Brief filed: 06/12/2020
Gonzalez v. Immigration and Customs Enforcement
9th Circuit Court of Appeals; Case No. 20-55175, 20-55252
Decisions below 2017 WL 2559616 (C.D. Cal. June 12, 2017), 416 F.Supp.3d 995 (C.D. Cal. Sept. 27, 2019)
ICE’s use of immigration detainers violates the Fourth Amendment’s prohibition against arbitrary detention and its requirement that a person in government custody receive a prompt, neutral determination of probable cause for their arrest. ICE issues immigration detainers to local law enforcement without any neutral or even individualized probable cause determination, but based merely on the automated review of computerized databases that are incomplete and inaccurate. The subjects of these detainers are frequently held for at least 48 hours after they are otherwise eligible for release, even though most are not even taken into ICE custody. Those taken into ICE custody are frequently denied bond and remain in detention for additional weeks, months, or even years before an immigration judge rules on their removal proceedings, without any neutral review of probable cause supporting their arrest. ICE detainers also result in a wide range of negative collateral consequences even separate and apart from lengthy detention. Because ICE detainers have repercussions indistinguishable from criminal proceedings in which prompt, neutral review of probable cause is required, they must be subject to the same Fourth Amendment protections under Gerstein.
Susan Krumplitsch, Alexis Burgess, and Nandan Padmanabhan, DLA Piper LLP (US); Lena Graber, Immigrant Legal Resource Center; Sirine Shebaya, National Immigration Project of the National Lawyers Guild; Michael Kagan, University of Nevada, Las Vegas; Zoe Levine, Bronx Defenders; Leila Kang, Immigration Defense Project; Ann Benson, Washington Defender Association; Brooke Menschel, Brooklyn Defender Services; Gia Cincone, NACDL Amicus Vice Chair for the Ninth Circuit, Kilpatrick, Townsend & Stockton LLP, San Francisco, CA.