United States of America v. State of California et al

Filing 171

REPLY by United States of America to RESPONSE to 2 Motion for Preliminary Injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(Reuveni, Erez)

EXHIBIT A

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or violent felony as defined by in subdivision (c) of Section 1192.7 or subdivision (c) of Section 667.5
of the Penal Code;
Has been convicted of a felony punishable by imprisonment in state prison;
Has been convicted within the past five years of a misdemeanor for a crime that is punishable as either
a misdemeanor or a felony;
Has been convicted at any time of a felony for any of the offenses listed in Government Code section
7282.5, subdivision (a)(3);
Is a current registrant on the California Sex and Arson Registry;
Is arrested and taken before a magistrate on a charge involving: (1) a serious or violent felony
identified in subdivision (c) of Section 1192.7 or subdivision (c) of Section 667.5 of the Penal Code;
(2) a felony punishable by imprisonment in state prison, other than domestic violence; or (3) a felony
for any of the offenses listed in Penal Code section 7282.5, subdivision (a)(3), other than domestic
violence; and the magistrate makes a finding of probable cause as to that charge;
Has been convicted of a federal crime that meets the definition of aggravated felony under the federal
Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(A)-(P); or
Is identified by ICE as the subject of an outstanding federal felony arrest warrant.

(Gov. Code, § 7282.5, subd. (a).)
Only if both of these conditions are met, then local law enforcement may continue to detain the individual for
up to 48 hours (excluding Saturdays, Sundays, and holidays) to permit ICE to assume custody. If one of these
conditions is not satisfied, then an immigration detainer will not support the continued detention of an
individual otherwise eligible for release, and under the TRUST Act, the individual shall not be detained on the
basis of the detainer after the individual otherwise becomes eligible for release from custody.
The TRUST Act Does Not Affect Notification Obligations Under Health and Safety Code Section 11369
Health and Safety Code section 11369 provides that arresting agencies shall notify the appropriate federal
agency (ICE) when there is reason to believe that a person arrested for violating a specified controlled
substances offenses may not be a citizen of the United States. (See Health & Safety Code, § 11369.) The
listed offenses are violations of sections 11350, 11351, 11351.5, 11352, 11353, 11355, 11357, 11359, 11360,
11361, 11363, 11366, 11368 or 11550 of the Health and Safety Code. Compliance with section 11369 only
requires notification to ICE; it does not permit continued detention solely on the basis of an arrest for one of
the specified offenses above.
ICE and Federal Court Rulings Confirm That ICE Detainer Requests Are Not Mandatory
Again, satisfaction of the TRUST Act conditions for compliance with ICE immigration detainer requests does
not mean that compliance is mandatory. As we explained in Bulletin No. 2012-DLE-01, law enforcement
agencies in California are not required to fulfill an ICE immigration detainer. Recent court rulings and
correspondence from ICE’s Acting Director have further confirmed that ICE immigration detainers are not
mandatory. In a February 25, 2014, letter to Representative Mike Thompson, Acting ICE Director Daniel H.
Ragsdale stated that “[w]hile immigration detainers are an important part of ICE’s effort to remove criminal
aliens who are in federal, state, or local custody, they are not mandatory as a matter of law.”
In a March 4, 2014, ruling, the Third Circuit Court of Appeals held that ICE detainers are voluntary requests.
(Galarza v. Szalczyk (3rd Cir. 2014) 745 F.3d 634.) The court concluded that “immigration detainers do not
and cannot compel a state or local law enforcement agency to detain suspected aliens subject to removal” and
that the county in that case was “free to disregard the ICE detainer.” (Id. at pp. 636, 645.) The court specified
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that settled constitutional law clearly establishes that immigration detainers must be deemed requests, citing
the Tenth Amendment concerns that were explained in Bulletin No. 2012-DLE-01. (Id. at pp. 643-645.)
A federal court in Oregon also recently held that ICE detainers are voluntary requests, relying on the
reasoning in Galarza and on this office’s December 4, 2012 Information Bulletin. (Miranda-Olivares v.
Clackamas Co. (D.Or. April 11, 2014, No. 3:12-cv-02317-ST) [2014 WL 1414305].) Accordingly, subject to
federal and state limitations described above, in circumstances where compliance with ICE immigration
detainers is permitted, an agency may use its discretion whether to devote resources to holding a suspected
undocumented immigrant on behalf of the federal government. California law enforcement agencies should
consider the merits of each request carefully, consider whether the individual may be dangerous and pose a
public safety risk, and take the course of action that best protects public safety.
Jurisdictions May Be Exposed to Liability If They Voluntarily Comply with ICE Detainer Requests
The Miranda-Olivares court held, consistent with Information Bulletin No. 2012-DLE-01, that local
authorities can choose to comply with a request from ICE, but are not required to do so by law. The court
also held that because compliance with an ICE detainer is voluntary rather than mandatory, a local agency
could violate the Fourth Amendment by detaining an individual solely based on the request of ICE, without
some other probable cause for arrest.
No state or federal court with California jurisdiction has yet ruled on whether detentions authorized under the
TRUST Act, but solely based on the request of ICE, violate the Constitution. If a California court adopts the
reasoning of the district court in Miranda-Olivares, local jurisdictions may be held liable for damages for such
a detention.
Further, compliance with the TRUST Act may not immunize local jurisdictions from liability. As described
above, the TRUST Act permits a law enforcement official to detain an individual on the basis of an
immigration hold after that individual becomes otherwise eligible for release from custody only if the
continued detention would “not violate any federal law . . . .” (Gov. Code, § 7282.5, subd. (a).) If continued
detention is found to violate the Fourth Amendment, it would therefore likely be no defense for the local
jurisdiction to argue that it was acting under the authority of the TRUST Act.
Federal Case Law and the TRUST Act Do Not Limit Other Cooperation with Immigration Officials
The Miranda-Olivares holding and the TRUST Act only affect discretion to detain individuals. They do not
affect a law enforcement agency’s discretion to otherwise cooperate with federal immigration officials.
Specifically, law enforcement officials may provide information to ICE, including notification of the date that
an individual will be released, as requested on an immigration detainer form. Federal law provides that state
and local governments may not be prohibited from providing information to or receiving information from
ICE. (8 U.S.C. §§ 1373, 1644; see also 75 Ops.Cal.Atty.Gen. 270, 277 (1992) [concluding that a city may not
prohibit its officers and employees from cooperating in their official capacities with immigration officials].)

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