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

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.