Appeals Court Says ICE Detainees Should Be Able To See A Judge In 48 Hours, Just Like Criminal Suspects

from the Fourth-for-everyone,-including-those-ICE-feels-have-no-rights dept

The Fourth Amendment says law enforcement needs probable cause to effect an arrest. Further probable cause is needed -- as determined by a neutral judge -- to continue holding this person. This isn't even controversial. It has been established law for years. And yet, when ICE goes hunting for people it wants to deport, the Fourth Amendment just kind of vanishes. This happens even when ICE is wrong, and the person officers want to eject from the country is actually a US citizen.

It seems awful to have to describe this recent Ninth Circuit Court of Appeals as "upending" the Fourth Amendment status quo. It really isn't. It simply affirms what's far too often been ignored by ICE and other border security agencies.

Here are the facts leading up to this lawsuit, as recounted in the court's decision [PDF]:

Gerardo Gonzalez is a United States citizen. He has never been removable from the United States. The United States Immigration and Customs Enforcement (ICE), however, came to a different conclusion in December 2012. After Gonzalez was booked on state law criminal charges by the Los Angeles Police Department (LAPD), an ICE agent ran his name through electronic databases, an automated procedure that ICE uses to determine whether an individual is a removable noncitizen. Because one database flagged Gonzalez’s birthplace as being in Mexico, and the agent could not find records showing that Gonzalez had lawfully entered the United States, the agent determined that Gonzalez was removable from the United States. ICE issued an immigration detainer, requesting that the Los Angeles Sheriff’s Department (LASD) detain Gonzalez for up to an additional five days in the Los Angeles County Jail after when he was entitled to release from custody on state criminal charges so that ICE could take him into its custody.

This situation used to be even worse. Prior to December 2012, ICE didn't even need probable cause to issue a detainer. So, even if people were free to go, that freedom to go could be removed if ICE had done nothing more than initiated an investigation into whether the person targeted by a detainer was actually removable. Thanks to some litigation, ICE began requiring probable cause. But that probable cause was limited to an officer's "belief" that a person was removable. Because one database said Gonzalez's birthplace was Mexico and the officer could find no records of legal entry, Gonzalez was held for another five days after he was prepared to post bail for the state criminal charges. Here's how this worked out for Gonzalez:

On December 31, 2012, ICE issued the immigration detainer against him. Although the detainer had no effect on Gonzalez’s custody when lodged due to a then-applicable parole hold, Gonzalez became eligible for release on bail from LASD custody on state criminal charges in May 2013 when the hold expired. He attempted to post bail with the assistance of his girlfriend, who went to a bondsman. The bondsman informed her that Gonzalez was subject to an immigration detainer. The detainer requested that LASD keep him in custody for up to five additional days after his release from custody on state criminal charges. The detainer, however, prevented him from posting bail. Even if he posted the $95,000 bail as he had intended to do, Gonzalez would remain in custody. Indeed, it was LASD policy to comply with all ICE detainers.

ICE dropped the detained when Gonzalez sued, presumably in hopes of getting him to drop the lawsuit. It didn't happen. And now there's precedent on the books that says ICE can't do this sort of thing in future.

The lower court said ICE can't rely solely on the database used in this case to make probable cause determinations. The database is too inaccurate to be relied on, according to the district court.

In finding for Plaintiffs on this Database Claim, the district court concluded that the databases are unreliable for determining probable cause of removability, and thus the Government violates the Fourth Amendment by issuing detainers based solely on searches of the databases.

The Ninth Circuit says the district court didn't do enough fact-finding to make this determination. However, the Appeals Court does reach this conclusion, which has the potential to vastly alter the way ICE enforces detainers. Without probable cause, ICE can't hold people more than 48 hours on a detainer or, as in this case, five days past the point the person was due to be released by local law enforcement. Detainees should be treated the same as arrestees and given their day before the judge as soon as possible.

[T]he panel concluded that, because the Fourth Amendment requires probable cause to seize or detain an individual for a civil immigration offense, it follows that the Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate to justify continued detention pursuant to an immigration detainer.

Thanks to Trump, our immigration courts are already overloaded. And again, thanks to Trump, ICE keeps loading them up even more by going after anyone it believes is subject to removal, rather than concentrating on the "dangerous" immigrants this Administration claims infest our nation. If ICE can't get them before a judge within 48 hours, they should be free to go, just like anyone arrested on actual criminal charges.

It hardly makes sense for the Fourth Amendment to be less effective for people detained on civil violations. The Ninth Circuit Appeals Court has corrected that error and its reach covers a whole lot of border territory.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, 9th circuit, dhs, due process, gerardo gonzalez, ice, probable cause


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Whoever, 29 Sep 2020 @ 3:47pm

    Immigration judges

    Further probable cause is needed -- as determined by a neutral judge

    I see that the actual judgement refers to "magistrate judges", but in the case of immigration judges, these are anything but neutral.

    It's not reasonable to believe that judges who can be fired on a whim and are tasked with quotas are remotely neutral.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Sep 2020 @ 7:16pm

      Re: Immigration judges

      Um, what? Why is everyone on the Internet batshit crazy?

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 30 Sep 2020 @ 12:15am

        Re: Re: Immigration judges

        "Um, what? Why is everyone on the Internet batshit crazy?"

        You think flawed human beings obtain infallibility when they don the robes and grasp the gavel? If so I may have to point out to you that your grasp of reality is indeed tenuous enough to obtain you the descriptor of "batshit crazy".

        Now go back and read the OP again. This particular line, right at the beginning;

        "This happens even when ICE is wrong, and the person officers want to eject from the country is actually a US citizen."

        ...and apparently probable cause has now been confirmed by the ninth circuit to establish that based on an officer's "belief" that a person is removable. The precedent example being that the "suspect" was born outside of US borders and therefore suspicious.

        Let's just add that to the previous examples of ICE trying to evict exchange students and harrassing green card holders and what we see is a judiciary bent on closing the US off completely from the rest of the world. By now I'm not even sure that would be a bad thing for the rest of the world, as disastrous as it might be for the US.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Sep 2020 @ 4:28pm

    "We are completely incapable of looking up county birth certificates."

    reply to this | link to this | view in chronology ]

    • identicon
      MightyMetricBatman, 29 Sep 2020 @ 5:08pm

      Re:

      "We need you to rubber stamp our lazy officers." - King Cold of ICE

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 30 Sep 2020 @ 12:18am

      Re:

      In this case the issue was that the officer found the birth certificate stating Gonzales was born in Mexico. So it's a bit worse than that, they can't locate the citizenship record.

      When they've been told you can't rely on the birth certificate of a sitting President I guess the poor officers of the ICE have to assume the only indicator on whether a person is a US citizen or not they can rely on is whether the person looks a little too hispanic or african to be an actual american.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 30 Sep 2020 @ 5:09am

        Re: Re:

        In this case the issue was that the officer found the birth certificate stating Gonzales was born in Mexico. So it's a bit worse than that, they can't locate the citizenship record.

        No, they found a database entry that claimed he was born in Mexico, not a birth certificate. If that's wrong, then there would be no naturalization records to find as they were never needed. It's also assuming the all naturalization records everywhere for all time are in a single database that can be searched. You know these chumps put no effort into any kind of search after finding the record claiming he was Mexican.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 1 Oct 2020 @ 7:56am

          Re: Re: Re:

          "You know these chumps put no effort into any kind of search after finding the record claiming he was Mexican."

          Mea Culpa.

          ...it's depressing to consider that every time so far when I've given US administrative systems credit, they prove me wrong...

          reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 29 Sep 2020 @ 5:37pm

    ICE is not just a Constitution-free zone...

    ...when ICE goes hunting for people it wants to deport, the Fourth Amendment just kind of vanishes.

    When ICE goes hunting, law kinda vanishes. The raid and arrest of Kim Dotcom in 2012 was done before jurisdiction was determined. Since then, ICE just kinda does what it wants, knowing its big brother the Department of Homeland Security (or since 2017, the White House) will make it legal after the fact.

    Again with the remarkable and distressing similarity to the German Schutzstaffel.

    And they're about as well behaved.

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 30 Sep 2020 @ 4:27pm

    Cheech!

    It's high time for a sequel to the 1987 Cheech Marin classic Born In East LA.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 3 Oct 2020 @ 4:28pm

      Re: Cheech!

      When the first opportunity you get to protest your deportation and maybe prove your citizenship is at the gates of the US embassy in whatever foreign country ICE dumps you in, it proves beyond doubt that those hearings ICE considers very vaguely optional are in fact necessary.

      I have no idea where it comes from, but I keep running into people who have the idea that a trial is a privilege that the clearly guilty don't deserve - rather than the means by which the government finds out if someone is guilty or not in the first place.

      And the bar for 'clearly guilty' pre-trial keeps creeping lower in direct proportion to how opposed to the viewer's politics the accused appears to be.

      reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.