Gonzalez v. U.S. Immigration & Customs Enforcement

975 F.3d 788

Gerardo GONZALEZ; Simon Chinivizyan, Plaintiffs-Appellees/ Cross-Appellants,

v.UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; David Marin; David C. Palmatier; Thomas Winkowski, Defendants-Appellants/ Cross-Appellees.^*

Nos. 20-55175

20-55252

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2020 Pasadena, California

Filed September 11, 2020

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), 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 Government¹ , 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 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 , 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (the Gerstein claim). 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. Thus, we affirm in part, reverse in part, and remand.

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 , 184 F.2d 575 (3d Cir. 1950) ; Ex parte Korner , 50 Cal.App.2d 407, 123 P.2d 111, 112 (1942).

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.² The provision 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, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by [DHS]." Id. § 287.7(d). Form I-247A is the current immigration detainer form.³ 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.⁴ 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 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 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...