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Tenorio-Serrano v. Driscoll

United States District Court, D. Arizona

July 5, 2018

Guillermo Tenorio-Serrano, Plaintiff,
James Driscoll, et al., Defendants.



         Plaintiff Guillermo Tenorio-Serrano is in custody on a DUI charge in Coconino County, Arizona. The United States Immigration and Customs Enforcement agency (“ICE”) has determined that Plaintiff is not lawfully present in the United States and has issued a detainer and administrative warrant for his arrest, which could lead to his removal from the country. Plaintiff brings this lawsuit against Coconino County Sheriff James Driscoll, Coconino County Jail Commander Matt Figueroa, the Coconino County Jail District, and members of the Coconino County Board of Supervisors, challenging their policy of holding persons in state custody for up to 48 additional hours as requested in ICE detainers and warrants. Plaintiff asks the Court to preliminarily enjoin the Sheriff's Office and the Coconino County Detention Facility (“CCDF”) from detaining him on the ICE warrant after he posts bail or resolves his state charges. Doc. 14. Plaintiff's preliminary injunction motion is fully briefed, and the Court heard oral argument on June 28, 2018. Doc. 56. For the reasons that follow, the Court will deny the request for a preliminary injunction.

         I. Facts.

         On December 11, 2017, Plaintiff was arrested for allegedly driving under the influence in violation of Arizona misdemeanor statutes and was confined in CCDF as a pretrial detainee. Doc. 18 ¶ 2. On December 12, 2017, the Flagstaff Justice Court set Plaintiff's bail at $2, 000. Id. ¶ 3. The bail was the only condition of Plaintiff's release. Id. ¶ 118. The same day, Plaintiff's sister visited CCDF to inquire whether Plaintiff would be released if the $2, 000 bail was posted. Id. ¶ 120. A CCDF employee told her that payment of the bail would not result in Plaintiff's release because an ICE detainer had been lodged against him. Id. ¶ 121. On December 15, 2017, Joseph Breckinridge offered to post Plaintiff's bail with a personal credit card, and was told by a CCDF employee that while it typically takes pre-trial detainees one hour to be released after bail is posted, Plaintiff would be held for up to 48 hours due to an “ICE hold.” Id. ¶¶ 122-28. Given this statement, Mr. Breckinridge did not tender Plaintiff's bail. Id. ¶ 130.

         A Sheriff's Detention Facility Policy and Procedure effective since 2008, and revised on July 28, 2017, provides that upon reasonable suspicion that an inmate in the facility is unlawfully present in the United States, CCDF staff must notify the Detention Removal Office (“DRO”), a subsidiary of ICE, and have the inmate speak to the DRO over the telephone. Doc. 18-1 at 1. If the DRO determines that the inmate is in the country illegally, ICE will fax two forms to CCDF to be placed in the inmate's file: a Department of Homeland Security (“DHS”) Form I-247A Notice of Action - Immigration Detainer (“detainer”), and either a DHS Form I-200 Warrant for Arrest of Alien or a DHS Form I-205 Warrant of Removal/Deportation (“ICE warrant”). Id. A hold will then be placed in the inmate's file, and, when the inmate posts bail or resolves his state charges, detention staff will notify the DRO. Id. at 1-2.

         The policy further provides that “the detainer will remain in effect and the inmate will remain in custody until” (1) the DRO or ICE sends a Form I-247A release notifying CCDF to remove the detainer, (2) ICE takes custody of the inmate, or (3) the “detainer period” expires. Id. at 2. The detainer period “commences when the local or state criminal justice agency has no other legal basis for continuing the detention[, ]” and “shall not exceed 48 hours.” Id. “In the event DHS/ICE fails to assume actual physical custody of the detainee within 48 hours of the onset of the federal detainer (including Saturdays, Sundays and holidays) the detainee must be released.” Id.

         On December 12, 2017, ICE officials in Phoenix, Arizona became aware that Plaintiff was in the custody of the Sheriff and faxed two documents to CCDF: a Form I-247A detainer and a Form I-200 ICE warrant. Doc. 18 ¶¶ 82-83; Doc. 18-4. The detainer is signed by an ICE deportation officer and states that there exists probable cause to believe that Plaintiff is a removable alien based on “[s]tatements made by the alien to an immigration officer and/or other reliable evidence.” Doc. 18-4 at 1. It is addressed to CCDF, and requests that CCDF maintain custody of Plaintiff for a period not to exceed 48 hours beyond the time he would otherwise be released. Id. The ICE warrant is signed by Barry Jansen, an authorized immigration officer, and is addressed to “any immigration officer authorized pursuant to Sections 236 and 287 of the Immigration and Nationality Act and part 287 of title 8, Code of Federal Regulations, to serve warrants of arrest for immigration violations.” Id. at 2. Neither the Sheriff's Office nor CCDF has a written “287(g)” agreement with the federal government. Doc. 18 ¶ 98; see 8 U.S.C. § 1357(g).

         Plaintiff argues that the Sheriff's policy of continuing to hold pre-trial detainees after they have satisfied all conditions for release on their state charges is unlawful because the Sheriff lacks authority under state and federal law to detain on the basis of an ICE warrant and detainer, and such detention violates the Fourth Amendment to the U.S. Constitution and Article II, § 8 of the Arizona Constitution. Doc. 14. Plaintiff seeks a preliminary injunction ordering Defendants to release him immediately upon posting of his $2, 000 bail. Id. Defendants oppose the request for injunctive relief (Docs. 22, 28), as does the United States, which has filed a detailed statement of interest pursuant to 28 U.S.C. §§ 517 and 518 (Doc. 41).

         II. Legal Standard.

         “A preliminary injunction is an extraordinary remedy never awarded as a matter of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain a preliminary injunction, a plaintiff must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20; see also All. For the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). “But if a plaintiff can only show that there are ‘serious questions going to the merits' - a lesser showing than likelihood of success on the merits - then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor,' and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting All. For the Wild Rockies, 632 F.3d at 1135). “Serious questions need not promise a certainty of success, nor even present a probability of success, but must involve a ‘fair chance of success on the merits.'” Cascadia Wildlands v. Scott Timber Co., 715 Fed.Appx. 621, 624-25 (9th Cir. 2017) (quoting Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)).

         III. Article III Standing.

         Defendants and the United States argue that Plaintiff lacks standing to challenge the Sheriff's detainer policy because he has not been injured by it. See Doc. 41 at 12-14. They argue that Plaintiff's current detention results from his DUI charge and his failure to post bail, not from Defendants' policy. They assert that any future detention under Defendants' policy is merely speculative. The Court does not agree.

         “In order to invoke the jurisdiction of the federal courts, a plaintiff must establish ‘the irreducible constitutional minimum of standing,' consisting of three elements: injury in fact, causation, and a likelihood that a favorable decision will redress the plaintiff's alleged injury.” Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The injury in fact must constitute “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citations omitted). At the preliminary injunction stage, a plaintiff must make “a clear showing of each element of standing.” Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013).

         The injury Plaintiff alleges is not his current detention - it is the 48-hour detention he will face under the ICE detainer if he posts bail. The Supreme Court has explained that an “allegation of future injury may suffice if the threatened injury is ‘certainly impending,' or there is a ‘substantial risk' that the harm will occur.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (citation omitted). Plaintiff's future injury is “certainly impending.” Defendants' written policy mandates that he be detained for up to 48 hours if CCDF has received an ICE detainer and warrant. Doc. 18-1. CCDF has received these documents and placed them in Plaintiff's file, and CCDF staff members have twice confirmed that CCDF will hold Plaintiff on the detainer if bail is posted.

         At oral argument, Defendants relied on Clapper v. Amnesty International USA, 568 U.S. 398 (2013), and argued that Plaintiff's injury is dependent on a chain of speculative future events because ICE might withdraw the detainer request, choose not to act on it, or act quickly so that Plaintiff's detention is not extended beyond his state release time. In Clapper, there was no concrete indication that the challenged statute would actually be used against the plaintiffs. Rather, the plaintiffs' injury depended on a “highly attenuated chain of possibilities” that required multiple independent actors to take actions within their discretion. 568 U.S. at 410-14. Here, every action necessary to trigger Plaintiff's injury has been taken: ICE has submitted a detainer and warrant to CCDF, CCDF has placed the documents in Plaintiff's file, and CCDF has a written policy to detain Plaintiff if he posts bail. The mere possibility that ICE might somehow change its mind or act quickly does not render Plaintiff's imminent injury unduly speculative. As the Supreme Court has explained, when an individual is subject to threatened enforcement of a law, “an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law.” Driehaus, 134 S.Ct. at 2342. Other cases are in accord. See, e.g., Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007) (“[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat - for example, the constitutionality of a law threatened to be enforced.” (emphasis in original)).

         Plaintiff has shown that his future injury is concrete, particularized, and imminent, not conjectural or hypothetical. Plaintiff presents undisputed evidence that he stands ready to post bail or have someone post bail on his behalf, and it is clear that he will be held under the ICE detainer when that occurs. The injury results from Defendants' detainer policy and is therefore fairly traceable to their conduct, and would be redressed by an injunction prohibiting Defendants from detaining him based on the ICE detainer and warrant. Plaintiff has standing.

         IV. Likelihood of Success on the Merits.

         Plaintiff makes three merits arguments. See Docs. 14, 51. First, he asserts that the Sheriff lacks authority under state law to make arrests for federal civil immigration violations. Second, he argues that federal law prohibits the Sheriff from complying with the ICE detainer. Third, he argues that detaining him under the federal detainer and warrant would violate the Fourth Amendment and a corresponding provision of the Arizona Constitution. In addressing these arguments on a preliminary injunction motion, the Court's task is to assess probabilities - whether Plaintiff is likely to succeed on these claims. The Court is not making a final decision on the merits. That decision must await a more complete record and more thorough briefing.[1]

         A. State Law Authority.

         The parties present competing interpretations of Arizona law. Plaintiff argues that county sheriffs in Arizona may act only when expressly authorized by statute, and that no statute authorizes the Sheriff to make civil immigration arrests. Defendants argue that Arizona sheriffs retain broad common law enforcement authority except where modified by statute, and that detaining Plaintiff under the ...

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