Velazquez-Hernandez v. U.S. Immigration & Customs Enforcement
| Decision Date | 16 November 2020 |
| Docket Number | Case No.: 3:20-cv-2060-DMS-KSC |
| Citation | 500 F.Supp.3d 1132 |
| Parties | Elizeo VELAZQUEZ-HERNANDEZ, et al., Plaintiffs-Petitioners, v. U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, et al., Defendants-Respondents. |
| Court | U.S. District Court — Southern District of California |
James Michael Johnson, Johnson Trial Law, LLC, Decatur, GA, Jeremy Delicino, San Diego, CA, for Plaintiffs-Petitioners Elizeo Velazquez-Hernandez, Rigoberto Campos-Atrisco, Erick Aranda-Moreno.
James Michael Johnson, Johnson Trial Law, LLC, Decatur, GA, for Plaintiffs-Petitioners Fernando Girarte-Alcala, Jose Carillo-Valdez.
U.S. Attorney CV, Civil Division, Katherine L. Parker, Office of the U.S. Attorney, San Diego, CA, for Defendants-Respondents.
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs in this case challenge the United States Border Patrol's practice of using the federal courthouse as a preferred location to arrest noncitizens appearing for court hearings in order to place them in civil deportation proceedings. For the past several years, the Department of Homeland Security ("DHS"), through its sub-agency United States Border Patrol, has taken into civil immigration custody many individuals who, like Plaintiffs, appear on bond for their court trials to contest a misdemeanor illegal entry charge. Regardless of outcome, these individuals are taken into immigration custody by Border Patrol at the conclusion of their trials. Plaintiffs seek a temporary restraining order ("TRO") to enjoin DHS from conducting such courthouse arrests.
Plaintiffs allege DHS's courthouse arrest policy violates the Administrative Procedure Act ("APA") because it is arbitrary and capricious and exceeds DHS's statutory authority by violating the common-law rule against civil courthouse arrest. Plaintiffs further allege this policy violates Plaintiffs’ rights of access to the court under the First, Fifth, and Sixth Amendments to the United States Constitution, violates Plaintiffs’ Sixth Amendment right to present a defense, and that DHS's practice of making courthouse arrests without a warrant violates 8 U.S.C. § 1357(a)(2) of the Immigration and Nationality Act ("INA") and the Fourth Amendment to the United States Constitution. Defendants argue the Court should deny the motion as the Court lacks jurisdiction to hear the matter, the resumption of immigration custody is not an arrest, the policy is not arbitrary and capricious, and there is no common-law privilege immunizing Plaintiffs from civil arrests at the courthouse.
It is undisputed the courthouse arrests at issue are for civil immigration enforcement only (deportation) and not for arrest due to commission of a new crime, or to apprehend an individual who poses a danger to national security or a risk to public safety. The matter has been fully briefed and argued. The Court concludes Plaintiffs have met their burden and are entitled to a TRO prohibiting DHS officers’ practice of conducting civil immigration arrests at the federal courthouse. This practice deters parties and witnesses from coming to court, instills fear, is inconsistent with the decorum of the court, and degrades the administration of justice. The common-law rule against civil courthouse arrest is incorporated in the INA and ensures that courts everywhere are open, accessible, free from interruption, and able to protect the rights of all who come before the court. DHS's courthouse arrest policy violates these long-standing principles.
Plaintiffs allege that since 2018, DHS officers have attended many federal court proceedings in the Southern District of California for noncitizens charged with misdemeanor illegal entry who have been released on bond, and arrested them in the courtroom or surrounding courthouse complex after conclusion of their criminal cases. (First Am. Compl. ("FAC") ¶ 29; Mot. for TRO 5–6.) Specifically, these officers are United States Border Patrol agents. (See Decl. of Jasper Frontiero ("Frontiero Decl.") ¶ 3.) Border Patrol acknowledges its agents patrol the courthouse in order to "resume custody" of illegal-entry defendants at the conclusion of their criminal cases. (Id. ¶ 3; Decl. of Bradley Blazer ("Blazer Decl.") ¶¶ 3–4.) Border Patrol is housed within United States Customs and Border Protection ("CBP"), and as noted is a sub-agency of DHS.
Prior to 2017, it was the federal government's policy to only undertake immigration enforcement actions at or near courthouses against "Priority 1" noncitizens. (See Ex. H to Mot. for TRO.) "Priority 1" was the category of individuals whom the government deemed the highest priority for deportation and consisted of "aliens who pose a danger to national security or a risk to public safety." (Ex. D to Mot. for TRO.)
Beginning in 2017 under the Trump Administration, the government shifted its priorities and increased immigration enforcement. On January 25, 2017, the President issued Executive Order 13,768, titled "Enhancing Public Safety in the Interior of the United States," which directed agencies to "employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens." (Ex. K to Mot. for TRO.) Subsequently, on February 20, 2017, then-Secretary of Homeland Security John Kelly rescinded "all existing conflicting directives, memoranda, [and] field guidance" regarding immigration enforcement priorities, pursuant to the Executive Order. (Ex. L to Mot. for TRO.)
On January 10, 2018, Immigration and Customs Enforcement ("ICE"), a sub-agency of DHS, formalized ICE Directive No. 11072.1, "Civil Immigration Actions Inside Courthouses." This Directive provides that ICE may civilly arrest on courthouse premises "aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed." (Ex. M to Mot. for TRO.) Furthermore, it provides that ICE may arrest others, such as undocumented witnesses or family members, in "special circumstances." (Id. ) "Special circumstances" are not clearly defined; the Directive states enforcement determinations will be made "on a case-by-case basis in accordance with federal law and consistent with [DHS] policy." (Id. ) Following the issuance of the Directive, courthouse immigration arrests increased dramatically. As one court put it, "plaintiffs infer from the more than 1700 percent increase in such arrests that the Directive actually embodies a conscious decision to conduct widespread immigration arrests in or around state courthouses, a reversal of ICE's pre-2017 policy to largely abstain from such arrests." New York v. U.S. Immigration & Customs Enf't , 431 F. Supp. 3d 377, 381 (S.D.N.Y. 2019) ; see Washington v. U.S. Dep't of Homeland Sec. , No. C19-2043 TSZ, ––– F.Supp.3d ––––, ––––, 2020 WL 1819837, at *4 (W.D. Wash. Apr. 10, 2020) (). This increase in immigration enforcement produced a chilling effect on noncitizens’ appearances in courts. (See Br. of American Immigration Lawyers Association as Amicus Curiae in Supp. of Pls.’ Mot. for TRO 9–11 ().)
It does not appear that CBP has issued any directive regarding courthouse arrests. As of October 2020, CBP's website states that "enforcement actions at courthouses will only be executed against individuals falling within the public safety priorities" of a November 2014 memorandum. (Ex. P to Mot. for TRO). However, this memorandum was explicitly rescinded by Secretary Kelly in February 2017. (Ex. L to Mot. for TRO.) The website indicates that non-targeted individuals may be arrested at courthouses in "exigent circumstances." (Ex. P to Mot. for TRO.)
In accordance with the change in priorities set forth in the Executive Order, in April 2018, then-Attorney General Jeff Sessions directed each United States Attorney's Office along the southern border to adopt a "zero-tolerance" policy called "Operation Streamline" for illegal entry offenses, under which the federal government began prosecuting virtually all instances of misdemeanor illegal entry under 8 U.S.C. § 1325(a). (See Office of the Att'y Gen., Memorandum for Federal Prosecutors Along the Southwest Border (April 6, 2018).) In response to the increased number of illegal entry prosecutions, this District instituted a separate court calendar and procedures to handle the massive influx of cases. See United States v. Chavez-Diaz , No. 18MJ20098 AJB, 2018 WL 9543024, at *1 (S.D. Cal. Oct. 30, 2018), rev'd and , 949 F.3d 1202 (9th Cir. 2020) (). Typically, Border Patrol apprehends and arrests individuals such as Plaintiffs for illegal entry, then transfers them to the custody of the United States Marshals Service ("USMS") for the purposes of criminal prosecution. (Blazer Decl. ¶¶ 3–4; Frontiero Decl. ¶ 3.) As Defendants acknowledge, many of these individuals are subsequently released on bond, resulting in Border Patrol's practice of attending court proceedings to arrest them at the conclusion of the criminal case in order to place them in deportation or removal proceedings. (See Blazer Decl. ¶ 4; Frontiero Decl. ¶ 3.)
Plaintiffs are individuals charged in the Southern District of California with misdemeanor illegal entry in violation of 8 U.S.C. § 1325, as part of the government's Operation Streamline. (FAC ¶¶ 1, 17.) Plaintiffs are all released on bond after a federal magistrate judge determined they were not...
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