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. ...