Equal Protection • 42 U.S.C. §1983 • Wrongful Detention • Immigration Detainer • 8 C.F.R. §287.7 • Mandatory Nature

Galarza v. Szalczyk, PICS Case No. 14-0337 (3d Cir. March 4, 2014) Fuentes, C.J.; Barry, C.J., dissenting (28 pages).

Immigration detainers issued pursuant to 8 C.F.R. §287.7 do not impose mandatory obligations on state and local law enforcement agencies to detain suspected aliens subject to removal; therefore, the defendant county could not argue that its own policy to honor such detainer requests did not cause the deprivation of plaintiff’s constitutional rights. Reversed and remanded.

On Nov. 20, 2008, plaintiff, a U.S. citizen born in New Jersey, was arrested and charged with conspiracy to deliver cocaine in violation of Pennsylvania law. At the time of his arrest, plaintiff had a wallet which contained his Pennsylvania driver’s license, Social Security card, debit card and health insurance card.

That evening, plaintiff went through the booking process, wherein he told prison officials that he was born in New Jersey. Plaintiff posted bail but instead of being released, he was held in custody by Lehigh County under an immigration detainer issued by federal immigration officials.

An Immigration and Customs Enforcement (ICE) agent had filed an immigration detainer with Lehigh County Prison, describing plaintiff as a suspected “alien.” Three days after plaintiff posted bail, immigration officials learned that he was a U.S. citizen. The detainer was withdrawn and plaintiff was released.

Thereafter, plaintiff filed this action pursuant to 42 U.S.C. §1983, asserting that Lehigh County detained him without probable cause for more than 48 hours, without notice of the basis for his detention or the ability to contest it. The district court dismissed plaintiff’s complaint as against Lehigh County.

The court concluded that the county could not be held responsible for plaintiff’s detention because it was compelled to follow the immigration detainer. The court relied on 8 C.F.R. §287.7, concluding that detainers issued pursuant to the regulation impose mandatory obligations upon state or local law enforcement agencies to follow such a detainer once it is received.

Plaintiff filed this appeal to the Third Circuit. The parties’ dispute centered on whether immigration detainers issued pursuant to 8 C.F.R. §287.7 impose mandatory obligations on state and local law enforcement agencies to detain suspected aliens subject to removal.

Plaintiff argued that his detention resulted from Lehigh County’s stated policy and practice of enforcing all immigration detainers received from ICE, regardless of whether ICE had, or even claimed to have, probable cause to detain the suspected immigration violator.

The Third Circuit agreed with plaintiff’s assertion that immigration detainers do not and cannot compel a state or local law enforcement agency to detain suspected aliens subject to removal. The court considered the specific language of the regulation and found that it was not mandatory in nature.

Moreover, “no U.S. Court of Appeals has ever described ICE detainers as anything but requests.” In addition, no provisions of the Immigration and Nationality Act, set forth at 8 U.S.C. §1101, authorize federal officials to command local or state officials to detain suspected aliens subject to removal.

Finally, all federal agencies and departments that have an interest in the subject matter have consistently described such detainers as requests. “Even if there were any doubt about whether immigration detainers are requests and not mandatory orders to local law enforcement officials, settled constitutional law clearly establishes that they must be deemed requests[,]” the court stated.

The court noted that under the Tenth Amendment to the U.S. Constitution, immigration officials may not order state and local officials to imprison suspected aliens subject to removal at the request of the federal government, observing that the U.S. Supreme Court has struck down portions of federal laws that compelled state or local state agencies on anti-commandeering grounds.

The court read 8 C.F.R. §287.7 as authorizing only permissive requests that local law enforcement agencies keep suspected aliens subject to deportation in custody. Thus, Lehigh County could not use as a defense that its own policy did not cause the deprivation of plaintiff’s constitutional rights. Accordingly, the court vacated and remanded for further proceedings.