Gonzalez v. Immigration and Customs Enforcement

• Decision Date: 27 September 2019
• Docket Number: Case No. 2:12-cv-09012-AB (FFMx)
• Citation: 416 F.Supp.3d 995
• Parties: Gerardo GONZALEZ, et al., Plaintiffs, v. IMMIGRATION AND CUSTOMS ENFORCEMENT, an entity, et al. Defendants.
• Court: U.S. District Court — Central District of California

416 F.Supp.3d 995

Gerardo GONZALEZ, et al., Plaintiffs,

v.IMMIGRATION AND CUSTOMS ENFORCEMENT, an entity, et al. Defendants.

Case No. 2:12-cv-09012-AB (FFMx)

United States District Court, C.D. California.

TRIAL DATE: MAY 7, 2019

Signed September 27, 2019

Mohammad K. Tajsar, Jennifer L. Pasquarella, Jordan Wells, Pro Hac Vice, Sylvia Torres-Guillen, Zoe Nicole McKinney, ACLU Foundation of Southern California, Los Angeles, CA, Cody H. Wofsy, ACLU Foundation Immigrants Rights Project, Mark M. Fleming, Pro Hac Vice, Ruben Loyo, Pro Hac Vice, National Immigrant Justice Center, Chicago, IL, Spencer E. W. Amdur, Pro Hac Vice, ACLU Foundation Immigrants Rights Project, New York, NY, for Plaintiffs.

Ahilan T. Arulanantham, Jessica Karp Bansal, Peter J. Eliasberg, ACLU Foundation of Southern California, Chris Newman, National Day Laborer Organizing Network, Los Angeles, CA, Barrett S. Litt, Lindsay Battles, Kaye McLane Bednarski and Litt LLP, Pasadena, CA, Cecillia D. Wang, ACLU Foundation Immigrants Rights Project, San Francisco, CA, Omar C. Jadwat, Pro Hac Vice, ACLU Foundation Immigrants Rights Project, New York, NY, for Plaintiffs and Defendants.

Andrew I. Baum, Glaser Weil Fink Howard Avchen and Shapiro LLP, Los Angeles, CA, Jin S. Choi, Oscar Andres Bustos, Paul B. Beach, Justin W. Clark, Lawrence Beach Allen and Choi PC, Glendale, CA, for Defendants.

Anne Lai, UC Irvine School of Law, Irvine, CA, for Amicus.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ANDRÉ BIROTTE JR., UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

In an effort to regulate the flow of immigration, U.S. Immigration and Customs Enforcement ("ICE") collaborates with federal, state, and local law enforcement agencies ("LEAs") to issue immigration detainers. These detainers allow LEAs to keep an individual in custody up to 48 hours after their scheduled release date. The purpose of the immigration detainer is to give ICE time to become aware of the individual's immigration status, and, if necessary, take the detainee into custody for removal.

ICE has reworked its detainer form multiple times but currently uses the I-247A form for removal proceedings. The form provides four criteria for removability: (1) a final order of removal against the alien; (2) the pendency of ongoing removal proceedings against the alien; (3) biometric confirmation of the alien's identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law; and (4) statements made by the alien to an immigration officer and/or other reliable evidence that affirmatively indicate the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law.

This lawsuit surrounds the third category of the I-247A, which authorizes ICE to remove an individual based solely on biometric confirmation of the individual's identity and a review of multiple federal databases which may provide information on a person's immigration status. The issues before the Court are: (1) whether the exclusive use of biometric confirmation and database checks violates the Fourth Amendment; and (2) whether the issuance of detainers to state and local law enforcement agencies that lack authority for civil immigration arrests violates the Fourth Amendment.

This matter was tried before the Court, sitting without a jury, from May 7, 2019 to May 16, 2019. Jennifer Pasquarella and Jessica Karp-Bansal of the ACLU appeared on behalf of Plaintiff Gerardo Gonzalez and all those similarly situated ("Plaintiff"). J. Max Weintraub and John J. W. Inkeles of the United States Department of Justice appeared for Defendant Immigration and Customs Enforcement ("Defendant" or "ICE").

The Court has heard the admissible evidence presented by the parties and the arguments of counsel. It has considered the credibility of the witnesses and all papers and exhibits presented by the parties for purposes of this trial, including admissions in the Final Pretrial Conference Order. The Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

II. FINDINGS OF FACT

A. Background

1. Plaintiff Gerardo Gonzalez is a natural born United States citizen. He was born in Pacoima, in the City of Los Angeles, California. Dkt. No. 484, Stipulated Fact ("SF") 1. Gonzalez has never been removable from the United States.

2. On December 31, 2012, ICE issued an immigration detainer to the Los Angeles County Sheriff's Department requesting that the Sheriff maintain custody of Plaintiff Gonzalez after he would otherwise have been released from custody. Dkt. No 484, SF 2.

3. Gonzalez's immigration detainer was based on information reviewed in electronic databases. See Dkt. No. 484 SF, 3-4.

4. No ICE agent ever interviewed Plaintiff Gonzalez prior to issuing a detainer. Dkt. No. 484, SF 8.

5. Gonzalez represents a class of individuals comprised of 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. Dkt. No. 484, at 1-2.¹

6. Defendant ICE is a component of the Department of Homeland Security ("DHS"). Id. at 5.

B. ICE's Use of Immigration Detainers

7. An immigration detainer is a request by ICE to a federal, state, or local LEA that the agency hold an individual in custody for up to 48 hours after the person would otherwise be released so that ICE can take the person into custody. Dkt. No. 484, Admitted Fact ("AF") 3, SF 16, Trial Transcript ("Tr.") 1480:18-21 (Robbins).

8. Detainers are check-box forms developed by DHS and issued by ICE agents. See, e.g. , Trial Ex. 96. Agents rely on their research, in the field professional expertise, and, if necessary, legal counsel when issuing detainers. Trial Tr. 1441:1-25 (Robbins).

9. No judicial process is undertaken before or after a detainer is issued; however, detainers are issued along with an ICE arrest warrant.² Dkt. No. 484, Admitted Fact ("AF") 5; Trial Tr. 1038:13-16 (Garibay).

10. The detainer form indicates that a detainer is not valid unless served on the individual subject to that detainer. Trial Ex. 96; Trial Tr. 1422:7-1423:4 (Robbins).

11. ICE officers at ICE's Pacific Enforcement Response Center ("PERC") in Laguna Niguel, California issue detainers 24 hours a day to persons in custody in the Central District of California and after-hours to federal, state, and local LEAs in 42 states nationwide and two U.S. territories.³ Dkt. No. 484, SF 50; Trial Ex. 101.

12. PERC agents issue detainers based on electronic database searches and do not perform any other investigation outside database checks. Dkt. No 484, SF 51.

13. PERC agents do not conduct interviews of subjects before issuing a detainer. Dkt. No 484, SF 52.

14. In California, the Transparent Review of Unjust Transfers and Holds ("TRUTH") Act was passed to require LEAs to serve detainers. See Cal. Gov. Code § 7283

15. Since the inception of this lawsuit, ICE has used five different detainer forms: the December 2011 revision, the December 2012 revision, the June 2015 Form I-247D, the August 2015 Form I-247X, and the April 2017 Form I-247A. See Exs. 92-96.

16. The introduction of the detainer form marked a change in ICE's approach to removal.

C. The Shift to Automatic Detainers

17. In 1999, the United States introduced the Integrated Automated Fingerprint Identification System ("IAFIS"), a 10-rolled fingerprint identification system for use by federal, state, local, and international law enforcement and other authorized agencies. Trial Ex. 98.

18. The Automated Biometric Identification System ("IDENT") is managed by the DHS US-VISIT Program and stores and processes biometric and biographic information—including fingerprints and, where available, facial recognition data— for DHS national security, law enforcement, immigration, intelligence, and other DHS mission-related functions. Trial Ex. 47.

19. ICE connects directly to IDENT through its EAGLE⁴ interface. Dkt. No. 484, SF 91.

20. IDENT contains over 237 million unique identities. Dkt. No. 484, SF 90.

21. IDENT contains fingerprint data for certain United States citizens, including those whom the FBI believes belong in the system, those who voluntarily enroll in certain "trusted traveler" programs, those who have applied to naturalize as United States citizens, and those who have filed applications for certificates of citizenship. Nemeth Dep. 26:4-27:6; 41:14-42:9; 59:15-19. 22. IDENT tracks information for each individual encounter with law enforcement. An encounter occurs when an individual's fingerprint is live captured by an ICE officer or agent. Trial Tr. 1161:13-24 (Nemeth).

23. IDENT automatically compares the biometrics from each new encounter with biometrics already contained within the database and collected from previous encounters by law enforcement officers and immigration officers. If the biometrics do not match what is already in the system, IDENT automatically assigns a new identity for the encounter and assigns the fingerprints a Fingerprint Identification Number ("FIN").

24. IDENT can determine an individual's identity even where there are typographical errors in previous encounter entries. Trial Tr. 1165:8-12 (Nemeth).

25. IDENT is a very accurate source of biometric matching. See Nemeth Dep. Tr. 67:13-20.

26. In 2006, the government began its effort to create interoperability between IAFIS and IDENT. The goal of the project was to enable the near real-time exchange of biometric and biographic information between agencies that is complete, accurate, and timely. This would allow fingerprints entered into one system to be...