Zepeda v. U.S. I.N.S., 80-5464

Citation753 F.2d 719
Decision Date26 March 1985
Docket NumberNo. 80-5464,80-5464
PartiesVirginia ZEPEDA, Yolanda Gamboa, Guillermo Olvera, Maria Josefa Botello, Ramon Munoz, Domingo Zepeda, Rafael Pastor, Joe Paz, David Loura Tapia and Paz Raul Flores, Plaintiffs-Appellees, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, David Crosland, Edward O'Connor, Joe Howerton and Philip Smith, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS, WALLACE, and NORRIS, Circuit Judges.

WALLACE, Circuit Judge:

With increasing frequency, we are requested to pass upon the method used by the Immigration and Naturalization Service (the INS) in its efforts to enforce the immigration laws enacted by Congress. Here, in a case challenging some of its actions, the district court entered a preliminary injunction against the INS and its officers and agents within the Central District of California. The merits of the case present the difficult question whether these officers have violated and will violate constitutional rights of the targets of their investigations. We will not pass on the merits of the critical issues involved due to the posture of the appeal presented. As to the preliminary injunction, we affirm in part, but reverse and remand to the district court for modification of the scope of the injunction.

I

A class-action complaint was filed in the district court seeking declaratory, injunctive, and monetary relief for alleged statutory and fourth amendment violations during INS enforcement operations. The seven individual plaintiffs include United States citizens of Mexican descent, permanent resident aliens of Mexican origin, and a Mexican national legally entitled to remain in the United States. The district judge denied, without prejudice, the petition to certify a class on the basis that the individual plaintiffs sought damages in addition to injunctive relief.

The individual plaintiffs subsequently moved for a preliminary injunction. In support of the motion, they provided numerous depositions and affidavits stating that INS agents, or local police officers accompanying INS agents, had entered and searched residences without consent, had forcibly entered residences, had entered and searched nonpublic areas of businesses without consent, and had detained and questioned Hispanic persons without reasonable suspicion that they were aliens. None of the individuals was presented with a warrant or other form authorizing the enforcement operations. The court was also provided with local newspaper articles on INS enforcement operations and an INS policy statement on area control operations prohibiting such operations in residential areas except in unusual circumstances. In spite of previous stipulations entered into by the INS which the INS claimed would control the alleged unlawful practices, the district court was presented with evidence that the stipulations would not effectively curtail the practices.

Based upon the record before him, which did not include any oral evidence subjected to cross-examination, the district judge made "findings of fact" that INS agents engaged in a practice of approaching homes to question, search, or arrest persons therein, without reasonable suspicion based on articulable facts to believe that aliens were present, often did so at night, and did so without a court order or the presence of probable cause or exigent circumstances. He also found that INS agents engaged in a practice of entering and conducting general searches of residences and nonpublic areas of businesses without consent, warrants, or exigent circumstances justifying the action; that agents engaged in a practice of questioning persons about their immigration status without a reasonable suspicion of alienage, solely on the basis of Hispanic appearance, use of Spanish, or location in a predominantly Hispanic area; and that agents engaged in a practice of arresting persons without a warrant and without probable cause to believe they were aliens and likely to escape before a warrant could be obtained. In addition, the district judge found that the INS sought and utilized the aid of local police in enforcing federal immigration laws, that arrest warrants were not sought or obtained during the enforcement operations, and that the INS reasonably could be expected to continue the practices unless enjoined.

The district judge entered a preliminary injunction restraining the INS from:

1) Approaching homes for the purposes of questioning, searching or arresting persons therein unless the officers have a reasonable suspicion, based on articulable facts, that aliens present in the United States in violation of the Immigration and Nationality Act are therein[.]

2) Approaching homes for the purpose of questioning, searching or arresting persons therein between the hours of 8:00 P.M. and 7:00 A.M. except, (a) in exigent circumstances and with probable cause to believe that aliens present in the United States in violation of the Immigration Act are therein; (b) upon the authority of a valid arrest warrant or other order of a court of competent jurisdiction.

3) From entering a residence or the nonpublic area of a business unless valid consent is given or the INS officer possesses a search warrant or other court order, or unless exigent circumstances exist based upon probable cause to believe that illegal aliens are present therein.

4) Engaging in general searches of homes or the nonpublic area of businesses to seek documents or persons, except (a) when a lawful arrest is made, officers may search the person arrested, and (b) may seize any evidence on the arrestee's person, and (c) may search the immediate area of arrest in order to seize any evidence within plain sight. Such searches are also authorized where exigent circumstances based upon probable cause exist and where there is cause to believe, based on articulable facts, that evidence located on the premises will be destroyed before a warrant or order can be obtained.

5) Approaching and questioning persons in homes, businesses and public places concerning their immigration status unless the officers have a reasonable suspicion, based on articulable facts and reasonable inferences drawn therefrom, that the persons questioned are aliens; persons shall not be questioned solely based on their Hispanic appearance, and/or because they are speaking Spanish and/or because they are located in an area predominantly populated by Hispanic persons.

6) Detaining and questioning persons concerning their immigration status unless the officers have a reasonable suspicion based on articulable facts and reasonable inferences drawn therefrom, that the persons detained and questioned are aliens present in the United States in violation of the Immigration Act.

7) Arresting persons, except (a) with authority of an arrest warrant issued pursuant to 8 U.S.C. Sec. 1357, or (b) with authority of a warrant or order issued by a United States District Judge or Magistrate, or (c) upon probable cause, based upon articulable facts and reasonable inferences drawn therefrom that the persons arrested are aliens present in the United States in violation of the Immigration Act and are likely to escape before an arrest warrant can be obtained.

8) Seeking or utilizing the assistance of local or State police agencies in enforcement activities conducted pursuant to 8 USC Sec. 1357, except that (a) INS agents may seek the assistance of local or State police agencies when a reasonable belief exists, based upon articulable facts, that the INS agents are, or will be in personal danger, or (b) INS agents may question persons reasonably believed to be aliens when such persons are in the custody of local or State police agencies pursuant to their lawful authority.

II

We begin by identifying how little we can assist in the final resolution of the critical issues before the district court. Until a permanent injunction is granted or denied, we are foreclosed from fully reviewing the important questions presented. Review of an order granting or denying a preliminary injunction is much more limited than review of an order granting or denying a permanent injunction. Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752-53 (9th Cir.1982) (Sports Form ). At the preliminary injunction stage, the substantive law aspects of the district court's order will be reversed only if the order rests on an erroneous legal premise and, thus, constitutes an abuse of discretion; at the permanent injunction stage, we freely review all conclusions of law. Review of factual findings at the preliminary injunction stage is, of course, restricted to the limited and often nontestimonial record available to the district court when it granted or denied the injunction motion. The district court's findings supporting its order granting or denying a permanent injunction may differ from its findings at the preliminary injunction stage because by then presentation of all the evidence has been completed. Then too, our determination whether its subsequent findings are clearly erroneous may differ from our view taken at the preliminary stage. Id.

We emphasize the ways in which review of an order granting or denying a preliminary injunction differs from review of an order granting or denying a permanent injunction because we are persuaded that in some cases, parties appeal orders granting or denying motions for preliminary injunctions in order to ascertain the views of the appellate court on the merits of the litigation. For example, here we are requested to express an opinion on very important legal questions concerning individual constitutional rights that have collided with government efforts to enforce the law. Because our review of the law...

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