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United States v. State of California

United States Court of Appeals, Ninth Circuit

April 18, 2019

United States of America, Plaintiff-Appellant,
v.
State of California; Gavin Newsom, Governor of California; Xavier Becerra, Attorney General of California, Defendants-Appellees.

          Argued and Submitted March 13, 2019 San Francisco, California

          Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding D.C. No. 2:18-cv-00490-JAM-KJN

          Daniel Tenny (argued), Brad Hinshelwood, Laura Myron, Katherine Twomey Allen, Daniel Tenny, and Mark B. Stern, Appelate Staff; Hashim M. Mooppan, Deputy Assistant Attorney General; McGregor Scott, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; Joshua S. Press, Francesca Genova, Joseph A. Darrow, and Lauren C. Bingham, Trial Attorneys; Erez Reuveni, Assistant Director; August Flentje, Special Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellant.

          Aimee Feinberg (argued), Deputy Solicitor General; Kristin Liska, Associate Deputy Solicitor General; Lee I. Sherman, Maureen C. Onyeagbako, and Cherokii DM Melton, Deputy Attorneys General; Christine Chuang, Anthony Hakl, and Satoshi Yanai, Supervising Deputy Attorneys General; Thomas S. Patterson, Senior Assistant Attorney General; Edward C. DuMont, Solicitor General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellees.

          David L. Caceres, Assistant City Attorney; Lonnie J. Eldridge, City Attorney; Office of the City Attorney, Simi Valley, California; for Amicus Curiae City of Simi Valley.

          Anthony S. Chavez, Daniel L. Richards, and Matthew E. Richardson, Best Best & Krieger LLP, Irvine, California, for Amicus Curiae City of Lake Forest.

          Christopher J. Hajec, Elizabeth A. Hohenstein, and Mark S. Venezia, Immigration Reform Law Institute, Washington, D.C., for Amici Curiae National Law Enforcement Associations and Victims' Organizations.

          Kyle D. Hawkins, Solicitor General; Ari Cuenin and Eric A. White, Assistant Solicitors General; Jeffrey C. Mateer, First Assistant Attorney General; Ken Paxton, Attorney General; Office of the Attorney General, Austin, Texas; for Amici Curiae States of Texas, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Nebraska, Nevada, Ohio, Oklahoma, South Carolina, West Virginia, and Governor Phil Bryant of the State of Mississippi.

          Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, D.C.; Sarah R. Rehlberg and Dale L. Wilcox, Immigration Reform Law Institute, Washington, D.C.; for Amici Curiae Municipalities and Elected Officials.

          John P. Cooley, Senior Deputy County Counsel; Thomas E. Montgomery, County Counsel; Office of County Counsel, San Diego, California; for Amicus Curiae County of San Diego.

          Sara J. Eisenberg, Aileen M. McGrath, and Tara M. Steeley, Deputy City Attorneys; Yvonne R. Mere, Chief of Complex and Affirmative Litigation; Ronald P. Flynn, Chief Deputy City Attorney; Jesse C. Smith, Chief Assistant City Attorney; Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Amicus Curiae City and County of San Francisco.

          Benjamin G. Shatz, Michael G. Nordon, and Esra A. Hudson, Manatt Phelps & Phillips LLP, Los Angeles, California, for Amici Curiae Faith-Based Organizations.

          Harit U. Trivedi, Strefan Fauble, Valerie L. Flores, Deputy City Attorneys; James P. Clark, Chief Deputy City Attorneys; Leela A. Kapur, Chief of Staff; Michael N. Feuer, City Attorney; Office of the City Attorney, Los Angeles, California; for Amicus Curiae City of Los Angeles.

          David M. Zionts, Ivano M. Ventresca, and Eric H. Holder Jr., Covington & Burling LLP, Washington, D.C.; Jessica R. Hanson and Daniel N. Shallman, Covington & Burling LLP, Los Angeles, California; for Amicus Curiae California State Senate.

          Matthew J. Piers, Caryn C. Lederer, and Chirag G. Badlani, Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois;

          Daniel B. Rice, Joshua A. Geltzer, and Mary B. McCord, Institute for Constitutional Advocacy and Protection, Washington, D.C.; for Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders.

          Fredrick S. Levin, Daniel R. Paluch, Ali M. Abughedia, and Michael A. Rome, Santa Monica, California, for Amicus Curiae American Jewish Committee.

          Bradley S. Phillips and Gregory D. Phillips, Munger Tolles & Olson LLP, Los Angeles, California, for Amici Curiae Immigration, Labor and Employment Law Scholars re: AB 450.

          Harry Sandick and Michael D. Schwartz, Patterson Belknap Webb & Tyler LLP, New York, New York; Kevin A. Calla, Law Office of Kevin A. Calla, Roseville, California; for Amici Curiae Administrative Law, Constitutional Law, Criminal Law and Immigration Law Scholars.

          Margaret L. Carter and Daniel R. Suvor, O'Melveny & Myers LLP, Los Angeles, California; Erin Bernstein and Malia McPherson, Deputy City Attorneys, Maria Bee, Chief Assistant City Attorney; Barbara J. Parker, City Attorney; Office of the City Attorney, Oakland, California; Javier Serrano, Deputy County Counsel; Kavita Narayan, Lead Deputy County Counsel; Greta S. Hansen, Chief Assistant County Counsel; James R. Williams, County Counsel; Office of the County Counsel, San Jose, California; for Amici Curiae 29 California Counties, Cities, and Local Officials.

          Abigail K. Coursolle, Ian McDonald, Joe McLean, and Sarah Grusin, National Health Law Program, Los Angeles, California, for Amici Curiae National Health Law Program, Asian Law Alliance; Bay Area Lawyers for Individual Freedom; California Center for Rural Policy; California National Organization for Women; Center for Civil Justice; Center for Medicare Advocacy, Inc.; Citizens for Choice; Community Legal Aid Society, Inc.; Congregation of Our Lady of Charity of the Good Shepherd, US Provinces; CWDA; Desert AIDS Project; Disability Rights California; Disability Rights Education and Defense Fund; Disability Rights Legal Center; Equality California; Florida Legal Services, Inc.; In Our Own Voice: National Black Women's Reproductive Justice Agenda; Kentucky Equal Justice Center; Legal Aid Justice Center; Legal Aid Society of San Mateo County; Legal Council for Health Justice; Maternal and Child Health Access; Medical Students for Choice; National Asian Pacific American Families Against Substance Abuse; NARAL Pro-Choice California; National Asian Pacific American Women's Forum; National Center for Law and Economic Justice; National Hispanic Medical Association; National Institute for Reproductive Health; National Organization for Women Foundation; National Women's Law Center; Northwest Health Law Advocates; Physicians for Reproductive Health; Planned Parenthood Affiliates of California; Positive Women's Network – USA; Public Justice Center; The Children's Partnership; The New York Immigration Coalition; The Praxis Project; The Sargent Shriver National Center on Poverty Law; The Southwest Women's Law Center; and Western Center on Law & Poverty.

          MacKenzie Fillow, John Moore, Noah Kazis, Aaron Bloom, and Richard Dearing, Of Counsel; Zachary W. Carter, Corporation Counsel; New York City Law Department, New York, New York, for Amici Curiae City of New York and 21 Local Governments.

          Before: MILAN D. SMITH, JR., PAUL J. WATFORD, and ANDREW D. HURWITZ, Circuit Judges.

         SUMMARY[*]

         Immigration

         In a case in which the United States sought to enjoin the enforcement of three laws California enacted expressly to protect its residents from federal immigration enforcement, the panel affirmed in part and reversed in part the district court's denial in large part of the United States' motion for a preliminary injunction.

         The United States challenged three California laws: AB 450, which-as relevant to this appeal-requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities.

         The United States sought a preliminary injunction, arguing that these laws violated the doctrine of intergovernmental immunity and the doctrine of conflict preemption. The district court concluded that the United States was unlikely to succeed on the merits of many of its claims, and so denied in large part the motion for a preliminary injunction.

         With respect to AB 450, which requires employers to alert employees before federal immigration inspections, the panel affirmed the district court's denial of a preliminary injunction. The panel rejected the United States' contention that the provisions are invalid under the doctrine of intergovernmental immunity and the doctrine of conflict preemption, concluding that the district court did not abuse its discretion when it concluded that AB 450's employee-notice provisions neither burden the federal government nor conflict with federal activities.

         With respect to AB 103, which imposes inspection requirements on facilities that house civil immigration detainees, the panel affirmed the denial of a preliminary injunction as to those provisions of AB 103 that duplicate inspection requirements otherwise mandated under California law and are imposed on state and local detention facilities.

         However, the panel concluded that one subsection of AB 103-California Government Code section 12532(b)(1)(C), which requires examination of the circumstances surrounding the apprehension and transfer of immigration detainees-discriminates against and impermissibly burdens the federal government, and so is unlawful under the doctrine of intergovernmental immunity. Specifically, the panel concluded that the district court erred by relying on a de minimis exception to the doctrine of intergovernmental immunity in analyzing this provision. The panel concluded that Supreme Court case law compels the rejection of such a de minimis exception and held that any economic burden that is discriminatorily imposed on the federal government is unlawful. The panel also concluded that the district court was incorrect in concluding that the review required by the provision appeared no more burdensome than reviews required under other California provisions. Therefore, the panel reversed the district court's denial of a preliminary injunction as to California Government Code section 12532(b)(1)(C).

         With respect to SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities, the panel affirmed the district court's denial of a preliminary injunction. The panel rejected the United States' argument that the provisions violate the doctrine of obstacle preemption and the doctrine of intergovernmental immunity, concluding that the district court did not abuse its discretion when it concluded that any obstruction caused by SB 54 is consistent with California's prerogatives under the Tenth Amendment and the anticommandeering rule.

         The panel also rejected the United States' contention that SB 54's information-sharing restrictions-which prohibit state and local law enforcement agencies from providing information regarding a person's release date from incarceration or other personal information-conflict with 8 U.S.C. § 1373, which provides that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual." Although SB 54 expressly permits the sharing of information about immigration status, the United States argued that section 1373 actually applies to more information than just immigration status, and hence that SB 54's prohibition on sharing other information created a direct conflict. The panel disagreed, explaining that the language of section 1373 is naturally understood as a reference to a person's legal classification under federal law.

         Finally, the panel addressed California's argument that the three other factors for determining whether to issue a preliminary injunction-irreparable harm, the balance of the equities, and the public interest-provide an alternative basis for affirming the district court's denial of a preliminary injunction. Because the panel concluded that the United States is unlikely to succeed on the merits of its challenges to AB 450 and SB 54, the panel considered these factors only as applied to the provision of AB 103 that imposes an impermissible burden on the federal government. The panel concluded it was not prepared, in the first instance, to affirm the district court's denial of a preliminary injunction as to this provision based on equitable considerations. However, the panel encouraged the district court, on remand, to reexamine the equitable factors in light of the evidence in the record.

          OPINION

          SMITH, CIRCUIT JUDGE

         Defendant-Appellee State of California (California) enacted three laws expressly designed to protect its residents from federal immigration enforcement: AB 450, which requires employers to alert employees before federal immigration inspections; AB 103, which imposes inspection requirements on facilities that house civil immigration detainees; and SB 54, which limits the cooperation between state and local law enforcement and federal immigration authorities. Plaintiff-Appellant United States of America (the United States) challenged these enactments under the Supremacy Clause and moved to enjoin their enforcement. The district court concluded that the United States was unlikely to succeed on the merits of many of its claims, and so denied in large part the motion for a preliminary injunction.

         The district court did not abuse its discretion when it concluded that AB 450's employee-notice provisions neither burden the federal government nor conflict with federal activities, and that any obstruction caused by SB 54 is consistent with California's prerogatives under the Tenth Amendment and the anticommandeering rule. We therefore affirm the district court's denial of a preliminary injunction as to these laws. We also affirm the denial of a preliminary injunction as to those provisions of AB 103 that duplicate inspection requirements otherwise mandated under California law. But we conclude that one subsection of AB 103-codified at California Government Code section 12532(b)(1)(C)-discriminates against and impermissibly burdens the federal government, and so is unlawful under the doctrine of intergovernmental immunity. Because the district court relied on incorrect law in analyzing this provision, we reverse its preliminary injunction order in part.

         FACTUAL AND PROCEDURAL BACKGROUND

         I. Factual Background

         We first review the relevant federal statutory framework before describing the three California laws at issue in this case.

         A. Federal Statutory Framework

         i. The INA

         "The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens." Arizona v. United States (Arizona II), 567 U.S. 387, 394 (2012); see also U.S. Const. art. I, § 8, cl. 4 (granting Congress the power to "establish an uniform Rule of Naturalization"); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 315–18 (1936) (exploring the federal government's inherent sovereign powers in the realm of foreign affairs). Congress exercises its authority to regulate the entry, presence, and removal of noncitizens through the Immigration and Nationality Act (INA) and other related laws, and "has specified which aliens may be removed from the United States and the procedures for doing so." Arizona II, 567 U.S. at 396. "A principal feature of the removal system is the broad discretion exercised by immigration officials." Id. For example, "an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States," and until that decision, federal officials generally may either detain her or release her on bond. 8 U.S.C. § 1226(a). Detention is mandatory, however, for certain categories of noncitizens, including those who are inadmissible or removable due to criminal convictions. Id. § 1226(c).

         "The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal," which might include the "purchase or lease of [an] existing prison, jail, detention center, or other comparable facility suitable for such use." Id. § 1231(g); see also id. § 1103(a)(11) (permitting agreements with states and localities "for the necessary construction, physical renovation, acquisition of equipment, supplies or materials required to establish acceptable conditions of confinement and detention"). The United States notes that the Department of Homeland Security (DHS) "regularly uses nine facilities in California to house civil immigration detainees," which collectively have a capacity of approximately 5,700 detainees. The interplay between federal and state authorities also manifests itself when noncitizens subject to removal are also the targets of state or local criminal enforcement. The INA requires that DHS remove an alien who is subject to a final removal order "within a period of 90 days" from "the date the alien is released from [state or local] detention or confinement"; however, it "may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment." Id. § 1231(a)(1), (4) (emphasis added). After release, federal authorities "shall detain the alien," and "[u]nder no circumstance during the removal period shall the Attorney General release an alien who has been found inadmissible . . . or deportable." Id. § 1231(a)(2).

         The United States asserts that "Congress contemplated cooperation between federal and state officials" when it allowed noncitizens to complete state criminal custody before removal, and points to "other provisions of the INA [that] likewise reflect that expectation of collaboration." For example, the federal government is required to make information available to state and local authorities indicating "whether individuals arrested . . . for aggravated felonies are aliens," and to provide liaisons and computer resources in connection with aliens charged with aggravated felonies. Id. § 1226(d)(1). Additionally, DHS must respond to inquiries from state or local officials "seeking to verify or ascertain the citizenship or immigration status of any individual." Id. § 1373(c). In turn, "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [DHS] information regarding the citizenship or immigration status, lawful or unlawful, of any individual." Id. § 1373(a). Additionally, "[f]ederal law specifies limited circumstances in which state officers may perform the functions of an immigration officer," such as "when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government." Arizona II, 567 U.S. at 408 (citing 8 U.S.C. §§ 1103(a)(10), 1252c, 1324(c), 1357(g)(1)). "State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody." Id. at 410.

         ii. The IRCA

         Congress enacted the Immigration Reform and Control Act of 1986 (IRCA) "as a comprehensive framework for 'combating the employment of illegal aliens.'" Arizona II, 567 U.S. at 404 (quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)). Under the IRCA, employers may not knowingly hire or employ aliens without proper work authorization. 8 U.S.C. § 1324a(a)(1)–(2). Employers in violation of the IRCA are subject to civil and, in cases of "a pattern or practice of violations," criminal penalties. Id. § 1324a(e)–(f). Although the IRCA

does not impose federal criminal sanctions on the employee side . . . . some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employment are not eligible to have their status adjusted to that of a lawful permanent resident. Aliens also may be removed from the country for having engaged in unauthorized work. In addition to specifying these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means.

Arizona II, 567 U.S. at 404–05 (citations omitted).

         To ensure compliance with the IRCA, employers must verify the authorization statuses of prospective employees. 8 U.S.C. § 1324a(a)(1)(B), (b). Verification is facilitated through a uniform inspection process; employers are required to retain documentary evidence of authorized employment, to which "immigration officers and administrative law judges [] have reasonable access." Id. § 1324a(b), (e)(2)(A). The information and documentation associated with the verification process may only be used to enforce the IRCA and INA, as well as for prosecution under certain criminal statutes. Id. § 1324a(b)(5), (d)(2)(F)–(G).

         B. California's Statutes

         This case centers on three laws enacted by the California legislature with the express goal "of protecting immigrants from an expected increase in federal immigration enforcement actions." Hearing on AB 450 Before theAssemb. Comm. ...


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