ICE Provides Guidance after District Court Judgment in Gonzalez v. ICE
ICE provided guidance on Gonzalez v. ICE, which declared any detainer issued by a ICE officer or agent in the Central District of California to a law enforcement agency for a member of the Probable Cause Subclass to be null and void and ordered ICE to immediately rescind all such detainers.
Notice posted on ICE’s website:
Gonzalez v. ICE, No. 13-4416 (C.D. Cal. Feb. 5, 2020), ECF No. 574
February 5, 2020
On February 5, 2020, the U.S. District Court for the Central District of California entered a judgment in Gonzalez v. ICE, No. 13-4416 (C.D. Cal. Feb. 5, 2020), ECF No. 574. The judgment declared any detainer issued by a U.S. Immigration and Customs Enforcement (ICE) officer or agent in the Central District of California to a law enforcement agency (LEA) for a member of the Probable Cause Subclass, which is defined below, to be null and void and ordered ICE to immediately rescind all such detainers. The judgment also stated that ICE violates the Fourth Amendment by issuing detainers to state and local law enforcement agencies in states that do not expressly authorize civil immigration arrests on detainers in state statute. The judgment directed ICE to notify LEAs that could have received an immigration detainer (DHS Form I-247A) from ICE that “a detainer does not provide the legal authority for a state or local law enforcement officer to make a civil immigration arrest.”
Probable Cause Subclass members are defined as:
All current and future persons who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, where the detainer is not based upon a final order of removal signed by an immigration judge or the individual is not subject to ongoing removal proceedings and the detainer was issued solely on the basis of electronic database checks. (For these individuals, an LEA would have received a DHS Form I-247A, with only the third box checked in the section labeled “1. DHS HAS DETERMINED THAT PROBABLE CAUSE EXISTS THAT THE SUBJECT IS A REMOVABLE ALIEN. THIS DETERMINATION IS BASED ON.”)
ICE offices within the Central District of California include:
Pacific Enforcement Response Center located in Laguna Niguel, California Enforcement and Removal Operations (ERO) Field Office in Los Angeles, California Homeland Security Investigations (HSI) Office of Special Agent in Charge in Long Beach, California The judgment does not prohibit ICE from requesting, or state and local law enforcement agencies from providing, advance notification of release, nor does the judgment prohibit ICE from issuing detainers when the suspected removable alien is subject to a final order of removal, is subject to ongoing removal proceedings, or has made statements to an immigration officer affirmatively indicating that he or she lacks immigration status or notwithstanding such status is removable under U.S. immigration law to any law enforcement agency. The judgment does not bar the cooperative efforts of any federal, state, or local law enforcement agency and only applies to ICE.
The government is seeking further review of this judgment. De La Cerda v. U.S. Dep’t of Homeland Security, No. 20-55175 (9th Cir. filed Feb. 14, 2020). On March 2, 2020, the Ninth Circuit Court of Appeals granted the government’s emergency request to stay the part of the judgment prohibiting ICE from issuing detainers seeking the detention of Probable Cause Subclass members to LEAs in states that lack state law permitting state and local LEAs to make civil immigration arrests based on civil immigration detainers only. Id., Dkt. 10.