Metropolitan News-Enterprise


Friday, September 14, 2020


Page 1


Ninth Circuit Vacates Two Injunctions Against ICE Agents in Central District


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday, in a 2-1 decision, invalidated two injunctions obtained by a U.S. citizen who was detained by the Los Angeles County Sheriff’s Department at the request of federal authorities who erroneously thought he was subject to deportation.

One injunction, issued by District Court Judge André Birotte Jr. of the Central District of California, barred federal authorities in the district from seeking the detention by a local law enforcement agency (“LEA”) of a person in its custody thought to be subject to deportation if the state lacks a law permitting LEAs from making civil arrests based on civil immigration detainers.

The plaintiff in the class action, Gerardo Gonzalez, was arrested by the Los Angeles Police Department on state charges. An Immigration and Customs Enforcement (“ICE”) agent ran his name through electronic databases and concluded that Gonzalez was subject to deportation, prompting ICE to request that the Sheriff’s Department detain him for up to five days in the county jail.

The other injunction issued by Birotte forbids issuance of detainers based exclusively on searches of electronic databases to determine if a LEA’s arrestee is subject to deportation.

Judge Milan D. Smith Jr. wrote the majority opinion, in which Judge John B. Owens joined. Judge Bridget S. Bade dissented.

State Authority Injunction

Addressing what he termed the “State Authority Injunction,” Smith said:

“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.”

He declared that the U.S. Supreme Court’s 2008 decision in Virginia v. Moore “instructs that the answer is ‘no.’ ”

In that case, it was held that whether a search was violative of the Fourth Amendment cannot be determined by referring to state law. Justice Antonin Scalia (since deceased) wrote than “when states go above the Fourth Amendment minimum, the Constitution’s protections concerning search and seizure remain the same.”

Smith wrote:

“Plaintiffs tell as 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.”

Database Injunction

In issuing what Smith called the “Database Injunction,” Birotte said “that ICE violates the Fourth Amendment by relying on an unreliable set of databases to make probable cause determinations for its detainers.”

The Ninth Circuit judge set forth:

“Because only an individual who is not a U.S. citizen and who lacks lawful immigration status is removable from the United States, probable cause here hinges on the information about an individual’s citizenship and immigration status on which the government relies to issue a detainer….[B]ecause the Database Claim challenges the Government’s practice of issuing immigration detainers based solely on searches of electronic databases, the probable cause determinations here hinge entirely on the reliability of the databases.”

He pointed to “three interrelated, yet distinct errors that require reversal”:

“(1) the district court’s incomplete set of reliability findings. (2) the district court’s legal error in concluding that any database is unreliable due to its intended purpose, and (3) the district courts failure to address whether the system of databases on which ICE relies routinely fails to provide sufficiently trustworthy evidence of removability.”

In announcing a remand for fresh findings, Smith said:

“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.”

Bade dissented, arguing that injunctive relief is barred under a provision of the Immigration and Nationality Act.

The case is Gonzalez v. United States Immigration and Customs Enforcement, 20-55175.


Copyright 2020, Metropolitan News Company