IN THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

IN THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT Case No. 3D17-452 L.T. Case Nos. F17-376; F17-1770 RECEIVED, 8/21/2017 5:04 PM, Mary Cay Blanks, Third District Court of Appeal DANIEL JUNIOR Appellant/Respondent, v. JAMES LACROIX, Appellee/Petitioner Motion for Leave to File Brief as Amicus Curiae Motion for Leave to File Overlong Brief CHAD A. READLER Acting Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation EREZ REUVENI Senior Litigation Counsel /s/ Vinita B. Andrapalliyal VINITA B. ANDRAPALLIYAL Trial Attorney Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin St. Washington, D.C. 20044 Tel: (202) 598-8085 Fax: (202) 305-7000 Email: Vinita.b.andrapalliyal@usdoj.gov

INTRODUCTION The United States of America seeks leave of the Court to file the attached brief as amicus curiae in the instant appeal, in accordance with Rule 9.370 of the Florida Rules of Appellate Procedure. See also 28 U.S.C. 517 ( [A]ny officer of the Department of Justice[] may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in... a court of a State... ). Appellant/Respondent Daniel Junior consents to the motion to file an amicus brief (per Michael Valdes, Esq.). Appellee/Petitioner James LaCroix, also consents (per Philip Reizenstein, Esq.). In the event the Court schedules oral argument in this appeal, the United States respectfully requests the opportunity to present its position at the argument. Further, the United States moves to file a brief that is seven pages in excess of the page limits specified in Rule 9.370, given the weighty and complex issues at stake. BACKGROUND This case involves the legality of federal immigration detainer requests and Miami-Dade County s decision to cooperate with one such request. An immigration detainer is a document by which U.S. Customs and Immigration Enforcement ( ICE ) provides notice of its intent to assume custody of a removable alien detained in the custody of another law enforcement agency, and 2

seeks state or local cooperation in those efforts. See 8 U.S.C. 1226; 1357(d); 8 C.F.R. 287.7(a) and (d). The circuit court decision examined the legality of Appellant/Respondent s cooperation with immigration detainer requests as applied to its detention of Appellee/Petitioner. The court did so by focusing on what it perceived to be the impact of Executive Order 13768, Enhancing Public Safety in the Interior of the United States, ( Executive Order, or Order ). The circuit court reasoned that the Order coerced Appellant/Respondent into complying with the federal government s detainer requests, in violation of the Tenth Amendment. Appellee/Petitioner s habeas petition also appears to generally challenge the legality of his detention under the federal government s detainer request. ARGUMENT A. Motion for Leave to File Brief as Amicus Curiae The United States s interest in this case generally stems from its broad, undoubted power over the subject of immigration.... Arizona v. United States, 567 U.S. 387, 394 (2012). In implementing that authority, the federal government seeks cooperation from state and local law enforcement authorities to facilitate the orderly transfer of removable aliens who are subject to administrative arrest warrants to federal custody when they are released from state or local custody. Immigration detainer requests are an important tool to promote public safety 3

because they are generally directed at aliens with pending criminal charges or convictions. Absent cooperation, removable aliens would be released back into the community. When criminal aliens are released from state or local custody, they have the opportunity to reoffend and abscond. Further, when authorities must apprehend criminal aliens at-large in the community, rather than in a controlled custodial setting, they face many risks and uncertainties, as does the alien arrested and members of the public. The United States places a high priority on requesting state and local authorities to lawfully cooperate with federal immigration detainer requests, in light of the serious public safety and immigration enforcement issues at stake. Given the circuit court s decision impacting the federal government s ability to cooperate with Miami-Dade County on immigration enforcement matters, the specific federal interest in this case is substantial. The United States has a strong interest in explaining the history and legality of its detainer policy. As our amicus brief will explain, ICE detainer requests seek the voluntary cooperation of state and local law enforcement officials based on probable cause determinations in the detainer and, as of April 2, 2017, an administrative warrant. This policy accords with relevant federal statutory law and constitutional principles, including under the Fourth and Tenth Amendments, especially, where, as here, the alien is subject to a final order of removal from the 4

United States. Moreover, as we will explain, the Executive Order relied on by the circuit court does not raise Tenth Amendment concerns. B. Motion for Leave to File Brief In Excess of the Page Limit The brief of the United States sets forth several issues of weighty, national importance that have not been briefed by the parties, requiring more than twenty pages to adequately explain. See Fla. R. App. P. 9.370(b) (setting a general twenty page limit for amicus briefs). These issues include the history and legality of immigration detainer requests; the permissible extent of Federal-State cooperation in immigration enforcement matters; and the scope of Executive Order 13,768, Enhancing Public Safety in the Interior of the United States, as interpreted by the Attorney General in a recent memorandum. Therefore, the United States respectfully requests an additional seven pages for their amicus brief. C. Motion for Leave to Participate in Oral Argument Finally, to the extent either party requests, or the Court independently orders, oral argument in this matter, the United States respectfully requests the opportunity to present oral argument at the Court s convenience. CONCLUSION For the foregoing reasons, the United States requests leave to file the attached amicus brief and appear at any oral argument scheduled in the appeal. 5

Respectfully submitted, Dated: August 21, 2017 CHAD A. READLER Acting Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation EREZ REUVENI Senior Litigation Counsel /s/ Vinita B. Andrapalliyal VINITA B. ANDRAPALLIYAL Trial Attorney Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin St. Washington, D.C. 20044 Tel: (202) 598-8085 Fax: (202) 305-7000 Email: Vinita.b.andrapalliyal@usdoj.gov 6

CERTIFICATE OF SERVICE Undersigned counsel certifies that a true and correct copy of the foregoing motion was served by email to: Philip Reizenstein, Esq. 2828 Coral Way, Suite No. 540 Miami, FL 33145 Email: philip@miamicriminallaw.net Kristen Kawass, Esq. 780 Tamiami Canal Road Miami, FL 33144 Email: kristin@kawasslaw.com Michael B. Valdes, Esq. Stephen P. Clark Center 111 N.W. 1 st Street, Suite 2810 Miami, Florida 33128 Email: mbv@miamidade.gov /s/ Vinita B. Andrapalliyal Trial Attorney U.S. Department of Justice 7

EXHIBIT 1

IN THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT Case No. 3D17-452 L.T. Case Nos. F17-376; F17-1770 DANIEL JUNIOR Appellant/Respondent, V. JAMES LACROIX, Appellee/Petitioner Amicus Curiae Brief of the United States CHAD A. READLER Acting Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation EREZ REUVENI Senior Litigation Counsel /s/ Vinita B. Andrapalliyal VINITA B. ANDRAPALLIYAL Trial Attorney Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin St. Washington, D.C. 20044 Tel: (202) 598-8085 Fax: (202) 305-7000 Email: Vinita.b.andrapalliyal@usdoj.gov

TABLE OF CONTENTS INTRODUCTION... 1 LEGAL BACKGROUND... 2 A. Immigration Detainers... 5 B. Miami-Dade s Policy... 7 C. LaCroix s Detainer... 7 D. Executive Order 13768... 8 i. The Attorney General s Memorandum... 10 ARGUMENT... 11 A. The federal immigration scheme expressly contemplates State and local cooperation with immigration detainers.... 12 B. Detainers are voluntary and thus comply with the Tenth Amendment.... 15 C. Detainers are based on probable cause that the alien is removable and are otherwise reasonable. Thus, they raise no Fourth Amendment concerns.... 21 D. The Executive Order does not apply to Miami-Dade s decision to cooperate with federal immigration requests and raises no Tenth Amendment concern.... 16 i. The AG Memorandum Clarifies that the Executive Order Does Not Reach the County s Decision to Cooperate with Detainers.... 17 ii. The AG Memorandum s Interpretation is Conclusive.... 19 CONCLUSION... 27 i

TABLE OF AUTHORITIES Cases Abel v. United States, 362 U.S. 217 (1960)... 24 Andrews v. State, 962 So. 2d 971 (Fla. Dist. Ct. App. 2007)... 26 Arizona v. United States, 567 U.S. 387 (2012)... 2, passim Arkansas v. Sullivan, 532 U.S. 769 (2001)...25 Buquer v. City of Indianapolis, 2013 WL 1332158 (S.D. Ind. Mar. 28, 2013)...14 Bldg. & Const. Trades Dep t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002)... 17 Comm. for Immigrant Rights of Sonoma Cnty. v. Cnty. of Sonoma, 644 F. Supp. 2d 1177 (N.D. Cal. 2009)... 6 De La Paz v. Coy, 786 F.3d 367 (5th Cir. 2015)... 23 Galarza v. Szalcyk, 745 F.3d 634 (3d Cir. 2014)... 15 Gerstein v. Pugh, 420 U.S. 103 (1975)... 23 Gonzalez v. ICE, No. 13-4416, 2017 WL 2559616 (C.D. Cal. June 12, 2017)... 23 Gregory v. Ashcroft, 501 U.S. 452 (1991)... 16 ii

Henderson v. Simms, 223 F.3d 267 (4th Cir. 2000)... 26 I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999)... 20 Illinois v. Andreas, 463 U.S. 765 (1983)... 24 Immigration & Naturalization Servs. v. Lopez Mendoza, 468 U.S. 1032 (1984)... 23 Killmon v. City of Miami, 199 F. App'x 796 (11th Cir. 2006)... 24 Lopez v. INS, 758 F.2d 1390 (10th Cir. 1985)... 23, 24 Marshall v. Barlow s, Inc., 436 U.S. 307 (1978)... 23 Martinez-Medina v. Holder, 673 F.3d 1029 (9th Cir. 2011)... 26 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012)...14 Miranda-Olivares v. Clackamas Cnty., No. 12-cv-2317-ST, 2014 WL 1414305 (D. Or. Apr. 11, 2014)... 22 Moody v. Daggett, 429 U.S. 78 (1976)... 15 Moreno v. Napolitano, 213 F. Supp. 3d (N.D. Ill. 2016)... 22 N.Y. v. United States, 505 U.S. 144 (1992)... 20, 22 iii

People v. Xirum, 993 N.Y.S.2d 627 (N.Y. Sup. Ct. 2014)... 22 Ricketts v. Palm Beach Cnty. Sherriff, 985 So. 2d 591... 7 Santos v. Frederick Cnty. Bd. of Comm rs, 725 F.3d 451 (4th Cir. 2013)... 14, 22, 25 Smith v. State, 719 So. 2d 1018 (Fla. Dist. Ct. App. 1998)... 25 Soldal v. Cook Cnty., 506 U.S. 56 (1992)... 25 Soliman v. U.S. ex rel. INS, 296 F.3d 1237 (11th Cir. 2002)... 8 Soriano-Jarquin v. U.S, 492 F.3d 495 (4th Cir. 2007)... 22 South Dakota v. Dole, 483 U.S. 203 (1987)... 20 State v. Rodriguez, 317 Or. 27 (1993)... 24 Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434 (1995)... 19 Themeus v. U.S. Dep't of Justice, 643 Fed. App x 830 (11th Cir. 2016)... 5 United States v. Cardona, 903 F.2d 60 (1st Cir. 1990)... 26 United States v. Comstock, 560 U.S. 126 (2010)... 25 iv

United States v. Female Juvenile, A.F.S., 377 F.3d 27 (1st Cir. 2004)... 15 United States v. Hensley, 469 U.S. 221 (1985)... 24 United States v. Lucas, 499 F.3d 769 (8th Cir. 2007)... 26 United States v. Ovando-Garzo, 752 F.3d 1161 (8th Cir. 2014)... 14, 22 United States v. Phillips, 834 F.3d 1176 (11th Cir. 2016)... 25 United States v. Quintana, 623 F.3d 1237 (8th Cir. 2010)... 14 United States v. Uribe-Rios, 558 F.3d 347 (4th Cir. 2009)... 15 Utoh v. U.S. Atty. Gen., 192 F. App'x 928 (11th Cir. 2006)... 3 Virginia v. Moore, 553 U.S. 164 (2008)... 26 Voorhees v. State, 699 So.2d 602 (Fla. 1997)... 24 Whren v. United States, 517 U.S. 806 (1996)... 26 STATUTES The Immigration and Nationality Act of 1952, as amended: 8 U.S.C. 1101... 2 8 U.S.C. 1101(a)(13)(A)... 21 v

8 U.S.C. 1103... 6 8 U.S.C. 1103(a)(1)... 19 8 U.S.C. 1103(a)(11)(B)... 4 8 U.S.C. 1226... 7, 18 8 U.S.C. 1226(a)... 2, 3, 12 8 U.S.C. 1226(c)(1)... 3 8 U.S.C. 1231(a)(1)(A)... 3 8 U.S.C. 1231(a)(2)... 3 8 U.S.C. 1357(a)(1)... 3 8 U.S.C. 1357(g)... 4 8 U.S.C. 1357(g)(1)... 4 8 U.S.C. 1357(g)(10)... 12 8 U.S.C. 1373(a)... 10, passim 8 U.S.C. 1373(b)... 10, passim 28 U.S.C. 512... 19 28 U.S.C. 517... 2 Florida State Annotations: Section 90.202(5), (12)...8 Section 901.18... 24 vi

Rules: Fla. R. App. P. 9.370... 2 REGULATIONS 8 C.F.R. 287.7... 5 8 C.F.R. 287.7(a)... 12, 15, 18 8 C.F.R. 287.7(d)... 6 28 C.F.R. 0.5(c)... 19 vii

INTRODUCTION To help protect the American people from criminal acts and recidivism, the United States prioritizes removal of illegally present aliens who have committed crimes. As with many law enforcement priorities of national scope such as counterterrorism, drug trafficking, and human trafficking the federal and local governments work cooperatively in this context by sharing information, engaging in joint operations, and pooling resources. Contrary to several federal courts, in this case, Judge Hirsch of the circuit court, declared unconstitutional an aspect of this federal-state cooperation the use of immigration detainers which has operated successfully for years. United States Department of Homeland Security ( DHS ) issues detainers to local law enforcement for illegal aliens who have committed crimes and who can therefore be lawfully detained and removed by the federal government. If local law enforcement voluntarily cooperates, then the criminal alien is briefly held by local authorities at the conclusion of the alien s local sentence, which ensures that federal officials can safely conduct lawful apprehension and removal procedures. In this case, Mr. James LaCroix had been apprehended by Miami-Dade law enforcement as a habitual traffic offender a felony under Florida law that by definition requires a pattern of recidivism of serious offenses. Under federal law, Mr. LaCroix could be lawfully detained and removed from the United States. 1

Accordingly, ICE issued a detainer, which resulted in Mr. LaCroix being held for approximately 24 additional hours, safely apprehended by ICE, and removed. Nothing in this system of federal-state cooperation violates the Tenth Amendment, the Fourth Amendment, or any other federal law. The United States submits its brief as amicus curiae to explain the federal laws and interests at issue in this appeal and to urge this Court to reverse the flawed order below. Fla. R. App. P. 9.370; 28 U.S.C. 517. To the extent this Court finds that Appellee s habeas petition is not moot or otherwise deficient, it should conclude that the County s decision to cooperate with Mr. LaCroix s detainer does not violate federal law. LEGAL BACKGROUND The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. Arizona v. United States, 567 U.S. 387, 394 (2012). Congress codified federal power over immigration in the Immigration and Nationality Act ( INA ), 8 U.S.C. 1101 et seq., including the Executive s preexisting authority to interview, arrest, detain, and remove aliens from the United States. First, on a warrant issued by the [Secretary of Homeland Security], an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. 8 U.S.C. 1226(a). Further, the [Secretary] shall take into 2

custody any alien who has committed certain criminal offenses when the alien is released. See 8 U.S.C. 1226(c)(1). Where an alien [ha]s [been] ordered removed, the [Secretary] shall remove the alien from the United States within a period of 90 days (the removal period ), 8 U.S.C. 1231(a)(1)(A), and an alien subject to a final order of removal shall be detained pending effectuation of that order. 1 See 8 U.S.C. 1231(a)(2). To facilitate the arrest and detention of removable aliens, the INA allows immigration officers to issue administrative warrants for arrest or removal of an alien, when probable cause exists to do so, without any requirement that a magistrate or other judge review the warrant, 8 U.S.C. 1226(a). The INA further permits immigration officers, without a warrant, to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States, 8 U.S.C. 1357(a)(1), and to arrest aliens if there is reason to believe they are illegally present and likely to escape before a warrant can be obtained. Id. at 1357(a)(2). In detailing the Department of Homeland Security s (DHS s) arrest and detention authorities, the INA also contemplates formal and informal State and local cooperation with federal immigration enforcement. Formally, Congress has 1 In 2002, Congress passed the Homeland Security Act, which abolished the Immigration and Naturalization Service (INS) and transferred many of its functions to the Department of Homeland Security. Utoh v. U.S. Atty. Gen., 192 F. App'x 928, 930 n.3 (11th Cir. 2006). 3

authorized DHS, of which ICE is a component agency, to enter into cooperative agreements with States and localities. See 8 U.S.C. 1357(g). Under these agreements, appropriately trained and qualified State and local officers may perform specified immigration law enforcement functions relating to the investigation, apprehension, and detention of aliens. 8 U.S.C. 1357(g)(1) (9). Congress has also authorized the Secretary of Homeland Security to enter into cooperative agreements with any State, territory, or political subdivision thereof, in order to establish acceptable conditions of confinement and detention services for removable aliens in ICE s custody. See 8 U.S.C. 1103(a)(11)(B). Even in the absence of a written agreement, State and local officers may communicate with the [Secretary] regarding the immigration status of any individual, or otherwise [] cooperate with the [Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. Id. 1357(g)(10). Examples of lawful cooperation include State and local authorities (1) participating in joint task forces with federal officers, (2) providing operational support in executing a warrant, (3) allowing federal immigration officials to gain access to detainees held in State or local facilities, (4) holding an alien in custody so that the federal government can effectuate an arrest, (5) responding to requests for information about when an alien will be released from custody, and (6) requesting immigration status information from aliens and sharing 4

that information with federal officials. 2 See DHS, Guidance on State and Local Governments Assistance in Immigration Enforcement and Related Matters (Sept. 21, 2011) (DHS Guidance), http://www.dhs.gov/xlibrary/assets/guidance-statelocal-assistance-immigration-enforcement.pdf. These cooperative efforts are critical to facilitating federal processing of the hundreds of thousands of aliens arrested for immigration violations each year. A. Immigration Detainers States and localities often cooperate with federal immigration enforcement by responding to requests for assistance, which are often contained in federal immigration detainers. Immigration detainers are requests by which DHS provides notice of its intent to assume custody of a removable alien detained in the custody of another law enforcement agency and seeks state or local cooperation in those efforts. Requested cooperation can include notifying DHS of the alien s release date and, if appropriate, holding the alien for up to, but no more than, 48 hours until DHS can take custody. 3 See 8 C.F.R. 287.7; see also Themeus v. U.S. Dep't of Justice, 2 The INA also recognizes the importance of the reciprocal exchange of immigration-related information between the federal government and States and localities. See 8 U.S.C. 1373. 3 Contrary to the circuit court s statement, a decision to cooperate with any and all immigration detainer requests does not result in individuals being held in state or local facilities until such time if any as ICE comes calling for them. Circuit Court Order, at 4. Rather, the period of time for which a state or local jurisdiction may hold an individual pursuant to a detainer is limited by regulation to a period 5

643 Fed. App x 830, 832 n.1 (11th Cir. 2016) (citing 8 C.F.R. 287.7(a)). 4 The Department s current detainer form, the Form I-247A (Immigration Detainer Notice of Action), sets forth the basis for the agency s determination that it possesses probable cause to believe that the subject is a removable alien.earlier this year, ICE updated its detainer policy and DHS created a new detainer form, Form I-247A. See ICE Policy No. 10074.2 (April 2, 2017), at https://www.ice.gov/detainer-policy. The new detainer form explains the basis of DHS s finding of probable cause to believe the subject is a removable alien based upon: (1) a final order of removal against the alien; 5 (2) the pendency of ongoing removal proceedings against the alien; (3) biometric confirmation of the alien s identity and a records match in federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks lawful immigration status or, notwithstanding such status, is removable under not to exceed 48 hours, excluding Saturdays, Sundays, and holidays, 8 C.F.R. 287.7(d), and by recent policy to a period not to exceed 48 hours in any instance. ICE Detainer Policy (April 2, 2017), available at https://www.ice.gov/detainerpolicy. 4 The sources for this authority are found in various statutes, including 8 U.S.C. 1103, 1226, 1357, and 1231. See generally Comm. for Immigrant Rights of Sonoma Cnty. v. Cnty. of Sonoma, 644 F. Supp. 2d 1177, 1199 (N.D. Cal. 2009). 5 Prior versions of the detainer form, including that under which LaCroix was detained, also included a probable cause finding that he was subject to a final order of removal. 6

Federal immigration law; or (4) the alien s voluntary statements to an immigration officer, or other reliable evidence indicating that the alien either lacks lawful immigration status or, notwithstanding such status, is removable. 6 ICE s current policy requires all ICE detainers to be accompanied by a signed administrative warrant of arrest issued pursuant to 8 U.S.C. 1226 or 1231(a). B. Miami-Dade s Policy Florida law provides that localities may, if they choose, cooperate with federal immigration detainer requests. See, e.g., Ricketts v. Palm Beach Cnty. Sherriff, 985 So. 2d 591, 592 93 (Fla. 4th DCA). The County s current policy permits cooperation with ICE on immigration detainer requests to the extent permissible by law without requiring federal reimbursement provided that the federal government show probable cause on all immigration detainers. App. Br. at 9. C. LaCroix s Detainer LaCroix s detainer was issued before the County s new policy was implemented. The detainer sought the County s cooperation in maintaining LaCroix in custody 6 The Form I-247A also contains a checkbox, not at issue in this case, whereby DHS or a sub-agency determines that an alien is wanted by a State or local entity for prosecution or other similar investigation and then transfers the alien to [State or local] custody for a proceeding in circumstances under which, upon the completion of the proceeding or investigation... DHS intends to resume custody of the alien to complete processing and/or make an admissibility determination. DHS Detainer Form I-247A (Box 2). Box 2 does not require an articulation of probable cause. 7

for a period NOT TO EXCEED 48 HOURS beyond the time when he[] would otherwise have been released from the County s custody and explained that probable cause existed to do so because (1) LaCroix was under a final order of removal, and (2) biometric confirmation of LaCroix s identify and records check of federal databases affirmatively indicated that he either lacked immigration status or, notwithstanding such status, is removable under U.S. immigration law. R. at 32. As the County notes, LaCroix was held in its custody for approximately 24 hours under the detainer before he was transferred to DHS custody. Appellant s Br., at 14. LaCroix was removed from the United States and returned to Haiti on July 18, 2017. 7 Ex. A, Warrant of Removal/Deportation. D. Executive Order 13768 The President signed Executive Order 13,768, Enhancing Public Safety in the Interior of the United States, on January 25, 2017. 82 Fed. Reg. 8,799 (Jan. 30, 2017) ( Executive Order ). The Executive Order seeks to [e]nsure the faithful execution of the immigration laws, including the INA. See id. 2(a), 82 Fed. Reg. at 8,799. 7 The United States agrees with the County that LaCroix s petition appears to be moot, for the reasons set forth by the County, as well as LaCroix s removal from the country. See Soliman v. U.S. ex rel. INS, 296 F.3d 1237, 1243 (11th Cir. 2002). The United States requests that the Court take judicial notice of the fact of LaCroix s removal, verified by the attached notice, on the basis that the removal is an official ICE action and not subject to dispute because it is capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned. Fla. Stat. Ann. 90.202(5), (12) (West). 8

It sets forth several policies and priorities regarding enforcement of federal immigration law within the United States. The Order likewise instructs federal officials, including the Secretary of Homeland Security and the Attorney General, and the Director of the Office of Management and Budget ( OMB, to use all lawful means to enforce those laws. See id. 1, 4, 82 Fed. Reg. at 8,799 800. As permitted by the INA, the Executive Order establishes priorities regarding aliens who are subject to removal from the United States under the immigration laws. Id. 5, 82 Fed. Reg. at 8,800. Several provisions of the Order instruct federal officials to take actions directing future conduct. Such provisions include instructions to promulgate certain regulations within one year, to take all appropriate action to hire additional immigration officers, to seek agreements with state and local officials under Section 287(g) of the INA (referred to above), to develop a program to ensure adequate prosecution of criminal immigration offenses, and to establish an office to provide certain services to victims of crimes committed by removable aliens. Id. 6, 7, 8, 11, 13, 82 Fed. Reg. at 8,799 802. Throughout, the Order specifies that federal officials are to take these actions as permitted by law or as consistent with law. Id. 7, 8, 9(a), 10(b), 12, 14, 17, 18(b), 82 Fed. Reg. at 8,799 802. Section 9 of the Executive Order establishes the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a 9

State, shall comply with 8 U.S.C. 1373. Section 1373, in relevant part, prohibits states and localities from adopting laws or policies that prohibit[] or in any way restrict the ability of state and local officers to cooperate with federal officials by sending and receiving information regarding the citizenship or immigration status, lawful or unlawful, of any individual, or maintaining and exchanging such information. 8 U.S.C. 1373(a), (b). Section 9(a) directs federal agencies to achieve that policy: In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law. Id. 9(a), 82 Fed. Reg. at 8,801. Section 9 also instructs the Director of OMB to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction. 8 Id. 9(c), 82 Fed. Reg. at 8,801. i. The Attorney General s Memorandum 8 Finally, the Executive Order directs the Secretary of Homeland Security and the Attorney General to report on their progress in implementing the Order, first within 90 days of the date of [the] order and again within 180 days of the date of [the] order. Id. 15, 82 Fed. Reg. at 8,802. 10

On May 22, 2017, the Attorney General issued a Memorandum ( AG Memorandum ) concerning the implementation of Section 9 of the Executive Order. Office of the Att y Gen., Implementation of Executive Order 13768 (May 22, 2017), available at https://www.justice.gov/opa/press-release/file/968146/download; Exec. Order No. 13,768 ( Executive Order ), 82 Fed. Reg. 8,799 8,803 (Jan. 30, 2017). The AG Memorandum sets forth the Attorney General s conclusive interpretation of the scope of the grant-eligibility provision in Section 9(a) of the Executive Order. The Memorandum provides (1) that the grant-eligibility provision applies solely to federal grants administered by the Department of Justice or the Department of Homeland Security [ DHS ], and not to other sources of federal funding[,] (2) that the Department of Justice ( DOJ ) will require jurisdictions applying for certain DOJ-administered grants to certify their compliance with federal law, including 8 U.S.C. 1373, and (3) that only jurisdiction[s] that fail[] to certify compliance with section 1373 will be ineligible to receive [an] award[]. AG Mem. at 1 2. ARGUMENT The County s decision to cooperate with ICE s immigration detainer as to LaCroix is lawful. The detainer raises no preemption or Tenth Amendment concerns; the Executive Order raises no separate Tenth Amendment concerns, not least because the AG Memorandum makes clear that the Order does not reach jurisdictions that choose not to cooperate with detainers; and the detainers are fully 11

compliant with the Fourth Amendment. 9 A. The federal immigration scheme expressly contemplates State and local cooperation with immigration detainers. Federal law clearly allows and does not preempt the County s cooperation with federal immigration enforcement through its detainer policy at issue in this appeal. As noted, even in the absence of a formal agreement, any officer or employee of a state or political subdivision of a state may communicate with the [Secretary of Homeland Security]regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States, and may otherwise cooperate with the [Department of Homeland Security] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. 8 U.S.C. 1357(g)(10). Further, governing statutes and regulations authorize DHS to seek assistance from state and local officers by issuing detainers that request that states or localities transfer such aliens to the federal government. Id. 1226(a), 1357(d); 8 C.F.R. 287.7(a). Moreover, as the Supreme Court has explained, state or local cooperation with a detainer is consistent with the INA because it involves permissible cooperation 9 The United States takes no position on the County s contention that under Florida law, the Court lacks jurisdiction over LaCroix s petition because federal courts have exclusive jurisdiction over challenges to detention under an immigration detainer. See Appellants Br., at 22 30. In any event, the County s cooperation with the immigration detainer conforms to applicable federal law. 12

under 8 U.S.C. 1357(g)(10), not a unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government. Arizona, 567 U.S. at 410. Indeed, a detainer is itself a request... from the Federal Government to a state or locality to assist the federal government s efforts to take a particular alien into custody, id., by either informing the federal government about an alien s impending release, or, in some circumstances, holding the alien for a short time so that the federal government can effectuate custody in an orderly manner. See Guidance on State and Local Governments Assistance in Immigration Enforcement and Related Matters at 7-8, 13-14, available at https://www.dhs.gov/sites/default/files/publications/guidancestate-local-assistance-immigration-enforcement.pdf. The ICE request initiates and cabins any State or local cooperation through the direction and guidance of federal officials charged with implementing and enforcing the immigration laws. Id. Thus, local assistance is rendered within any parameters set by DHS [and] DHS can exercise control over enforcement and has the flexibility to respond to changing considerations. See id. at 8. Since Arizona, federal appellate courts have approved state cooperation with immigration enforcement, including through detention when requested by federal officials or authorized by federal statute. Courts have concluded that such cooperation does not violate the Fourth Amendment or preemption principles when 13

at the direction or request of the Federal government. Santos v. Frederick Cnty. Bd. of Comm rs, 725 F.3d 451, 465-67 (4th Cir. 2013) (recognizing that Court had upheld detention by state officer when at ICE s express direction ); accord United States v. Ovando-Garzo, 752 F.3d 1161, 1164 65 (8th Cir. 2014) ( no written agreement is required for a state official to cooperate with the Attorney General in identifying, apprehending, and detaining any individual unlawfully present in the United States so long as the actions are not unilateral ); see also United States v. Quintana, 623 F.3d 1237, 1242 (8th Cir. 2010) (holding that a state officer was authorized under Section 1357(g)(10)(B) to detain an alien at DHS s behest until DHS could take him into custody the following day). 10 Thus, Federal law does not preempt a state s authority to continue detaining an alien beyond the expiration of his state sentence for violations of civil immigration law, at least where such arrests respond to requests for such assistance from the 10 While some courts have found certain state and local immigration arrests to be preempted as unlawful, those decisions are authorities are distinguishable because they involved state or local law enforcement authorities acting unilaterally. See Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (affirming preliminary injunction prohibiting county sheriff from unilaterally making civil immigration arrests as ICE had revoked his department s 287(g) agreement with ICE permitting him to do so); Buquer v. City of Indianapolis, No. 1:11-cv-00708-SEB-MJD, 2013 WL 1332158, at *10 11 (S.D. Ind. Mar. 28, 2013) (finding State law preempted where it provided state and local officers unilateral discretion to make immigration arrests). Here, LaCroix was detained following a specific request, approval, or other instruction from the Federal Government in the form of the immigration detainer request. Arizona, 567 U.S. at 410. Therefore, Lacroix s detention does not run afoul of the holding in Arizona. 14

federal government and are otherwise lawful under the Fourth Amendment. See Arizona, 567 U.S. at 410 (discussing examples). That is precisely what a state or local law enforcement officer does when complying with the federal government s request contained in an immigration detainer or general inquiries concerning immigration status. That a state or local law creates a systematic policy of cooperation, rather than cooperating on a case-by-case basis, does not render such cooperation impermissible. See id., 567 U.S. at 412 13. B. Detainers are voluntary and thus comply with the Tenth Amendment. Further, immigration detainers, including the one at issue here, raise no Tenth Amendment concerns, because they are not mandatory. See generally Moody v. Daggett, 429 U.S. 78, 80 n.2 (1976) (noting in the context of criminal detainers that where, as here, two autonomous jurisdictions are involved,... a detainer is a matter of comity ). Rather, as the governing regulation and case law indicate, they are requests upon State law enforcement to voluntarily assist Federal immigration authorities. See 8 C.F.R. 287.7(a); accord Galarza v. Szalcyk, 745 F.3d 634, 644 (3d Cir. 2014) ( [R]eading 287.7 to mean that a federal detainer filed with a state or local [agency] is a command to detain an individual on behalf of the federal government, would violate the anti-commandeering doctrine of the Tenth Amendment. ); United States v. Uribe-Rios, 558 F.3d 347, 350 n.1 (4th Cir. 2009) (similar); United States v. Female Juvenile, A.F.S., 377 F.3d 27, 35 (1st Cir. 2004) 15

(similar). Because the federal government may not commandeer states and localities in no prevents States and localities (assuming no State law to the contrary) from using the powers... reserved to the States, U.S. CONST. AM. X, to cooperate, on a state or locality-wide basis, with detainers. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). ICE s detainer to the County does not run afoul of the Tenth Amendment. C. The Executive Order does not apply to Miami-Dade s decision to cooperate with federal immigration requests and raises no Tenth Amendment concern. The Executive Order does not implicate the Tenth Amendment here and, indeed, does not even reach a jurisdiction s decision to cooperate with detainers. Rather, Section 9(a) of the Order provides, in relevant part, that the Attorney General and the Secretary of Homeland Security, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373... are not eligible to receive Federal grants[.] Exec. Order 13,768, 9(a). Despite the fact that the grant-eligibility provision of Section 9(a) is directed solely to the Attorney General and the Secretary, it appears that the circuit court relied on multiple mistaken assumptions, derived from extrinsic press reports, about the Executive Order. Significantly, the circuit court, citing a newspaper article, apparently found that the County s failure to cooperate with ICE detainers threatened the county s more than $350 million in annual federal aid plus billions the mayor wants to expand Metrorail. Circuit Court Op. at 9. 16

The circuit court s assumption, however, is inaccurate and distorts the plain text of Section 9(a) of the Order, which addresses only the provision of grants to states or their subdivisions that willfully refuse to comply with 8 U.S.C. 1373. Moreover, the Attorney General s Memorandum makes clear that the grant-eligibility provision in Section 9(a) of the Executive Order applies only to grant programs administered by DOJ or DHS and, with respect to DOJ grants, only to those programs where explicit terms condition eligibility on certification of compliance with 8 U.S.C. 1373, a statute that does not govern a state or local jurisdiction s decision to cooperate with voluntary detainers. See AG Mem. at 1 2. i. The AG Memorandum Clarifies that the Executive Order Does Not Reach the County s Decision to Cooperate with Detainers. The Memorandum specifies that the Executive Order does not purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary of Homeland Security in any respect, but rather instructs those officials to take certain action, to the extent consistent with the law. AG Mem. at 2; see Bldg. & Const. Trades Dep t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002) (noting that the President is merely wielding his supervisory authority over the Executive Branch where he directs his subordinates to take certain action but only [t]o the extent permitted by law ). The AG Memorandum further clarifies that the grant-eligibility provision is limited solely to federal grants administered by [DOJ] or [DHS], and to grants 17

requiring the applicant to certify... compliance with federal law, including 8 U.S.C. 1373, as a condition for receiving an award. AG Mem. at 1, 2. Only jurisdiction[s] that fail[] to certify compliance with [8 U.S.C. 1373] will be ineligible to receive [an] award[] pursuant to the grant-eligibility provision. Id. In other words, the provision applies only where an applicant or grant recipient has had the choice either to certify compliance with 8 U.S.C. 1373 as an express condition of eligibility to participate in a certain grant program or refuse to certify compliance and thereby render itself ineligible to participate in the grant program. Further, the Order applies only where an applicant or recipient of certain grants administered by the U.S. Department of Justice or the U.S. Department of Homeland Security has had the choice either to (1) certify compliance with 8 U.S.C. 1373 as an express condition of eligibility to participate in that grant program, or (2) refuse to certify compliance and thereby render itself ineligible to participate in the program. Crucially, the decision to cooperate or refuse to cooperate with immigration detainers does not implicate 8 U.S.C. 1373. As explained earlier, 8 U.S.C 1373 addresses the communication of information regarding the citizenship or immigration status of individuals between federal, state, and local governments. Detainers are issued under other statutory and regulatory provisions. See 8 U.S.C. 1226, 1231(a), 1357(d); 8 C.F.R. 287.7(a) and (d); see also supra 2 6. Thus, 18

even if the Executive Order s enforcement provision could be construed as coercing states and localities to take a certain action which it does not the Attorney General has made clear that it does not apply to immigration detainers. ii. The AG Memorandum s Interpretation is Conclusive. The AG memorandum should be given controlling weight. Section 9(a) of the Executive Order directs only two officials, the Attorney General and the Secretary of Homeland Security, to implement its provisions. The Attorney General has now clarified that he does not interpret the challenged portion of the Executive Order as applying to grant programs administered by agencies other than DOJ and DHS. Thus, the AG Memorandum s interpretation is conclusive here. Moreover, by longstanding tradition and practice, the Attorney General s legal opinions are treated as authoritative by the heads of executive agencies. See, e.g., Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434, 439 (1995); Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319 20 (2000). The Attorney General has a statutory duty to advise executive department heads on questions of law, 28 U.S.C. 512, and furnishes formal legal opinions to executive agencies, 28 C.F.R. 0.5(c). And although the Secretary of Homeland Security principally administers the immigration laws, the INA provides that a determination and ruling by the Attorney General with respect to all questions of law shall be controlling. 8 19

U.S.C. 1103(a)(1); I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). Here, the Attorney General has determined the question of how to interpret and implement Section 9 of the Executive Order consistent with applicable law, as directed to do so by the President, including 8 U.S.C. 1373 and the preexisting guidelines for grants administered by DHS and DOJ. The AG Memorandum thus conclusively establishes that section 9(a) is limited to grant programs administered by DOJ or DHS. Moreover, the AG Memorandum sets forth clear and consistent guidance for the applicable components of DOJ as to the parameters of the grant-eligibility provision. In any event, even assuming that the Executive Order may have encouraged Miami-Dade to change its policy, notwithstanding the Attorney General s interpretation or the County s arguments to the contrary, that does not demonstrate commandeering. The federal government possesses the ability to encourage a State to regulate in a particular way, or... hold out incentives to the States as a method of influencing a State's policy choices, for example by attach[ing] conditions on the receipt of federal funds. N.Y. v. United States, 505 U.S. 144, 166 (1992) (quoting South Dakota v. Dole, 483 U.S. 203, 206 (1987)); see also Appellants Br., at 7 10, 33 42 (outlining the relevant actions taken by the county and stating that the county was not coerced as defined by the Tenth Amendment into cooperating with detainers). 20

In sum, the Executive Order on its face does not extend to ICE detainers. Regardless, the AG Memorandum clarifies the scope of the Executive Order s granteligibility provision, demonstrating that the Executive Order does not coerce the County into cooperating with detainers under the Tenth Amendment, given that the Order does not apply to detainers at all. D. ICE detainers are based on probable cause that the alien is removable and are otherwise reasonable. Thus, they raise no Fourth Amendment concerns. Finally, although the circuit court relied primarily on its novel commandeering theory, it, and the Appellant, suggested below that LaCroix was unlawfully seized as a result of his detainer. However, cooperation with ICE detainersis also fully consistent with the Fourth Amendment. The requests are based on probable cause that the alien is removable from the United States under the INA, and it is permissible for DHS officers to make the probable cause finding without judicial review of the determination. These probable cause determinations are generally straightforward. If an alien is present in the United States, ICE can often readily determine whether he or she was lawfully admitted or paroled into the United States following inspection by an immigration officer, such that the alien is in fact lawfully present in the United States. See 8 U.S.C. 1101(a)(13)(A), 1182(d)(5). Here, ICE found probable cause of removability on the basis of LaCroix s final order of removal and other evidence that he was a removable alien, R. at 32, which 21

courts routinely find satisfy any Fourth Amendment standard. See, e.g., Miranda- Olivares v. Clackamas Cnty., No. 12-cv-2317-ST, 2014 WL 1414305, at *11 (D. Or. Apr. 11, 2014) (finding probable cause for local officer to arrest when a[n alien] is... subject to a warrant for arrest or an order of removal or deportation ); People v. Xirum, 993 N.Y.S.2d 627, 630 (N.Y. Sup. Ct. 2014) (same); accord Moreno v. Napolitano, 213 F. Supp. 3d 99, 1005 (N.D. Ill. 2016) (citing 8 U.S.C. 1226(a), in which an alien may be detained pursuant to a warrant issued by the Attorney General, including arrest warrants based on final order of removal). 11 These holdings follow from longstanding precedents that hold that immigration officers may determine whether probable cause exists to issue a detainer request without a neutral, judicial arbiter reviewing that decision, and that State and local officers may rely on those determinations. First, the Supreme Court has long held that removal proceedings are civil, rather 11 Federal courts of appeals have found the detention of aliens by local police compliant with the Fourth Amendment even without a final order of removal or federal arrest warrant. See, e.g., Ovando-Garzo, 752 F.3d at 1164 65 (state officer s actions identifying [the alien], communicating with the Border Patrol, and detaining [him] until the Border Patrol agent could take custody, did not constitute unlawful seizure); Santos, 725 F.3d at 465 67 (recognizing that local police may detain and transport an alien at the express direction of federal officials); Quintana, 623 F.3d at 1242 (no Fourth Amendment violation where local officer, following inquiry into immigration status, detained an alien at DHS s request until DHS could take him into custody the following day); Soriano-Jarquin, 492 F.3d at 496 97 (finding detention of alien by local officer lawful where the officer detained the passengers at ICE s request). 22

than criminal in nature, and various protections that apply in the context of a criminal trial, including various Fourth Amendment protections such as the requirement for a magistrate to review the issuance of a warrant, do not apply in a deportation hearing. Immigration & Naturalization Servs. v. Lopez Mendoza, 468 U.S. 1032, 1050 51 (1984). It is thus uncontroversial that the Fourth Amendment's requirements in the criminal context do not apply to the initiation and conduct of these civil proceedings. See Gerstein v. Pugh, 420 U.S. 103, 125, n.27 (1975) ( The Fourth Amendment was tailored explicitly for the criminal justice system.... ); De La Paz v. Coy, 786 F.3d 367, 372 (5th Cir. 2015) (rejecting an attempt to equate civil immigration enforcement actions with federal criminal law enforcement ); cf. Marshall v. Barlow s, Inc., 436 U.S. 307, 320 (1978) (noting how [p]robable cause in the criminal law sense is not required for civil, administrative searches). Accordingly, it is not unconstitutional under the Fourth Amendment for the Legislature to delegate a probable cause determination to an executive officer, such as an ICE agent, rather than to an immigration, magistrate, or federal district court judge. Gonzalez v. ICE, No. 13-4416, 2017 WL 2559616, *10 (C.D. Cal. June 12, 2017) (collecting cases). Indeed, as the Supreme Court has observed at length, given the civil nature of these immigration proceedings, there is overwhelming historical legislative recognition of the propriety of administrative arrest[s] for deportable aliens. Abel 23