Buquer v. City of Indianapolis

• Decision Date: 24 June 2011
• Docket Number: No. 1:11–cv–708–SEB–MJD.,1:11–cv–708–SEB–MJD.
• Citation: 797 F.Supp.2d 905
• Parties: Ingrid BUQUER, Berlin Urtiz, and Louisa Adair, on their own behalf and on behalf of those similarly situated, Plaintiffs, v. CITY OF INDIANAPOLIS, et al., Defendants.
• Court: U.S. District Court — Southern District of Indiana

797 F.Supp.2d 905

Ingrid BUQUER, Berlin Urtiz, and Louisa Adair, on their own behalf and on behalf of those similarly situated, Plaintiffs,

v.CITY OF INDIANAPOLIS, et al., Defendants.

No. 1:11–cv–708–SEB–MJD.

United States District Court, S.D. Indiana, Indianapolis Division.

June 24, 2011.

Cecillia D. Wang, Katherine Desormeau, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA, Angela Denise Adams, Lewis & Kappes, Gavin Minor Rose, Jan P. Mensz, Kenneth J. Falk, Aclu of Indiana, Indianapolis, IN, Karen Tumlin, Linton Joaquin, Los Angles, CA, Lee Gelernt, Andre I. Segura, Omar C. Jadwat, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY, for Plaintiffs.

Jennifer Lynn Haley, Justin F. Roebel, City Of Indianapolis, Office of Corporation Counsel, Betsy M. Isenberg, Scott Leroy Barnhart, Adam Clay, Tamara Weaver, Wade Dunlap Fulford, Indiana Attorney General, Indianapolis, IN, Robert Howard Schafstall, Cutsinger & Schafstall, Franklin, IN, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

SARAH EVANS BARKER, District Judge.

This matter is before the Court on Plaintiffs' Motion for Preliminary Injunction [Docket No. 14], filed on May 26, 2011, pursuant to Federal Rule of Civil Procedure 65 in the above-captioned cause. Plaintiffs seek to have enjoined without bond two provisions of the recently enacted Senate Enrolled Act 590, scheduled to go into effect on July 1, 2011. Specifically, the two portions of that law which Plaintiffs challenge are: Section 19 of SEA 590, which amends Indiana Code § 35–33–1–1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies. Plaintiffs also challenge Section 18 of SEA 590, to be codified as Indiana Code § 34–28–8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

The legislation under review here, as adopted by the Indiana General Assembly, mirrors a spate of similar laws recently enacted (and challenged in their respective courts) by the states of Alabama, Georgia, South Carolina, Utah and Arizona. Regarding each of these statutes, the ostensible underlying purpose is the same: all represent attempts by the states to offset in various ways difficulties that have arisen within their jurisdictions from the perceived failures of the federal government to deal more effectively with the broad problem of illegal immigration. In their attempts to fashion laws to advance this purpose, these states have tended to impose a variety of restrictions on immigrants—some in this country legally, some not—and on businesses who would hire them or conduct other commercial affairs with such persons located or otherwise living within their borders. Tacitly acknowledging that immigration matters are primarily committed to the federal government to regulate, the states' enactments reflect what in some instances appear to be tortuous attempts to carve out legally permissible roles that do not run afoul of federal jurisdictional and constitutional requirements as well as the principles of federal preemption. Unfortunately, insofar as Indiana's efforts to carve out such a permissible role, at least with regard to the two sections of the statute under review here, their results have proven to be seriously flawed and generally unsuccessful.

Plaintiffs' Complaint challenges the constitutionality of these two sections of SEA 590. Their accompanying Motion for Preliminary Injunction seeks to have the Court enjoin the State of Indiana from enforcing them until a final determination can be made by the Court both as to their constitutionality, arguing that the challenged sections are not only unconstitutional under the Fourth Amendment and due process provisions, and because they run afoul of federal presumption principles as attempts to regulate immigration, an exclusively federal concern. Oral arguments were heard on June 20, 2011. Having considered the parties' briefing and oral arguments, the undisputed documentary evidence, and the controlling principles of law, the Court now GRANTS Plaintiffs' motion for injunctive relief.

Factual Background

I. Federal Immigration Regulation

In 1952, Congress enacted the Immigration and Nationality Act (“INA”), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. “That statute established a ‘comprehensive federal statutory scheme for regulation of immigration and naturalization’ and set ‘the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’ ” Chamber of Commerce of U.S. v. Whiting, ––– U.S. ––––, 131 S.Ct. 1968, 1973, 179 L.Ed.2d 1031 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 353, 359, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976)). The INA empowers the Department of Homeland Security (“DHS”), the Department of Justice (“DOJ”), and the Department of State, among other federal agencies, to administer and enforce immigration law. Within DHS, various sub-agencies, including the United States Immigration and Customs Enforcement (“ICE”), the United States Customs and Border Protection (“CBP”), and the United States Citizenship and Immigration Services (“USCIS”), are involved in this task.

In certain limited situations, federal law permits the delegation of authority to enforce civil immigration law to state and local law enforcement. For example, DHS is permitted to enter into written agreements (known as “287(g) agreements”) with states or any political subdivision of a state to allow appropriately trained and supervised officers or employees of the state or subdivision to perform certain immigration responsibilities. 8 U.S.C. § 1357(g)(1). It is undisputed that Indiana has no such agreement with the federal government.

II. Section 19

Section 19 of the Act amends Indiana Code § 35–33–1–1(1), by adding new sections (a)(11)-(a)(13), which provide as follows:

(a) A law enforcement officer may arrest a person when the officer has:

* * *

(11) a removal order issued for the person by an immigration court;

(12) a detainer or notice of action for the person issued by the United States Department of Homeland Security; or

(13) probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)).

An understanding of the material phrases incorporated in this statute is necessary; that discussion ensues:

A. Removal Order

The INA contains provisions which, inter alia, set forth the conditions under which a foreign national may be admitted to and remain in the United States, establish civil penalties and criminal sanctions for immigration violations, and grant DHS the discretion to place non-citizens into removal proceedings for various actions. See, e.g., 8 U.S.C. §§ 1181–1182, 1184, 1225, 1227–1229, 1306, 1324–25. Unlawful presence in the United States on its own is not a federal crime, although it can lead to the civil remedy of removal. 8 U.S.C. §§ 1182(a)(6)(A)(I), 1227(a)(1)(B), (C). Removal proceedings take place within an administrative immigration court system within the DOJ. 8 C.F.R. § 1003.0, et seq.

If the Attorney General of the United States issues a warrant after removal proceedings have been initiated against an individual under federal law, that person may be arrested and detained pending a final removal decision. 8 U.S.C. § 1226(a). However, removal does not occur in every case. After removal proceedings are initiated, the non-citizen may still be released during the pendency of removal proceedings, or even after the removal order has been issued by an immigration judge. Under 8 U.S.C. § 1226(a), the individual may be released on bond or conditional parole, or, in some cases, be provided with work authorization. Id. § 1226(a)(3). After a removal order is issued by an immigration judge, the non-citizen has the right to seek reconsideration as well as administrative and judicial review of that determination and may be released on bond until a final determination is made. 8 U.S.C. § 1229a(c)(5). Even after issuance of a final removal order, the individual may, in some circumstances, move to reopen the removal proceedings, which may stay his/her removal pending final disposition of the motion. Id. § 1229a(c)(7). If the Attorney General fails to remove the non-citizen within ninety days after the removal order becomes final, the individual is released from detention, subject to supervision by the Attorney General. 8 U.S.C. § 1231(a)(3). Finally, in lieu of deportation, the Attorney General may allow an alien to voluntarily depart the United States during a predetermined period of time. 8 U.S.C. § 1229c.

B. Detainer

If federal or local law enforcement informs ICE that an alien is in custody on non-immigration related charges, ICE may issue a detainer requesting that the law enforcement agency hold the individual for up to 48 hours (not including weekend days and holidays) beyond the time that the detainee would otherwise be released in order to allow ICE to assume custody, if it chooses to do so. 8 C.F.R. § 287.7(d). A detainer is not a criminal warrant, but rather a voluntary request that the law enforcement agency “advise [DHS], prior to release of the alien, in order for [DHS] to arrange to assume custody.” Id. § 287.7(a). The detainer automatically expires at the end of the 48–hour period. Id.

C. Notice of Action

The standard form that federal immigration authorities...