Legal Sidebar
Federal Appeals Court Finds That Probable Cause Is
Required to Hold Aliens Pursuant to Immigration
Detainers
09/08/2015
The recent decision by the U.S. Court of Appeals for the First Circuit in
Morales v. Chadbourne could complicate
current debates about “sanctuary cities,” a term which some use to describe jurisdictions that decline to honor
immigration detainers. An immigration detainer is a document whereby U.S. Immigration and Customs Enforcement
(ICE) requests that another law enforcement agency take certain actions, which can include holding an alien for up to
48 hours after the alien would otherwise have been released so that ICE may assume custody, or notifying ICE prior to
releasing or transferring an alien. Recent reports that an alien who shot and killed a woman after being released by San
Francisco authorities had been the subject of an immigration detainer, which the San Francisco Sheriff
declined to
honor, have prompted some Members of Congress to propose measures that encourage states and localities to honor
immigration detainers or otherwise cooperate in immigration enforcement.
Overview of the Litigation in Morales
The litigation in
Morales arose from two instances—one in July 2004 and another in May 2009—in which a U.S.
citizen, Ada Morales, was held by local or state officials in Rhode Island pursuant to an immigration detainer. Ms.
Morales had been born in Guatemala, but immigrated to the United States in the 1980s and was naturalized in 1995. In
the more recent of these two incidents, Ms. Morales was held pursuant to a detainer for 24 hours after she would have
been released on the state criminal charges, so that ICE could investigate her removability (a practice that ICE has since
abandoned). Ms. Morales asserts that she informed state officials she was a citizen, but was not released until ICE
confirmed this. An ICE agent allegedly apologized to Ms. Morales upon her release, but told her that “it could happen
again in the future.”
Ms. Morales subsequently filed suit to enjoin various federal and state defendants from holding her pursuant to an
immigration detainer in the future. She also sought monetary damages for violations of her Fourth Amendment right to
be free from unreasonable seizures, among other things. In response, the federal defendants—who include Mr.
Chadbourne—asked the reviewing federal district court to grant them summary judgment on the basis of qualified
immunity. Determining whether a defendant is entitled to such immunity generally entails a two-part analysis,
considering (1) whether the facts alleged show that the defendant’s conduct violated a constitutional right, and (2)
whether the contours of this right are “clearly established” under the then-existing law so that a reasonable officer
would have known that the conduct was unlawful. There
need not be a case directly on point for the contours of a right
to be “clearly established,” but existing precedent must have placed the constitutional or other question beyond debate.
The ICE officials’ motion for summary judgment was denied by the district court in
February 2014. The officials then
filed an interlocutory appeal with the First Circuit. (An interlocutory appeal is a pre-trial appeal.)
First Circuit’s Decision in Morales
The First Circuit’s decision in
Morales reflects the procedural posture of the case in that certain facts alleged by the
plaintiff are presumed to be true, among other things. Nonetheless, the decision is notable in that it establishes, in a way
no prior decision has, the legal authority for the issuance of immigration detainers. It is also the first appellate decision
to address the Fourth Amendment issues raised by holds pursuant to immigration detainers (previously, the issue has
been addressed at the district court level).
According to the First Circuit, the statutory authority for “warrantless [immigration] enforcement actions, including the
issuance of detainers,” derives from Section 287 of the Immigration and Nationality Act (INA). Specifically, Section
287(a) permits immigration officers to arrest without a warrant any alien if there is “reason to believe that the alien ... is
in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be
obtained.” Section 287(d) similarly permits warrantless arrests of aliens charged with controlled substance offenses, if
there is “reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not
lawfully present in the United States.” As the First Circuit noted, courts have “consistently held” that the phrase “reason
to believe” in Section 287
must be construed, in light of the Fourth Amendment, to mean “probable cause” that a
violation has been committed. Thus, the First Circuit concluded that it was beyond debate, in 2009, that immigration
officers needed probable cause to arrest and detain individuals without a warrant to investigate their immigration status.
In so finding, the First Circuit noted that the Fourth Amendment permits law enforcement officers to stop and question
individuals in circumstances where probable cause is lacking, so long as there is reasonable suspicion that an offense
has been committed. However, it also found that “there could be no question in 2009 that detention authorized by an
immigration detainer would require more than just reasonable suspicion.” It did so because, in its view, the pre-2009
cases “clearly show[ed] that 48 hours of imprisonment—which is what the detainer requests ...—falls well on the arrest
side of the divide.” The First Circuit based this conclusion, in part, on the Supreme Court’s 1983 decision in United
States v. Place, wherein the Court indicated that it had never approved the seizure of a person for the “prolonged 90-
minute period” involved in that case based solely on reasonable suspicion. The First Circuit also cited a
decision by the
U.S. Court of Appeals for the Tenth Circuit wherein that court noted that it had not found any case in any circuit
upholding detention for longer than 90 minutes based on reasonable suspicion, as well as a 1971 immigration case
which upheld a stop based on reasonable suspicion because it was “minutes rather than hours” in duration.
The First Circuit also rejected the ICE officers’ argument that there were no cases in 2009 which had specifically held
that probable cause was required in the “difficult and unique circumstances” of issuing detainers. In so doing, the First
Circuit opined that there were no such cases because the then-Immigration and Naturalization Service (INS) had
stipulated in the 1985 case of Cervantez v. Whitfield that a detainer “may only be authorized ... when the officer has
determined there is probable cause.” The First Circuit also took the view that the issuance of detainers is not
complicated by aliens being held pursuant to detainers by state and local officials, not federal ones, because all officers
are “
responsible for the natural consequences of [their] actions,” and the detention of an alien by state or local officials
is the “natural consequence” of a federal official issuing an immigration detainer. The court similarly took the view that
probable cause should be easier—not more difficult—to obtain in cases where detainers are issued for aliens who are
already being held for state and local offenses than in other cases because immigration officers have access to the aliens
and their records.
Implications of the First Circuit’s Decision
The
Morales decision is only binding precedent within the First Circuit. However, if the court’s reasoning were upheld
on any appeal or adopted by other circuits, it would appear to complicate certain efforts to expand or strengthen the use
of immigration detainers to hold aliens so that ICE may assume custody. Among other things, the decision suggests that
ICE’s ability to resume its prior practice of issuing detainers to request that aliens be held so that ICE can investigate
their removability may be limited by the Fourth Amendment. Lengthening the period of holds pursuant to detainers
would also appear to raise constitutional issues, because 48 hours has generally been seen as the maximum period of
detention reasonable for a warrantless arrest where there is probable cause to believe an offense has been committed.