain in the
country” and thus “various protections that apply in the
context of a criminal trial do not apply in a deportation
hearing.”
Immigration & Naturalization Serv. v. Lopez-
Mendoza
, 468 U.S. 1032, 1038 (1984).
Lopez-Mendoza
however, has no bearing on whether
Gerstein
applies to
arrests or detention for civil immigration purposes. That
case concerned
the application of
the
judge-made
exclusionary rule—a “prudential doctrine” that concerns “an
*51
issue separate from the question whether the Fourth
Amendment rights of the party seeking to invoke the rule
were violated.”
Davis v. United States
,
The Government’s reliance on
Abel v. United States
,
362 U.S. 217 (1960), as a basis for not applying
Gerstein
here is also unavailing. In
Abel
, the Supreme Court opined
that, consistent with the Fourth Amendment, immigration
We summarily reject the Government’s reliance on
United States
v. Tejada
,
authorities may arrest individuals for civil immigration removal purposes pursuant to an administrative arrest warrant issued by an executive official, rather than by a judge. Id . at 230–34. Although an immigration detainer is not an administrative warrant, we will assume that Abel nevertheless applies here. Even with that assumption, Abel is of no help.
Nothing in
Gerstein
, or the principle that it articulated,
requires review of a probable cause determination by an
Article III judge.
See, e.g.
,
Shadwick v. City of Tampa
Finally, the Government relies on our decision in
Rhoden
v. United States
, 55 F.3d 428 (9th Cir. 1995), a case
concerning a border detention. We do not understand how
Rhoden
affects whether
Gerstein
applies to the immigration
detainers at issue here. Properly understood,
Rhoden
concerns whether the unique circumstances of a particular
*52
type of detention affects the timing of a probable cause
66
G ONZALEZ V . USICE
determination by a detached and neutral magistrate, not
whether such a determination is required at all. We
acknowledged there that “[i]n the context of a criminal
arrest, a detention of longer than 48 hours without a probable
cause determination violates the Fourth Amendment as a
matter of law in the absence of a demonstrated emergency or
other extraordinary circumstance.”
Id
. at 432 n.7 (citing
McLaughlin
,
In short, we conclude that the district court erred when it
granted summary judgment for the Government on the
Judicial Determination Class’s
Gerstein
claim based on the
conclusion that
Gerstein
does not apply to the civil
immigration context. Detaining persons for more than
48 hours pursuant to an immigration detainer implicates
Gerstein
. We therefore reverse and remand for the district
court to apply the correct legal standard in the first
instance.
See Kirkpatrick
, 872 F.3d at 1058;
Zetwick v.
County of Yolo
,
CONCLUSION
For the foregoing reasons, we conclude that Gonzalez had standing at the time that he brought suit to seek prospective injunctive relief and ICE’s cancellation of the detainer it placed on Gonzalez did not moot his claim. We hold that § 1252(f)(1)’s limitations on injunctive relief do not apply to the claims at issue in this case. We AFFIRM the district court’s certification of the Probable Cause Subclass. We REVERSE and VACATE the State Authority Injunction. We REVERSE and VACATE the Database Injunction, and REMAND for the district court to reconsider the Database Claim. Finally, we REVERSE and VACATE the summary judgment for the Government on the Gerstein claim, and REMAND for the district court to reconsider the claim. IN PART ; REVERSED AND
AFFIRMED VACATED IN PART; and REMANDED for proceedings consistent with this opinion. EACH SIDE SHALL BEAR ITS OWN COSTS.
BADE, Circuit Judge, dissenting:
The plaintiffs in this case seek classwide orders
enjoining Immigrations and Customs Enforcement (ICE)
from using certain databases when deciding whether to issue
immigration detainers and from collaborating with law
enforcement in certain states to detain suspected removable
never considered that issue. Because we are a court of review and not
first view,
Gonzales
,
aliens. It is difficult to see how such orders would not work to “enjoin or restrain the operation of the provisions of part IV” of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1252(f)(1). Because Congress has enacted a clear jurisdictional bar to such relief in § 1252(f)(1), I respectfully dissent.
I
The majority reasons that because 8 U.S.C. § 1357(d) is the only provision in the INA that explicitly mentions immigration detainers, and it “is not located in ‘Part IV,’” *54 § 1252(f)(1) does not bar injunctive relief in this case. Maj. Op. 42 n.16. I find this approach flawed for two reasons.
First, the majority purportedly relies on the plain language of the statute to conclude that § 1252(f)(1) does not bar injunctive relief in this case. Maj. Op. 40. But its interpretation ignores the plain language of the statute, which prohibits classwide injunctive relief that would “enjoin or restrain the operation of the provisions of part IV.” § 1252(f)(1) (emphasis added). Under the majority’s interpretation, § 1252(f)(1) would not bar an order that enjoins or restrains any important law enforcement tool that ICE employs to enforce the provisions of part IV (such as the tools identified in § 1357, “Powers of immigration officers and employees”), [2] unless that tool is specifically The reference in § 1252(f)(1) to “part IV” is to 8 U.S.C. § 1221– 1232, a series of provisions addressing the “Inspection, Apprehension, Examination, Exclusion, and Removal” of aliens. See 8 U.S.C. ch. 12, subch. II, pt. IV. These powers include: warrantless interrogations, arrests, and
searches of vessels, railway cars, aircraft, or vehicles, § 1357(a); carrying a firearm and executing or serving any order, warrant, identified in part IV. Thus, the majority reads the words “the operation of” out of the statute.
Second, the majority’s analysis of § 1252(f)(1) relies on the apparent conclusion that § 1357(d) is the entire source of ICE’s detainer authority. Maj. Op. 42–43. But the statute’s plain language renders that conclusion implausible. Section 1357(d) does not authorize or define detainers. Instead, it provides that, under certain circumstances, an immigration officer must promptly determine “whether or not to issue a detainer” for an alien arrested for a controlled substances offense. § 1357(d)(3). In fact, nothing about the structure or text of the INA suggests that § 1357(d) is the sole source of ICE’s authority to issue detainers to facilitate the arrest and detention of suspected removable aliens.
A
The majority concludes that § 1252(f)(1) does not apply to provisions that fall outside of part IV of the INA. Maj. Op. 40–41. But § 1252(f)(1) does not insulate provisions from injunctive relief; it insulates the operation of those provisions. Thus, § 1252(f)(1) bars classwide injunctive relief that restrains “ the operation of ” provisions within part IV of the INA, even if ICE’s authority to enforce the *55 provisions of part IV comes, in part, from provisions that are subpoena, summons, or other process, § 1357(a)(5)(B); administering oaths and taking evidence, § 1357(b); warrantless searches of the person and of personal effects in the possession of any person seeking admission to the United States, § 1357(c); fingerprinting and photographing certain aliens, § 1357(f); and entering agreements with state and local governments for their officers or employees to function as immigration officers for the investigation, apprehension, or detention of aliens, § 1357(g).
not within part IV. See § 1252(f)(1) (emphasis added). The statute reads:
(f) Limit on injunctive relief (1) In general
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.
§ 1252(f)(1). By barring the lower courts from issuing
classwide relief that “enjoin[s] or restrain[s] the operation of
the provisions of part IV,”
id.
, Congress requires the lower
courts to determine whether the requested relief has the
effect of enjoining or restraining the operation of the
provisions at issue; if so, then the lower courts lack
jurisdiction to grant that relief.
See Reno v. Am.-Arab Anti-
Discrimination Comm.
,
G ONZALEZ V . USICE 71 federal courts from granting classwide injunctive relief against the operation of §§ 1221–1231, but specifies that this ban does not extend to individual cases.”).
The majority, however, does not undertake this analysis.
Instead, in its view, § 1252(f)(1) is inapplicable unless the
object of the requested relief—in this case a detainer—is
mentioned in a provision that appears in part IV. Thus, the
majority erroneously focuses exclusively on what it
considers the source of the detainer power without regard for
the effects of restricting that power.
See, e.g.
,
Vazquez Perez
v. Decker
, 18-cv-10683,
Although the § 1252(f)(1) inquiry may involve locating the statute authorizing the conduct at issue, that is not the whole inquiry. The ultimate question is not simply whether the authority for that conduct comes from part IV, but whether a court order restricting that conduct “enjoin[s] or restrain[s] the operation of ” part IV. § 1252(f)(1) (emphasis added). If the majority reached this question, it could not avoid concluding that the classwide relief Plaintiffs request directly implicates ICE’s statutory charge under part IV to apprehend and detain suspected removable aliens because it restricts ICE’s power to issue detainers, which serve “the purpose of arresting and removing [] alien[s].” Mendia v. Garcia , 768 F.3d 1009, 1011 (9th Cir. 2014) (quoting 8 C.F.R. § 287.7(a)).
B
Moreover, the majority ties its analysis of § 1252(f)(1) to what it apparently considers the source of ICE’s authority to issue detainers, § 1357(d). Because this is the only INA provision that explicitly mentions detainers, and because § 1357(d) falls outside part IV, the majority concludes that the analysis is complete and § 1252(f)(1) does not apply. Maj. Op. 44. I disagree. Even if we assume that the § 1252(f)(1) inquiry turns on the source of the detainer power, it is implausible that ICE’s power to issue immigration detainers stems entirely from § 1357(d).
That provision, entitled “Detainer of aliens for violation of controlled substances laws,” reads:
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.
§ 1357(d).
Although it uses the term “detainer” in its title and three
more times in its text, § 1357(d) never defines the term. The
*58
statute seems to assume that there are standards to guide an
officer in “determin[ing] whether or not to issue such a
detainer,” but it does not provide or point to any standards
itself.
Id.
In fact, § 1357(d) never explicitly
authorizes
the
issuance of detainers at all—even though the same statute
enumerates, in three other places, actions that “[a]ny officer
of employee of the Service . . .
shall have the power
” to take.
§ 1357(a)–(c) (emphasis added);
see Russello v. United
States
,
In contrast to what the text of § 1357(d) actually
provides, the majority’s citation to
McLean v. Crabtree
*59 [4] Perhaps recognizing these implications, the majority cites Commission for Immigrant Rights , 644 F. Supp. 2d at 1199, but concludes that it need not decide whether the regulation authorizing detainers, 8 C.F.R. § 287.7, is valid. Maj. Op. 42 n.16.
The majority also notes that 8 U.S.C. § 1103 authorizes DHS “to promulgat[e] regulations to carry out the provisions of the INA,” but asserts that “[w]hat matters here is that that general grant of authority is not located in ‘Part IV.’” Maj. Op. 42 n.16. Thus, the majority seems to suggest that, even if we consider § 1103 an additional or alternative source of ICE’s detainer power, § 1252(f)(1) does not bar the classwide relief Plaintiffs request because § 1103 is not in part IV of the INA. But grounding ICE’s detainer power in § 1103—a “general grant of power to administer and enforce all immigration laws,” Castaneda-Gonzalez v. INS , 564 F.2d 417, 423 (D.C. Cir. 1977)—does not answer whether § 1252(f)(1) bars the relief Plaintiffs request. Section 1103 is ultimately the statutory source of all of ICE’s authority, including ICE’s detainer authority, but that does not mean that ICE does not also derive its detainer authority from other provisions of the INA, including part IV, which authorizes the “Inspection, Apprehension, Examination, Exclusion, and Removal” of aliens.
Although we need not determine the sources of ICE’s detainer authority to determine whether enjoining that authority “enjoin[s] or restrain[s] the operation of the provisions of part IV,” § 1252(f)(1), we can nonetheless avoid all these problems of the majority’s approach by acknowledging that the power to issue detainers—that is, to request that another law enforcement officer detain a suspect—arises impliedly from the INA statutes authorizing This argument also fails for the same reason the majority’s arguments based on § 1357(d) fail: even if the source of ICE’s detainer authority is outside part IV, a restriction on ICE’s ability to use detainers “enjoin[s] or restrain[s] the operation of the provisions of part IV,” § 1252(f)(1), because it restrains ICE’s ability to arrest and detain suspected removable aliens.
76 G ONZALEZ V . USICE officers to arrest and detain suspects themselves. See, e.g. Santoyo v. United States , No. 5:16-CV-855-OLG, 2017 WL 6033861, at *3 & n.3 (W.D. Tex. Oct. 18, 2017) (collecting cases and concluding that “[a]lthough no other provision of the INA specifically authorizes the issuance of detainer requests, that authority predates the INA and has long been viewed as implied by federal immigration enforcers’ authority to arrest those suspected of being removable.”). Indeed, this is the Department of Homeland Security’s interpretation of the statutes it administers. [6] The Department has stated that it issues detainers “pursuant to sections 236 [8 U.S.C. § 1226] and 287 [8 U.S.C. § 1357] of the Act.” 8 C.F.R. § 287.7(a).
Section 1357 is not in part IV, but § 1226 is, and its
broad authorization to arrest and detain aliens accords with
the conclusion that the detainer power stems from ICE’s
arrest and detention powers under part IV.
Compare
8 U.S.C. § 1226(a) (“On a warrant issued by the Attorney
General, an alien may be arrested and detained pending a
decision on whether the alien is to be removed from the
United States.”),
with
8 C.F.R. § 287.7(a) (stating that
detainers serve “the purpose of arresting and removing the
alien”).
[7]
Thus, even under the majority’s flawed approach
The government has not argued for
Chevron
deference, and the
majority appropriately declines to reach this issue.
See, e.g.
,
Neustar,
Inc. v. FCC
,
explicitly authorizes DHS to arrest aliens, and “critically, neither DHS, nor ICE arrests or detains any individual by issuing an immigration detainer.” Maj. Op. 45. But this misses the point that what the statute authorizes DHS to do directly, it impliedly authorizes DHS to do through of applying § 1252(f)(1)’s bar only to law enforcement tools that part IV itself authorizes, it should have concluded that classwide relief was barred here because part IV does authorize detainers, albeit impliedly, when it authorizes ICE to arrest and detain suspected removable aliens.
II
The majority’s approach overlooks § 1252(f)(1)’s insulation of “the operation of” the immigration enforcement provisions in part IV of the INA from judicial classwide injunctions. §1252(f)(1). And because the majority misapplies its own purportedly textualist approach, it erroneously concludes that the sole source of ICE’s entire detainer power is a statute that merely requires officers to promptly decide whether to issue detainers for aliens arrested for controlled substances offenses. Because the majority’s approach misreads § 1252(f)(1) and opens the door to sweeping challenges to basic tools of immigration enforcement, I respectfully dissent.
cooperative state and local law enforcement. Rather than engage with this point, the majority employs circular reasoning: § 1226 cannot impliedly authorize detainers because § 1226 contains no explicit authorization for detainers.