United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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).
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
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)).
Article III Standing.
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.
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).
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.
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)).
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.
Likelihood of Success on the Merits.
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.
State Law Authority.
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 ...