IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. Case No ANTONIO SANCHEZ OCHOA, Plaintiff Appellee

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1 Case: , 11/01/2017, ID: , DktEntry: 23, Page 1 of 43 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Case No ANTONIO SANCHEZ OCHOA, Plaintiff Appellee v. ED W. CAMPBELL, Director of Yakima County Department of Corrections; SCOTT HIMES, Chief of the Yakima County Department of Corrections; YAKIMA COUNTY, Defendants Appellants On Appeal from the United States District Court for the Eastern District of Washington, No. 1:17-cv-3124 BRIEF OF LAW PROFESSORS AND IMMIGRATION-FOCUSED CIVIL RIGHTS ORGANIZATIONS AS AMICI CURIAE IN SUPPORT OF AFFIRMANCE Mark Fleming Katherine Melloy Goettel NATIONAL IMMIGRANT JUSTICE CENTER 208 S. LaSalle Street, Suite 1300 Chicago, IL T: mfleming@heartlandalliance.org kgoettel@heartlandalliance.org Christopher N. Lasch* University of Denver Sturm College of Law 2255 East Evans Avenue, Suite 335 Denver, CO (203) chris.lasch@gmail.com *Counsel of record for Amici Curiae

2 Case: , 11/01/2017, ID: , DktEntry: 23, Page 2 of 43 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Civil Procedure 26.1, amicus curiae makes the following disclosures: curiae brief: The following non-governmental corporations are party to this amicus Asian Americans Advancing Justice Asian Law Caucus Immigrant Legal Resource Center National Immigrant Justice Center National Immigration Law Center New Orleans Workers Center for Racial Justice (1) For each of the above non-governmental corporate parties listed above, list all parent corporations: None. (2) For each of the above non-governmental corporate parties listed above, list all publicly held companies that hold 10% or more of the party s stock: None. Dated: November 1, 2017 s/ Katherine E. Melloy Goettel KATHERINE E. MELLOY GOETTEL ii

3 Case: , 11/01/2017, ID: , DktEntry: 23, Page 3 of 43 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... v INTEREST OF THE AMICI CURIAE... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 I. THE SYSTEM CONGRESS CREATED CAREFULLY DELINEATES ARREST AUTHORITY FOR CIVIL IMMIGRATION VIOLATIONS A. Congress created a system that authorizes non-federal officials to make civil immigration arrests and detain non-citizens only in narrow, defined circumstances B. The INA makes clear that non-federal officials exercising the function of an immigration officer is subject to the limits of state and local law II. III. THE SPECIFIC ROLE OF I-200 ADMINISTRATIVE IMMIGRATION WARRANTS AND IGSA DETENTION CONTRACTS IN THE SYSTEM CONGRESS CREATED FOR IMMIGRATION ENFORCEMENT AND REMOVAL DEFENDANTS SEIZURES BASED ON AN ADMINISTRATIVE WARRANT VIOLATES THE FOURTH AMENDMENT A. The long, unbroken history that non-federal officials lack congressional authority to seize individuals for civil immigration enforcement makes Defendants seizure based on the I-200 warrant unreasonable under the Fourth Amendment B. Defendants preempted civil immigration seizures are unreasonable given the unique federal concern in uniform enforcement of immigration laws iii

4 Case: , 11/01/2017, ID: , DktEntry: 23, Page 4 of The significant concerns underlying the federal government s exclusive jurisdiction over immigration enforcement tip the balance in favor of finding preempted civil immigration seizures violate the Fourth Amendment Non-federal officers lack of specialized immigration training renders them incompetent to make civil immigration seizures reasonably CONCLUSION iv

5 Case: , 11/01/2017, ID: , DktEntry: 23, Page 5 of 43 TABLE OF AUTHORITIES Cases Abel v. United States, 362 U.S. 217 (1962) Arizona v. United States, 567 U.S. 387 (2012)...passim Bostic v. Rodriguez, 667 F. Supp. 2d 591 (E.D.N.C. 2009) Buquer v. City of Indianapolis, 2013 WL (S.D. Ind. 2013) Campillo v. Sullivan, 853 F.2d 593 (8th Cir. 1988) Edward J. DeBartolo Corp. v. N.L.R.B., 463 U.S. 147 (1983)... 8 El Badrawi v. DHS, 579 F. Supp.2d 249 (D. Conn. 2008) Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) Garcia v. Taylor, 40 F.3d 299 (9th Cir. 1994) Glasgow v. Beary, 2 F. Supp. 3d 419 (E.D.N.Y. 2014) Holcomb v. Ramar, 2015 WL (E.D. Cal. 2015) INS v. Lopez-Mendoza, 468 U.S (1983) Ker v. California, 374 U.S. 23 (1963) Lunn v. Commonwealth, 78 N.E.3d 1143 (Mass. 2017)... 6 Miller v. United States, 357 U.S. 301 (1958) Miranda-Olivares v. Clackamas Cty., 2014 WL (D.Or. Apr. 11, 2014)... 4 Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015)... 4, 18 Morales v. Chadbourne, 996 F. Supp. 2d 19 (D. R.I. 2014) Moreno v. Napolitano, 213 F. Supp. 3d 999 (N.D. Ill. 2016)... 18, 19 Orellana v. Noble Cty., 230 F. Supp.3d 934 (D. Minn. 2017) Postal Tel.-Cable Co. v. Tonopah & Tidewater R. Co., 248 U.S. 471 (1919)... 8 Prieto v. Gulch, 913 F.2d 1159 (6th Cir. 1990) Printz v. United States, 521 U.S. 898 (1997) Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990)... 21, 24 Sanchez Ochoa v. Campbell, 2017 WL (E.D. Wa. July 31, 2017)... 7 Santos v. Frederick Cnty Bd. of Com rs, 725 F.3d 451 (4th Cir. 2013)... 4, 16, 26 Smith v. Kelly, 2012 WL (W.D. Wa. 2012) Terry v. Ohio, 392 U.S. 1 (1968) United States v. Brignoni-Ponce, 422 U.S. 873 (1975)... 23, 24 United States v. Di Re, 332 U.S. 581 (1948)... 10, 11 v

6 Case: , 11/01/2017, ID: , DktEntry: 23, Page 6 of 43 United States v. Forty Barrels & Twenty Kegs of Coca Cola, 241 U.S. 265 (1916)... 8 United States v. Hernandez-Moya, 353 Fed. Appx. 930, 2009 WL (5th Cir. 2009)... 24, 25 United States v. Jones, 701 F.3d 1300 (10th Cir. 2012) United States v. Juvenile Female, 566 F.3d 943 (9th Cir. 2001) United States v. Martinez-Fuerte, 428 U.S. 543 (1976) Vanke v. Block, 1998 WL (C.D. Cal. 1998)... 4 Vargas v. Swan, 854 F.2d 1028 (7th Cir. 1988) Virginia v. Moore, 553 U.S. 164 (2008)... 16, 20, 25 Statutes 8 U.S.C. 1103(a)(10)... 6, 7, 9, 14, 23 8 U.S.C. 1103(a)(11) U.S.C , 5, 13 8 U.S.C. 1231(a)(2)... 2, 5 8 U.S.C. 1252c... 6, 7, 9, 15 8 U.S.C. 1324(c)... 9, 13 8 U.S.C. 1357(a)(2)... 2, 5, 19 8 U.S.C. 1357(g) [INA Section 287(g)]...passim Regulations 8 C.F.R , 13, 19 8 C.F.R C.F.R , 19 8 C.F.R C.F.R C.F.R passim 8 C.F.R C.F.R C.F.R , 15, 23 vi

7 Case: , 11/01/2017, ID: , DktEntry: 23, Page 7 of 43 Constitutional Provisions U.S. Const., amend. IV...passim U.S. Const., amend. X Other Authorities 82 C.J.S. Statutes C.J.S. Statutes DHS, Guidance on State and Local Governments Assistance in Immigration Enforcement and related Matters, localassistance-immigration-enforcement.pdf... 8 ICE Policy , Issuing Detainers by ICE Officers (Apr. 2, 2017), 17, 19 Memorandum for John F. Shaw, Ass t Comm r, INS, from Maurice C. Inman, General Counsel, INS (Nov. 25, 1985) Memorandum for Joseph R. Davis, Ass t Director, FBI, from Douglas W. Kmiec, Ass t Att y Gen l, Office of Legal Counsel, Re: Handling of INS Warrants of Deportation in Relation to NCIC Wanted Person File (Apr. 11, 1989), 11, 12, 13, 23 Memorandum for Ass t U.S. Att y, S.D. Cal., from Teresa Wynn Roseborough, Dep. Ass t Att y Gen l, Office of Legal Counsel, Re: Assistance by State and Local Police in Apprehending Illegal Aliens (Feb. 5, 1996), 12, 13 Memorandum for the Att y Gen., from Jay S. Bybee, Ass t Att y Gen l, Office of Legal Counsel, Non-preemption of the authority of state and local law enforcement officials to arrest aliens for immigration violations 8 (April 3, 2002), 12, 13 vii

8 Case: , 11/01/2017, ID: , DktEntry: 23, Page 8 of 43 INTEREST OF THE AMICI CURIAE Amici curiae, listed in Addendum A, 1 are law professors who teach and research in the area of immigration law, constitutional law, criminal law and procedure, and human rights law, joined by immigration-focused civil rights organizations that advocate and practice in the area of immigration law. Amici include practitioners with extensive experience litigating issues arising under the Immigration and Nationality Act. Amici offer their understanding of the INA s allocation of and preemption of arrest authority, the role of administrative immigration warrants and Intergovernmental Service Agreements within the statutory scheme, and the application of the Fourth Amendment to civil immigration arrests and detention by state or local officers. This understanding is guided by amici s knowledge of historical practices and judicial decisions, and an analysis of the immigration enforcement system Congress created and its history. The Court s correct resolution of the issues presented here is of great importance to amici. All parties have consented to the filing of this amicus brief. 1 Amici curiae certify that no party or counsel for a party authored any portion of this brief or made a monetary contribution intended to fund its preparation or submission. Fed. R. App. P. 29(c)(5). No person other than amici curiae, their members, or their counsel have made such a monetary contribution. Id.

9 Case: , 11/01/2017, ID: , DktEntry: 23, Page 9 of 43 SUMMARY OF THE ARGUMENT 2 The Immigration and Nationality Act ( INA ) establishes a comprehensive statutory scheme for immigration enforcement. Congress carefully delineated arrest authority for civil immigration violations, strictly limiting the arrest authority of federal officials and even further limiting the authority of state and local ( nonfederal ) officials to preempt non-federal civil immigration arrests except in specifically enumerated circumstances. In general, absent an agreement pursuant to Section 287(g) of the INA, 8 U.S.C. 1357(g) (hereafter Section 287(g) ), and arrest authority under state law, only a trained ICE agent is permitted to exercise ICE s civil arrest and detention authority, as enacted by Congress under Sections 236, 241(a)(2), and 287(a)(2) of the INA. 8 U.S.C. 1226, 1231(a)(2), 1357(a)(2). An Intergovernmental Service Agreement (IGSA) detention contract does not confer any arrest or detention authority under the INA but is simply a mechanism for payment for detention space. Non-federal officials violate the Fourth Amendment when they make unauthorized civil immigration arrests or seizures. Congress s exclusive power to regulate immigration stems from the need for the nation to speak with one voice, 2 Amici curiae address only the merits of the issues presented and not the jurisdictional questions. 2

10 Case: , 11/01/2017, ID: , DktEntry: 23, Page 10 of 43 given immigration enforcement s potential impact on foreign relations. This federal interest tips the Fourth Amendment balance against preempted civil immigration arrests. Further, because non-federal officials lack training and practical competence in immigration law and enforcement, it is unreasonable and violates the Fourth Amendment for them to make civil immigration arrests. ARGUMENT The INA is Congress s comprehensive statutory regime regulating immigration and naturalization. Whether non-federal officials can prolong the detention of an individual otherwise entitled to release, based solely on an administrative immigration warrant and an IGSA detention contract, requires both an understanding of the structure of the INA and its careful delineation and allocation of arrest and detention authority, see Section I, infra, and an understanding of how administrative immigration warrants and IGSA detention contracts fit within that structure, see Section II, infra. This analysis in turn informs application of the Fourth Amendment to civil immigration arrests by nonfederal officers. See Section III, infra. I. THE SYSTEM CONGRESS CREATED CAREFULLY DELINEATES ARREST AUTHORITY FOR CIVIL IMMIGRATION VIOLATIONS. The continued detention by non-federal officials of an individual based on an administrative immigration warrant or detainer, after the grounds supporting an 3

11 Case: , 11/01/2017, ID: , DktEntry: 23, Page 11 of 43 initial criminal arrest have evaporated, is a new arrest for constitutional purposes. See e.g., Santos v. Frederick County Bd. of Com rs, 725 F.3d 451, (4th Cir. 2013); Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015). Likewise, denying a person held on criminal charges the opportunity to post bail and obtain release amounts to a second arrest for constitutional purposes. Miranda-Olivares v. Clackamas Cty., 3:12-CV ST, 2014 WL , at *9-*10 (D. Or. Apr. 11, 2014) (citing Vanke v. Block, Case No. CV DDP (SHx), 1998 WL (C.D. Cal 1998)). Understanding whether such seizures by non-federal officials are lawful requires review of the system Congress created for civil immigration arrests. Throughout the INA, Congress carefully limited the arrest authority of federal officials and even more narrowly restricted non-federal immigration arrests. A. Congress created a system that authorizes non-federal officials to make civil immigration arrests and detain non-citizens only in narrow, defined circumstances. The Supreme Court examined the system Congress created in Arizona v. United States, 567 U.S. 387 (2012). The INA authorizes federal officials to make a civil immigration arrest in the interior either (1) pursuant to an immigration arrest warrant, or (2) when the person is likely to escape before a warrant can be obtained and there is reason to believe the person has violated federal immigration laws. Arizona, 567 U.S. at (describing the federal statutory 4

12 Case: , 11/01/2017, ID: , DktEntry: 23, Page 12 of 43 structure for when it is appropriate to arrest an alien during the removal process ); see 8 U.S.C. 1226, 1231(a)(2), 1357(a)(2). The Supreme Court emphasized that the system Congress created requires civil immigration arrests be made by trained immigration officers. Id. at ; see also 8 C.F.R (c)(1) (requiring training for warrantless arrest authority); 287.1(g) (defining the required training); 287.5(e)(3) (requiring training to execute warrants); Form I- 200, available at Immigration and Customs Enforcement, 200_SAMPLE.PDF (Sept. 2016) (immigration arrest warrant directed to immigration officer[s] authorized pursuant to [INA and regulations] to serve warrants ); Form I-205, available at Immigration and Customs Enforcement, 205_SAMPLE.PDF (immigration warrant with similar direction). The authority of non-federal officials to make civil immigration arrests is even more strictly limited. Arizona, 567 U.S. at (citations omitted). Of the three limited circumstances in which state officers may perform the [civil arrest] functions of an immigration officer discussed by the Supreme Court in Arizona, only INA 287(g), 8 U.S.C. 1357(g) ( Section 287(g) ), could provide the scope of civil arrest authority that Defendants are systemically exercising. Section 287(g) permits cooperative agreements whereby non-federal officials determined by the 5

13 Case: , 11/01/2017, ID: , DktEntry: 23, Page 13 of 43 [DHS Secretary] to be qualified are authorized to perform [the] function of an immigration officer as to the investigation, apprehension, or detention of aliens in the United States. 8 U.S.C. 1357(g)(1); see, e.g., 8 C.F.R (b), 239.1, 241.2, 287.3, 287.5, (enumerating in detail the enforcement functions of an immigration officer). Section 287(g) requires these non-federal officials to receive[] adequate training regarding the enforcement of relevant Federal immigration laws and be subject to the direction and supervision of the [DHS Secretary]. 8 U.S.C. 1357(g)(2)-(3); Arizona, 567 U.S. at 409. Unauthorized non-federal civil immigration arrests cannot be justified as cooperation under Section 287(g)(10)(B) of the INA. 8 U.S.C. 1357(g)(10)(B). In each instance where Congress authorized non-federal enforcement of civil immigration laws, Congress expressly used the word authorize in relation to delegated arrest authority. 8 U.S.C. 1357(g)(1), (5); 8 U.S.C. 1103(a)(10); 8 U.S.C. 1252c; Lunn v. Commonwealth, 78 N.E.3d 1143, 1159 (Mass. 2017) (observing that [i]n those limited instances where the [INA] affirmatively grants authority to [non-federal] officers to arrest, it does so in more explicit terms than those in [8 U.S.C.] 1357(g)(10). ); see Arizona, 567 U.S. at 410 (classifying responding to detainers by providing notification of release rather than detention as an example of non-federal cooperat[ion] with the Attorney General permitted by the 8 U.S.C. 1357(g)(10)(B)). 6

14 Case: , 11/01/2017, ID: , DktEntry: 23, Page 14 of 43 In analyzing the congressional grants of civil arrest authority to non-federal officials, the Supreme Court correctly resisted the suggestion that continued detention based on an ICE request 3 might constitute non-federal cooperat[ion] with the Attorney General as permitted by 8 U.S.C. 1357(g)(10)(B). As described above, Section 287(g) was enacted (like 8 U.S.C. 1103(a)(10) and 1252c) in 1996 and created authority for written agreements authorizing civil immigration arrest authority to non-federal officers. 8 U.S.C. 1357(g)(1). But such agreements require direction and supervision from federal officials, and the training of non-federal officers. See Arizona, 567 U.S. at 409 (comparing 1357(g)(2) with 8 C.F.R (e)(3)). 4 Section 287(g)(10), on the other hand, was not an expansion of authority but instead a proviso 5 to the grant of authority under Sections 287(g)(1) through (9), 3 Here, the district court found that [n]othing in the record suggests that ICE requested or in any other way asked that Defendants arrest or detain Sanchez Ochoa. Sanchez Ochoa v. Campbell, -- F. Supp.3d --, 2017 WL , at *11 (E.D. Wa. July 31, 2017). But even had such a request been made, Defendants lacked authority under federal or state law to make a civil immigration arrest, as amici demonstrate here. 4 For non-federal officers to exercise the functions of immigration officers under the mass influx provision, 8 U.S.C. 1103(a)(10), similarly requires a detailed written agreement, as under Section 287(g), regarding the scope of authorized immigration enforcement functions, requisite training, and the limited duration of the authority. 28 C.F.R A proviso is a clause engrafted on a preceding enactment in order to restrain or modify the enacting clause or to except something from the operation of the statute which otherwise would have been within it. 82 C.J.S. Statutes 502. A proviso acts to restrain or modify the enacting clause, and not to enlarge it, or to confer a 7

15 Case: , 11/01/2017, ID: , DktEntry: 23, Page 15 of 43 clarifying that a 287(g) agreement is not necessary in order for non-federal officials to participate in immigration enforcement in ways they had previously been permitted, i.e., that do not involve the actual function of an immigration officer. 8 U.S.C. 1357(g)(1). Indeed, the DHS s own written guidance on Section 287(g)(10)(B), submitted in Arizona, 567 U.S. at 410, and cited by the United States in its briefing to the district court (ECF No. 26, at 7, 24), demonstrates that arrests based on administrative warrants or any other action that is the function of an immigration officer should not be understood as cooperation... in the identification, apprehension, detention, or removal of aliens contemplated by Section 287(g)(10)(B). DHS, Guidance on State and Local Governments Assistance in Immigration Enforcement and related Matters, at 13-15, (last visited Nov. 1, 2017). If this court were to adopt the expansive interpretation of Section 287(g)(10)(B) urged by the United States, it would effectively make Section 287(g) s requirement of an power. Id Section 287(g)(10) s role as a proviso is made clear by its opening language: Nothing in this subsection shall be construed.... See, e.g., Edward J. DeBartolo Corp. v. N.L.R.B., 463 U.S. 147, 149 n.2 (1983) (involving proviso stating nothing contained in such paragraph shall be construed. ); Postal Tel.-Cable Co. v. Tonopah & Tidewater R. Co., 248 U.S. 471, 474 (1919) (involving proviso stating that nothing in this Act shall be construed. ); United States v. Forty Barrels & Twenty Kegs of Coca Cola, 241 U.S. 265, 275 n.2 (1916) (involving proviso stating nothing in this act shall be construed. ). 8

16 Case: , 11/01/2017, ID: , DktEntry: 23, Page 16 of 43 agreement and training in order to exercise the function of an immigration officer meaningless. U.S. Amicus Br. at 3-4. Cooperating with immigration enforcement simply cannot be interpreted as the equivalent of exercising the actual functions of an immigration officer contemplated under Section 287(g). B. The INA makes clear that non-federal officials exercising the function of an immigration officer is subject to the limits of state and local law. Another common thread running through the INA is that each grant of arrest authority to non-federal officials is made subject to state or local law governing the duties and authorities of such officers. Under Section 287(g), for example, Congress permitted federal-state agreements to authorize non-federal officials to perform immigration enforcement functions, but only to the extent consistent with State and local law. 8 U.S.C. 1357(g)(1). Under 8 U.S.C. 1103(a)(10), the Attorney General is permitted to delegate enforcement authority to a local officer in the case of a mass immigration influx, but only with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving. Id. Title 8 U.S.C. 1252c grants authority to state and local law enforcement to make civil arrests of a convicted felon who illegally reenters the United States but only to the extent permitted by relevant State and local law. And Congress has delineated state law authority even in the criminal context. Title 8 U.S.C. 1324(c), which criminalizes 9

17 Case: , 11/01/2017, ID: , DktEntry: 23, Page 17 of 43 immigrant smuggling and harboring, grants authority to state and local law enforcement officials whose duty, presumably prescribed by local law, is to enforce criminal laws. Historical precedent for the proposition that any delegated authority to enforce immigration laws must be exercised in accordance with state or local law can be found in the 1882 statute discussed in Printz v. United States, 521 U.S. 898 (1997) Congress s first general immigration statute. Arizona, 567 U.S. at 422 (Scalia, J., dissenting). That statute permitted the federal government to enter into contracts authorizing state officials to take charge of the local affairs of immigration. Printz, 521 U.S. at 916. The statute was explicit, however, that the United States could only enter into contracts with such State... officers as may be designated for that purpose by the governor of any State. Id. (emphasis added in Printz). Thus, the state s chief executive officer retained control over state officials. The proposition that state or local officers enforcing federal law must also have local authority for their actions is well established in the criminal law context. In an unbroken line of decisions dating back to 1948, the Supreme Court has held that where federal law does not preclude enforcement by local officers, authority for the arrest must nonetheless be found in state or local law. See United States v. 10

18 Case: , 11/01/2017, ID: , DktEntry: 23, Page 18 of 43 Di Re, 332 U.S. 581 (1948); see also Miller v. United States, 357 U.S. 301 (1958); Ker v. California, 374 U.S. 23 (1963). Local officials thus must ascertain first whether federal authority for enforcement exists, and next whether state or local law also authorizes the action. Even during the period when it was hotly contested whether state and local law enforcement had authority to enforce civil immigration laws, criminal immigration laws, or both, 6 there was nonetheless agreement on one point: Whatever federal authority state officials had to enforce immigration law was subject to state-law restrictions on those officials arrest authority. A sequence of memoranda issued by the Department of Justice Office of Legal Counsel ( OLC ) demonstrates consensus on the necessity for state-law authority to make civil immigration arrests. In 1989 and again in 1996 the OLC opined that local officials lack federal authority to make civil immigration arrests. Memorandum for Joseph R. Davis, Ass t Director, FBI, from Douglas W. Kmiec, 6 The Supreme Court s decision in Arizona effectively ended the debate as to local officers authority to conduct civil immigration enforcement, holding that the INA specifies limited circumstances in which state officers may perform the functions of an immigration officer and rejecting the notion that state officers had inherent authority to enforce civil immigration laws beyond the system Congress created. Arizona, 132 S.Ct. at The Court left open the question of whether local enforcement of criminal immigration laws is similarly preempted, id. at , but tellingly cited Di Re for the proposition that the authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law. Id. (citing Di Re, 332 U.S. at 589). 11

19 Case: , 11/01/2017, ID: , DktEntry: 23, Page 19 of 43 Ass t Att y Gen l, Office of Legal Counsel, Re: Handling of INS Warrants of Deportation in Relation to NCIC Wanted Person File (Apr. 11, 1989) ( 1989 OLC memo ), 7 Warrants-of-Deportation-in-Relation-to-NCIC-Wanted-Person-File ; Memorandum for Ass t U.S. Att y, S.D. Cal., from Teresa Wynn Roseborough, Dep. Ass t Att y Gen l, Office of Legal Counsel, Re: Assistance by State and Local Police in Apprehending Illegal Aliens (Feb. 5, 1996) ( 1996 OLC memo ), In 2002 the OLC reversed course, concluding that local officials have inherent authority to make civil immigration arrests, even where federal authority is not explicitly conferred. Memorandum for the Att y Gen., from Jay S. Bybee, Ass t Att y Gen l, Office of Legal Counsel, Non-preemption of the authority of state and local law enforcement officials to arrest aliens for immigration violations 8 (April 3, 2002) ( 2002 OLC memo ), 7 The 1989 OLC memo specifically concluded that the FBI could not put administrative immigration warrants into the National Crime Information Center database. The database was limited to those warrants executable by any law enforcement official with general arrest powers, see 1989 OLC memo at 1 n.2, id. at 3, and administrative immigration warrants, even deportation warrants, did not necessarily establish probable cause of a crime but rather were for civil immigration enforcement, and therefore could not enable all state and local law enforcement officers to arrest the violator. 4-9; see also id. at 3 (citing Memorandum for John F. Shaw, Ass t Comm r, INS, from Maurice C. Inman, General Counsel, INS (Nov. 25, 1985) (describing INS warrants as civil or administrative in nature ); id. at 5 (quoting I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1983) (noting that deportation proceedings are purely civil actions). 12

20 Case: , 11/01/2017, ID: , DktEntry: 23, Page 20 of 43 (Later, the Supreme Court rejected this conclusion in Arizona in See supra note 6). While reaching different opinions as to what the federal government had authorized, these memoranda were consistent on one point arrest authority would have to satisfy any limitations placed by state or local law. See 1989 OLC memo at 4 n.11 (noting need for both federal and local authority); id. at 5; id. at 9 (citing Di Re, 332 U.S. at 589); 1996 OLC memo at 29 ( That the INA permits state police officers to make arrests and detentions, see, e.g. 8 U.S.C. 1324(c), does not mean that states must permit their police to do so. Rather, the INA enforcement authority of state police is subject to the provisions and limitations of state law. ); 2002 OLC memo at 2 (assuming for purposes of the memo that States have conferred on state police the necessary state-law authority.... ) (emphasis added). II. THE SPECIFIC ROLE OF I-200 ADMINISTRATIVE IMMIGRATION WARRANTS AND IGSA DETENTION CONTRACTS IN THE SYSTEM CONGRESS CREATED FOR IMMIGRATION ENFORCEMENT AND REMOVAL. The INA permits only designated, trained ICE officers to arrest and detain an individual for removal proceedings. 8 U.S.C. 1226(a); 8 C.F.R (b)(1). The I-200 administrative immigration warrant ( I-200 warrant ) forms the basis for detention throughout removal proceedings. See 8 C.F.R (b)(1); Form I- 200, supra p

21 Case: , 11/01/2017, ID: , DktEntry: 23, Page 21 of 43 Neither an immigration judge, a detached and neutral magistrate, nor a judicial officer issues the I-200 warrant; it is issued by designated supervisory ICE enforcement officers. 8 C.F.R (e)(2); Form I-200, supra p. 5; see El Badrawi v. DHS, 579 F.Supp.2d 249, 276 (D. Conn. 2008) (treating arrest pursuant to administrative immigration warrant as warrantless arrest after noting that warrant was signed by an ICE Agent intimately involved in the investigation and [n]o neutral magistrate (or even a neutral executive official) ever examined the warrant's validity ). Like an I-247 immigration detainer, the I-200 warrant does not contain a particularized showing of probable cause but rather contains checkboxes of boilerplate allegations, written in the alternative, which may or may not form the basis for an ICE officer s decision to seek arrest and detention. See Form I-200, supra p. 5; Form I-247A, available at Immigration and Customs Enforcement, 247A.pdf (Mar. 2017). Once in custody, only trained detention enforcement officers and immigration enforcement agents are authorized and designated to take and maintain custody of and transport any person who has been arrested. 8 C.F.R (c)(6). Like arrest generally, Section I.A. supra, non-federal officials authority to detain for civil immigration purposes is strictly limited. Arizona, 567 U.S. at (citations omitted). Absent a 287(g) agreement or a written agreement in the 14

22 Case: , 11/01/2017, ID: , DktEntry: 23, Page 22 of 43 event of a declared mass influx pursuant to 8 U.S.C. 1103(a)(10), Congress has not authorized non-federal officials to detain pending removal proceedings. Compare 8 U.S.C. 1357(g)(1) (authorizing trained non-federal officials to perform a function of an immigration officer in relation to... detention... ) and 28 C.F.R (d), (in the event of a declared mass influx authorizing trained non-federal officials to exercise any functions of [ICE] officers or employees defined in a written agreement) with 8 U.S.C. 1252c (authorizing detention of previously deported felons only for such period of time as may be required for [ICE] to take the individual into Federal custody... ). Under the system Congress created, an IGSA detention contract does not confer any arrest or detention authority to non-federal officials. See 8 U.S.C. 1103(a)(11)(A). 8 Under the INA, an IGSA detention contract is simply a mechanism by which ICE is authorized to make payments to a State or locality for the care of individuals housed in non-federal institutions. Id. To the extent it is not trained immigration officers maintain[ing] custody, 8 C.F.R (c)(6), then the non-federal officials detention authority must derive from another provision of the INA either a 287(g) agreement or mass influx agreement. 8 Like the INA provisions authorizing non-federal arrest authority, Congress enacted the IGSA detention contract provision in

23 Case: , 11/01/2017, ID: , DktEntry: 23, Page 23 of 43 Absent such an agreement, Congress has not authorized detention authority to nonfederal officials pending completion of removal proceedings. III. DEFENDANTS SEIZURES BASED ON AN ADMINISTRATIVE WARRANT VIOLATES THE FOURTH AMENDMENT. The Fourth Amendment issues presented by Defendants practice of arresting or otherwise seizing individuals based solely on I-200 warrants (and an IGSA detention contract) are intertwined with and informed by the federalism and preemption issues discussed above, in ways that Defendants and the United States do not acknowledge. The two-step Fourth Amendment analysis set forth in Virginia v. Moore demonstrates the infirmity of Defendants practice. 553 U.S. 164, 171 (2008) (first examining history to determine reasonableness of seizure, and if history is not conclusive, assessing, on the one hand, the degree to which [the seizure] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. ). A. The long, unbroken history that non-federal officials lack congressional authority to seize individuals for civil immigration enforcement makes Defendants seizure based on the I-200 warrant unreasonable under the Fourth Amendment. As discussed in Sections I.A. & I.B, there is a long, unbroken history that non-federal officials generally lack authority to seize individuals for civil immigration enforcement. Indeed, until 1996, the INA did not provide non-federal officials any authority to exercise the functions of an immigration officer under 16

24 Case: , 11/01/2017, ID: , DktEntry: 23, Page 24 of 43 any circumstance. See supra Section I.A & I.B.; Santos, 725 F.3d at 464 (holding non-federal officials seizure based on administrative warrant violated the Fourth Amendment, stating: Although the Supreme Court has not resolved whether local police officers may detain or arrest an individual for suspected criminal immigration violations, the Court has said that local officers generally lack authority to arrest individuals suspected of civil immigration violations. ). 9 Defendants try to distinguish its practice of honoring I-200 administrative warrants from I-247 immigration detainers, declaring [c]oncerns regarding I-247 immigration detainers are well founded. Dkt. 8-1, at 17. Yet, Defendants fail to acknowledge that the documents are nearly identical, compare Form I-200, supra p. 5, with Form I-247A, supra p. 14, offering the same boilerplate, nonparticularized allegations, and are now produced through the same process. ICE Policy , Issuing Detainers by ICE Officers, 2.4 (Apr. 2, 2017), ICE has a long history of requesting unlawful arrests through immigration detainers. For example, the detainers in use from April 1997 to December The United States reliance on Abel v. United States, 362 U.S. 217 (1960) is misplaced. U.S. Amicus Br. at 21. In Abel, the Court made abundantly clear that the constitutionality of the petitioner s arrest on an administrative immigration warrant is not entitled to our consideration in the circumstances before us, id. at 230, noting, repeatedly, that [a]t no time did petitioner question the legality of the administrative arrest procedure either as unauthorized or as unconstitutional. Id. at

25 Case: , 11/01/2017, ID: , DktEntry: 23, Page 25 of 43 allowed detainer-based detention grounded on nothing more than the initiation of an investigation into a detainee s immigration status. See Form I-247 (rev. 1997), available at Form I-247 (rev. 2010), available at Form I-247 (rev. 2011), available at Form I-247 (rev. 2012), available at see also Morales v. Chadbourne, 996 F. Supp. 2d 19, 29 (D. R.I. 2014), aff d 793 F.3d 208 (1st Cir. 2015) ( One needs to look no further than the detainer itself... The fact that an investigation had been initiated is not enough to establish probable cause because the Fourth Amendment does not permit seizures for mere investigations. ). Further, the detainers in use from April 1997 to August 2010 and June 2011 to December 2012 purported to require local detention, a practice that violates the Tenth Amendment. See Form I-247 (rev. 1997), available at Form I-247 (rev. 2011), available at Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014). Finally, detainer-based detention requests across decades (1997-present) regularly violate the INA. 10 Moreno v. Napolitano, 213 F. 10 Before 1997, the former INS did not use detainers to request detention. See Vargas v. Swan, 854 F.2d 1028, 1035 (7th Cir. 1988) (including copy of pre-1997 detainer form and discussing the federal government s position that detainers functioned as an internal administrative mechanism which merely serves to advise a receiving agency of the suspicion that the subject is deportable and is a comity-restrained notice document ). The Form I-247 requested notification of release, but nowhere did it purport to request or authorize continued detention. See Garcia v. Taylor, 40 F.3d 299, 304 (9th Cir. 1994) (finding nothing in the detainer letter that would allow, much less compel, the warden to do anything but release 18

26 Case: , 11/01/2017, ID: , DktEntry: 23, Page 26 of 43 Supp. 3d 999, 1009 (N.D. Ill. 2016) (finding detainer requests regularly exceeded immigration officers statutory authority); Orellana v. Noble Cty., 230 F. Supp. 3d 934, (D. Minn. 2017) (holding, based on Moreno, 213 F. Supp. 3d 999, that plaintiff s detainer violates the Fourth Amendment); see also Arizona v. United States, 567 U.S. 387, (preempting Arizona law that would permit nonfederal officers greater immigration arrest authority than the INA grants federal immigration officers). 11 Garcia at the end of his term of imprisonment ); Campillo v. Sullivan, 853 F.2d 593, 594 (8th Cir. 1988) (noting detainer was for notification purposes only and requested INS be notified within thirty days of Campillo s release ); Prieto v. Gulch, 913 F.2d 1159, 1164 (6th Cir. 1990) (noting detainer does [not] ask the warden to hold a petitioner for immigration officials). 11 Subsequent to Moreno, ICE enacted a policy requiring officers to issue an administrative warrant to accompany each detainer. ICE Policy No , 2.4 (Mar. 24, 2017, eff. Apr. 2, 2017). As the Supreme Court has noted, these administrative warrants must be executed by federal officers who have received training in the enforcement of immigration law. Arizona, 567 U.S. at 408 (citing 8 C.F.R (b) and 287.5(e)(3)); see also 8 C.F.R (b)(1) and 241.2(b) (requiring warrants to be served by federal immigration officers). Because detainers request that non-federal officers not authorized to execute administrative warrants make civil immigration arrests, detainers continue to be requests for warrantless arrests. Under the INA, warrantless arrests can only be made when the subject is likely to escape, Arizona, 567 U.S. at 408 (citing 8 U.S.C. 1357(a)(2)), and since no attempt is made to comply with this requirement, detainer requests continue to request non-federal officers make arrests unauthorized by the INA. See Moreno, 213 F. Supp.3d at 1009 (holding ICE s detainer requests exceeded warrantless arrest authority under 1357(a)(2)); Buquer v. City of Indianapolis, 2013 WL , at *8 (S.D. Ind. 2013) (in accordance with Arizona, finding absolutely no indication that Congress intended state and local law enforcement officers to retain greater authority to effectuate a warrantless arrest than do trained federal immigration officials ). 19

27 Case: , 11/01/2017, ID: , DktEntry: 23, Page 27 of 43 The long history of ICE s unlawful detention requests supports the district court s decision to grant Plaintiff s TRO on Fourth Amendment grounds. B. Defendants preempted civil immigration seizures are unreasonable given the unique federal concern in uniform enforcement of immigration laws. If ICE s history of unlawful detention requests does not resolve the Fourth Amendment question, the Court may balance the degree of intrusion caused by Defendants seizures based on I-200 warrants with the degree to which there is a legitimate governmental interest in the seizure. Moore, 553 U.S. at 171. In assessing the governmental interests at stake, this Court must consider the federal interest in pursuing immigration enforcement through the system Congress created, which limits non-federal authority, and emphasizes that non-federal officers must be trained when they are permitted to participate all of which is grounded in the underlying federal interest in speaking with one voice on matters of foreign affairs. Arizona, 567 U.S. at The significant concerns underlying the federal government s exclusive jurisdiction over immigration enforcement tip the balance in favor of finding preempted civil immigration seizures violate the Fourth Amendment. The Supreme Court s preemption decision in Arizona was grounded in the notion that the relationship of immigration enforcement to foreign relations requires enforcement decision-making be vested exclusively in the federal government to allow the United States to make decisions affecting foreign relations 20

28 Case: , 11/01/2017, ID: , DktEntry: 23, Page 28 of 43 with one voice. 567 U.S. at 409. As part of this system of federal control, Congress s comprehensive statutory system instructs when it is appropriate to arrest. Id. at 407. The substantial federal interest in speaking with one voice that underlies the removal system Congress created, id. at 407, means that civil immigration arrests and seizures made outside Congress s system are not only preempted but are also unreasonable as a matter of Fourth Amendment law. A Tenth Circuit decision, Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990), holding a state officer s criminal arrest made in Indian country violated the Fourth Amendment, provides some guidance for the Court s analysis. As with immigration, jurisdiction over Indian crimes in Indian country is determined by Congress, with non-federal officers having no jurisdiction absent explicit congressional authority (including tribal consent, pursuant to congressional statute). Id. at In Ross, even though federal officers could have made the arrest at issue, id. at 1353, the state officer had no jurisdiction to do so, and the Tenth Circuit held the extrajurisdictional arrest violated the Fourth Amendment. Id. at The Ross holding 12 can be understood in terms of the balancing of interests required by the Fourth Amendment. While the degree of intrusion is the same 12 While the Tenth Circuit retreated, in the wake of Moore, from a broader rule that all extrajurisdictional arrests are presumptively unreasonable, it has reaffirmed Ross as good law when confined to its unique factual circumstances a 21

29 Case: , 11/01/2017, ID: , DktEntry: 23, Page 29 of 43 whether a seizure is made by a federal or state officer, and the interest of both the federal government and the state in enforcing criminal laws should likewise be aligned, the underlying federal interest in exercising exclusive jurisdiction over Indian country, as an aspect of relations between the United States and the tribes, tips the balance and justifies treating preempted seizures as unreasonable under the Fourth Amendment. This same reasoning applies to immigration enforcement, given the strong federal foreign relations interest underlying the federal government s exclusive jurisdiction. 2. Non-federal officers lack of specialized immigration training renders them incompetent to make civil immigration seizures reasonably. Serving the federal interest in speaking with one voice on matters involving foreign relations is an emphasis on the training of officers who will make immigration arrests. As the Arizona Supreme Court pointed out, the immigration enforcement system Congress created requires a corps of trained immigration officers. 567 U.S. at 408. Only these trained federal officers, for example, can execute administrative arrest warrants issued under the INA. Id. And in the few limited circumstances in which Congress authorized non-federal officers to make civil immigration arrests, training of these officers is emphasized given the warrantless arrest by state police on federal tribal land. United States v. Jones, 701 F.3d 1300, 1312 (10th Cir. 2012). 22

30 Case: , 11/01/2017, ID: , DktEntry: 23, Page 30 of 43 significant complexities involved in enforcing federal immigration law. See id. at (discussing, inter alia, training requirements under 8 U.S.C. 1357(g); see also 28 C.F.R (imposing training requirements for implementing 8 U.S.C. 1103(a)(10)). The distinct competencies of trained federal immigration officers, on the one hand, and untrained non-federal officers whose primary role is criminal law enforcement on the other, justify different Fourth Amendment treatment when it comes to civil immigration arrests. Cf. United States v. Juvenile Female, 566 F.3d 943,948 (9th Cir. 2001) (distinguishing between Border Patrol agents and general law enforcement officers ); 1989 OLC memo at 1 n.2, 3 (distinguishing between immigration officers and law enforcement official[s] with general arrest powers ). The United States relies on Moore, and other cases holding that lack of statelaw arrest authority does not establish a Fourth Amendment violation, to argue that if a seizure is lawful under the Fourth Amendment when effectuated by a federal officer, then so too when state or local officers effect the same seizure, even if state law does not affirmatively authorize the arrest. U.S. Amicus Br. at 24. This argument ignores the difference in competency between federal immigration officers and non-federal police officers with no immigration training. It is well recognized, even after Moore, that the Fourth Amendment can be applied differently to different types of law enforcement officers. In United States 23

31 Case: , 11/01/2017, ID: , DktEntry: 23, Page 31 of 43 v. Brignoni-Ponce, 422 U.S. 873 (1975), for example, the Court relied on the training and experience of Border Patrol agents to find that a traffic stop based only on reasonable suspicion the vehicle contain[s] aliens who may be illegally in the country satisfied the Fourth Amendment. Id. at But the Supreme Court in Arizona acknowledged that non-federal officers detaining persons solely to verify their immigration status raises Fourth Amendment concerns. 567 U.S. at 413 (citations omitted); see also United States v. Hernandez-Moya, 353 Fed. Appx. 930, 934, 2009 WL at *3 (5th Cir. 2009) (holding that application of one [Fourth Amendment] test over the other [turns] on the type of law enforcement officers and the nature of the stop. Terry [v. Ohio, 392 U.S. 1 (1968)] analysis [requiring suspicion of criminal activity] applies to investigative stops made by local police officers, while Brignoni-Ponce applies to stops by roving border agents. ); United States v. Martinez-Fuerte, 428 U.S. 543, 567 (1976) (allowing Border Patrol checkpoints without particularized suspicion, but limiting its holding to such Border Patrol checkpoints); see also Ross, 905 F.2d at (applying Fourth Amendment to invalidate arrest in Indian country by state officer when arrest would have been valid if made by federal officer). Here, it is wrong to apply the Fourth Amendment standard that may be applicable to federal immigration officers when they make civil immigration seizures to Defendants. Because the competency and authority of Defendants is not 24

32 Case: , 11/01/2017, ID: , DktEntry: 23, Page 32 of 43 in immigration enforcement but rather in general criminal enforcement, their arrests are held to the bright-line rule pertaining to general criminal enforcement announced in Moore constitutionally reasonable arrests must be based on probable cause of a crime ( even a minor crime ) committed in an officer s presence 13 a rule that is administrable and consistent for police officers engaged in general criminal enforcement across the nation, both state and federal. 553 U.S. at 171; cf. Hernandez-Moya, 353 Fed. Appx. at 934, 2009 WL at *3 (applying Terry s rule, applicable to general criminal enforcement, to state and local police, while reserving Brignoni-Ponce s rule for Border Patrol agents engaged in immigration enforcement). 14 * * * 13 Post-Moore cases have rejected the notion that probable cause of a civil violation can satisfy the Fourth Amendment, because the Moore Court was concerned with the general authority of police to enforce criminal laws. E.g. Bostic v. Rodriguez, 667 F. Supp. 2d 591, 608 n. 6 (E.D.N.C. 2009); Glasgow v. Beary, 2 F. Supp. 3d 419, (E.D.N.Y. 2014); Holcomb v. Ramar, 2015 WL at *8 (E.D. Cal. 2015); Smith v. Kelly, 2012 WL , at *2-4 (W.D. Wa. 2012). 14 The distinct competencies of federal immigration officers and non-federal officers, and the different application of the Fourth Amendment to these two types of officers with respect to civil immigration arrests, explains why the United States s invocation of the collective-knowledge doctrine is inapposite. U.S. Amicus Br. At 24. Even if knowledge could be imputed, per the doctrine, from immigration officials to Defendants, that cannot change the Fourth Amendment standard applicable to Defendants. Because Defendants are generally not authorized to make civil immigration seizures, the imputation of knowledge amounting to probable cause of removability would not justify such arrests, and Defendants seizures must generally be assessed under the Moore rule requiring probable cause of a crime. 25