Case: 5:17-cv-54 As of: 03/17/2020 06:23 PM CDT 1 of 2
CLOSED,CONSOLIDATED,MEMBER_CASE
U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:17−cv−00054−OLG

Trujillo Santoyo v. United States of America Assigned to: Chief Judge Orlando L. Garcia Demand: $1,000,000 Lead case: 5:16−cv−00855−OLG Member case: (View Member Case) Cause: 28:2674 Federal Tort Claims Act
Plaintiff
Julio Trujillo Santoyo

Date Filed: 01/26/2017 Date Terminated: 10/25/2017 Jury Demand: None Nature of Suit: 360 P.I.: Other Jurisdiction: U.S. Government Defendant
represented by Juan Carlos Rodriguez De Mott, McChesney, Curtright & Armendariz, LLP 800 Dolorosa, Suite 100 San Antonio, TX 78207 210−354−1844 Fax: 210−212−2116 Email: juancarlos@dmcausa.com ATTORNEY TO BE NOTICED

V. Defendant United States Of America

represented by Gary L. Anderson Assistant United States Attorney 601 NW Loop 410, # 600 San Antonio, TX 78216 (210) 384−7365 Fax: 210/384−7312 Email: stephanie.karam@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/26/2017 01/26/2017
01/26/2017 03/23/2017 03/23/2017 03/24/2017

# Docket Text
1 COMPLAINT ( Filing fee $ 400 receipt number 0542−9237650). No Summons requested at this time, filed by Julio Trujillo Santoyo. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit)(Rodriguez, Juan) (Entered: 01/26/2017)
Case Randomly Assigned to Judge David A. Ezra. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (wg) (Entered: 01/27/2017)
If ordered by the court, all referrals will be assigned to Magistrate Judge Bemporad (wg) (Entered: 01/27/2017)
2 NOTICE of Attorney Appearance by Gary L. Anderson on behalf of United States Of America. Attorney Gary L. Anderson added to party United States Of America(pty:dft) (Anderson, Gary) (Entered: 03/23/2017)
3 Joint MOTION to Consolidate Cases by Julio Trujillo Santoyo. (Attachments: # 1 Proposed Order)(Rodriguez, Juan) (Entered: 03/23/2017)
5 ORDER GRANTING JOINT MOTION FOR CONSOLIDATION The Court therefore ORDERS that the cases be consolidated to avoid unnecessary cost or delay and promote the administration of justice. As the first−filed case, the Court designates 5:16−CV−855−OLG as the lead case and directs the parties to make any subsequent filings in the lead case. Signed by Judge David A. Ezra. (rg) (Entered: 03/31/2017)

Case: 5:17-cv-54 As of: 03/17/2020 06:23 PM CDT 2 of 2

03/27/2017
03/27/2017 05/03/2017 10/25/2017

4 ORDER GRANTING re 3 Joint MOTION to Consolidate Cases filed by Julio Trujillo Santoyo, the Court designates 5:16−CV−855−OLG as the lead case and directs the parties to make any subsequent filings in the lead case. The Court designates 5:16−CV−855−OLG as the lead case and directs the parties to make any subsequent filings in the lead case. Signed by Judge David A. Ezra. Modified on 3/28/2017 (rg). (Entered: 03/27/2017)
Case Directly Reassigned to Chief Judge Orlando L. Garcia. Case Consolidated with SA16CV855−OG. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. (wg) (Entered: 03/28/2017)
6 ***DOCUMENT IS DEFICIENT − COUNSEL WILL REFILE DOCUMENT IN THE MAIN CASE SA16−CV−855***Defendant's ANSWER to 1 Complaint by United States Of America.(Anderson, Gary) Modified on 5/4/2017, to designate deficiency (rf). (Entered: 05/03/2017)
7 ORDER This case was consolidated with cause number SA−16−CV−855 on March 27, 2017. All documents are being filed under that cause number; thus, this case may be administratively closed. Signed by Chief Judge Orlando L. Garcia. (rg) (Entered: 10/26/2017)

 
 Case 5:17-cv-00054-OLG Document 1 Filed 01/26/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Julio Trujillo Santoyo, Plaintiff,
v. United States of America,
Defendant.

§ § § § § CIVIL ACTION NO. 5:17-CV-54 § § § § §

PLAINTIFF’S ORIGINAL COMPLAINT

The Plaintiff, Julio Trujillo Santoyo, through counsel, respectfully brings this action under

the Federal Tort Claims Act (FTCA) seeking damages against the Defendant for false

imprisonment. As a result of the Defendant’s actions, the Plaintiff was unlawfully detained in the

Bexar County Adult Detention Center (BCADC) from March 24, 2016 until June 8, 2016 without

his consent, without notice of any charges, without a warrant, notice to appear in removal

proceedings, or order of removal, and in violation of law. In furtherance of his claim the Plaintiff

alleges as follows:

INTRODUCTION

1. The Plaintiff was unlawfully detained in the BCADC in San Antonio, Texas for 76 days

after his State criminal charges were dismissed because officers of the Immigration and Customs

Enforcement (ICE), who are employees of the Defendant and law enforcement officials as defined

by 28 U.S.C. § 2680(h), acted in excess of their statutory authority. In violation of the Fourth and

Fifth Amendments, and in violation of Texas tort law pertaining to false imprisonment, the

Defendant’s ICE officers issued a detainer on January 20, 2016 which caused Bexar County to

unlawfully detain the Plaintiff after his charges were dismissed. Exh. A, Immigration Detainer.

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2. ICE’s authority to issue detainers without a warrant is limited by statute. 8 U.S.C. § 1357(d); 8 U.S.C. § 1226; and 8 U.S.C. § 1357(a). However, ICE regularly exceeds its statutory authority by issuing detainers without a warrant, without a notice to appear in removal proceedings, without a final order of removal, and without providing the affected individual notice about the immigration detainer. ICE’s detainer practice exceeds the authority granted to it under the Immigration and Nationality Act (INA). 3. Immigration detainers violate the Fourth Amendment because they result in an arrest and detention without a warrant. The detainers violate the due process clause of the Fifth and Fourteenth Amendments inasmuch as the affected individual is provided no notice about a pending charge and is not afforded a hearing or any process by which to challenge the detainer before any judicial or administrative authority. 4. Bexar County has no authority to arrest individuals for violations of the federal immigration laws. Nevertheless, Bexar County maintains a policy, practice, and custom of detaining individuals in the BCADC whenever ICE issues them a detainer request. Pursuant to this policy, practice, and custom, Bexar County detains individuals suspected of violating federal immigration law even when it lacks the authority to do so. ICE is aware of Bexar County’s unlawful policy and colludes with Bexar County to detain individuals pursuant to ICE detainer requests even when the person’s State criminal charges have been dismissed or when the affected individual has posted a bond. 5. The Plaintiff has filed a separate action against Bexar County as a result of the unlawful detention which he suffered, an action that also includes multiple claims for relief against certain officers of the Department of Homeland Security and ICE. See Plaintiff’s First Amended Complaint, Trujillo v. Bexar County, No. 5:16-CV-855 OLG (W.D.T.X. Oct. 20, 2016), ECF Doc.
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11. 5. ICE’s immigration detainer was the direct and proximate cause for the Plaintiff to be wrongfully detained in the BCADC for approximately 76 days after his criminal charges were dismissed. Employees of the Defendant incorrectly alleged in their detainer that they had a final order of removal against the Plaintiff, and this resulted in Plaintiff’s unlawful detention. In fact, no such final removal order existed. Furthermore, employees of the Defendant left the Plaintiff to languish in the BCADC for approximately 76 days without a warrant for arrest, without notice of any charges against him (there were none), without any opportunity to be considered for release on bond, and without any other legal process of any kind. In so doing, the Defendant caused the Plaintiff to be unlawfully detained for around 76 days. 6. The Plaintiff now brings this FTCA action to seek monetary damages against the Defendant, whose employees, as a result of their wrongful acts or omissions, would be liable under Texas law for committing the tort of false imprisonment against the Plaintiff. The FTCA provides this Court with jurisdiction to award monetary damages to redress an injury “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see also 28 U.S.C. § 2674. The FTCA expressly includes an action seeking damages for false imprisonment caused by “acts or omissions of investigative or law enforcement officers of the United States Government.” 28 U.S.C. § 2680(h). This includes “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” Id. 7. The tort of false imprisonment, as defined by Texas law, includes three elements: (1)
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willful detention; (2) without consent; and (3) without authority of law. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Sears, Roebuck Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985). The Defendant caused the Plaintiff to be falsely imprisoned by unlawfully issuing a detainer against the Plaintiff and leaving him to languish in the BCADC for around 76 days. ICE knew or should have known that, as a direct and proximate result of the issuance and maintenance of an immigration detainer, the Plaintiff would remain detained in the BCADC. By so issuing the detainer, the Defendant willfully caused the Plaintiff to be detained without his consent and without any authority of law. Accordingly, this Court should award monetary damages to redress the Defendant’s unlawful actions.
JURISDICTION 8. This action arises under the FTCA. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1346(b)(1); 2674; 2680(h). 9. Venue is proper in this district because the Plaintiff resides in Bexar County and all of the underlying events occurred in this district. 28 U.S.C. § 1391(b).
PARTIES 10. The Plaintiff is an adult who currently resides in Bexar County, Texas. He was unlawfully detained as a result of acts or omissions by Defendant in the BCADC for approximately 76 days after his State charges for misdemeanor assault were dismissed. 11. The Defendant United States of America is being sued pursuant to the FTCA for the acts or omission of its ICE employees who, while acting within the scope of their employment, willfully caused the Plaintiff to be detained without his consent and without any authority of law and thereby caused injury to the Plaintiff. These employees include Enrique Lucero, the former Field Office Director of the San Antonio Field Office for the ICE Office of Detention and Removal Operations.
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He was the Field Office Director during the time period when the Plaintiff was illegally detained. Lucero was responsible for formulating and implementing policies applicable to the ICE San Antonio Field Office concerning the detention of prisoners. In this regard, Lucero was responsible for ensuring that these policies did not result in the unconstitutional detention of inmates at the BCADC as the result of a detainer request issued by ICE. Lucero was also responsible for ensuring that inmates detained at the BCADC as a result of ICE’s detainer requests and policies were detained pursuant to and in accordance with federal regulations. Furthermore, Lucero was responsible for training and supervising his staff to ensure that those inmates held at ICE’s request in the Bexar County Jail are detained pursuant to and in accordance with federal law and that their detention does not violate the Constitution. In this case, Lucero’s acts or omission caused the Plaintiff’s unlawful detention. The aforementioned employees also include Leonard Davis, the ICE officer who issued the immigration detainer against the Plaintiff which led to his unlawful detention. Lucero and Davis are both law enforcement officers of the Defendant as defined by 28 U.S.C. § 2680(h) and both were acting within the scope of their employment at all times relevant to this complaint.
FACTS A. Immigration detainer requests generally. 12. ICE issues detainer requests to State and local law enforcement agencies (LEAs) when they desire to investigate whether an individual in the custody of an LEA violated federal immigration law. The detainer requests LEAs to detain individuals after their charges are dismissed, they posted a bond, or served their sentence to permit ICE time to assume custody. 13. ICE detainer requests carry no lawful mandate and the LEA who receives such a request is under no lawful obligation to abide by it. See Galarza v. Szalczyk, 745 F.3d 634, 640-45 (3d Cir.
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2014) and 8 C.F.R. § 287.7 (“The detainer is a request that such agency advise the Department, prior to the release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.”). In fact, the Tenth Amendment prevents federal immigration officials from ordering state or local officials to imprison suspected immigration violators “at the request of the federal government.” Galarza, 745 F.3d at 643. 14. When an LEA continues to detain a person after their charges are dismissed, they posted bond, or they served their sentence, the LEA has re-arrested the individual without a warrant. 15. ICE detainer requests are issued to LEAs on forms I-247, I-247N, I-247D, and Form I-247X. These forms are not warrants, enforceable orders, and are in no way binding upon the local LEA that receives it. Nor do immigration detainers require probable cause that the detainee committed a crime. In fact, immigration detainers are routinely used to detain individuals based upon suspected civil violations of the immigration laws. 16. ICE does not provide an administrative procedure for challenging the issuance of a detainer. Nor do many LEAs, including Bexar County, provide any process by which the affected individual can challenge the ICE detainer. 17. Immigration detainers are not subject to review by a neutral judge or magistrate, nor are they subject to the same procedural and substantive due process requirements and safeguards to which ordinary criminal detainers are subject. 18. The statutory authority for such detainers is located in 8 U.S.C. § 1357(d). Although the plain language of § 1357(d) plainly limits the use of detainers to individuals detained “for violation of any law relating to controlled substances,” ICE routinely issues detainers against individuals who are detained for offenses other than controlled substances violations.
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19. Congress provided that ICE must obtain “a warrant issued by the Attorney General” to arrest an individual “pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226(a). ICE can only effectuate warrantless arrests for a violation of the immigration law when the officer has reason to believe that the individual “is likely to escape before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357(a)(2). In violation of § 1357(a)(2), ICE routinely issues detainers—which are not warrants—that result in an individual’s arrest by an LEA without conducting an individualized determination about whether the person is likely to escape. See, e.g., Moreno v. Napolitano, No. 11-C-5452, 2016 U.S.Dist.LEXIS 136449 (N.D. Ill. Sep. 30, 2016) (interpreting § 1357(a)(2) to require an individualized determination that the detainee “is likely to escape” before a warrantless arrest pursuant to an ICE detainer can be effectuated). 20. Bexar County and ICE routinely collude to detain individuals without a warrant whenever ICE issues a detainer request. 21. In a sworn statement provided to this Court in a separate action, the Defendant Bexar County admitted that they have a policy, practice, and custom of detaining individuals pursuant to ICE detainer requests. Exh. C, Affidavit of Janette Torres at ¶¶ 5-7. Thus, it is the actual policy, practice, and custom of Bexar County to hold detainees with immigration detainers in the BCADC awaiting pick-up by the federal immigration authorities, even when such people have had bond posted on their behalf, have paid their fines, have no additional charges pending against them, and are not subject to any judicial order requiring or authorizing their continued detention. 22. On March 23, 2016, former Bexar County Sheriff Susan Pamerleau testified before the Texas State Senate on border security that there were 90 people detained in the BCADC with ICE detainer requests, which demonstrates the high number of individuals affected by ICE detainer
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practice

in

Bexar

County.

Video

testimony

available

at

http://tlcsenate.granicus.com/MediaPlayer.php?view_id=40&clip_id=10949. Indeed, Sheriff

Pamerleau represented to Texas State Senator Brian Birdwell that Bexar County complies with all

immigration detainer requests. See Exh. B. Bexar County detains such individuals regardless if

there is a properly authorized warrant allowing them to do so.

23. Based on information and belief, the Defendant at all times relevant to this action was

colluding with Bexar County and was aware of the aforementioned policy, practice, and custom

of detaining individuals pursuant to ICE detainer requests.

B. The Plaintiff unlawful detention in the BCADC from March 24, 2016 until June 8, 2016.

24. On or around January 20, 2016, Plaintiff was arrested for misdemeanor assault and detained

at the BCADC.

25. On January 20, 2016, in a custodial setting at the BCADC, and without access to counsel,

Leonard Davis, an ICE agent and employee and law enforcement officer of the Defendant,

interrogated the Plaintiff about his immigration status. Davis failed to Mirandize the Plaintiff

before his custodial interrogation. Subsequent to the custodial investigation, Davis filed an

immigration detainer with Bexar County requesting that the Plaintiff remain in the BCADC

beyond the time when he would otherwise be released to allow ICE an opportunity to assume his

custody. See Exh. A, Immigration Detainer.

26. In the detainer request, Davis inaccurately represented that probable cause existed that the

Plaintiff was a removable alien based on a final order of removal. On January, 20, 2016, the day

when the detainer was issued, ICE had no final order of removal which they could legally execute

against the Plaintiff. They did not procure an order of removal until June 8, 2016. See Exh. D

Removal Order. Thus, Davis’ basis for “probable cause” was incorrect as a matter of law and the

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Plaintiff was provided no legal channel by which to challenge it. 27. At no time while Plaintiff was in custody at the BCADC did ICE seek a warrant of arrest for federal immigration violations. 28. On or around March 24, 2016, Plaintiff’s misdemeanor assault charge was dismissed. See Exh. E, Order of dismissal. 29. The Plaintiff remained in unlawful detention at the BCADC after his charges were dismissed pursuant to the ICE detainer request. The Plaintiff remained in BCADC without a warrant for arrest, order from a Court, order of removal, or other legal basis until June 8, 2016. He was in custody at BCADC for approximately 76 days after his criminal charges were dismissed pursuant to the ICE detainer. He was at no time presented before a magistrate or other authority for a hearing. Nor was he provided bail or the opportunity to seek a bond. At no time prior to June 8, 2016 did ICE take any action to release the Plaintiff from his unlawful detention. 30. ICE’s immigration detainer request was the direct and proximate cause for Plaintiff to be unlawfully detained for approximately 76 days in the BCADC. 31. During his unlawful detention, the Plaintiff submitted multiple inquiries with Bexar County seeking to understand why he was detained after the Bexar County Court dismissed the misdemeanor criminal case against him. Bexar County informed the Plaintiff that he was being detained pursuant to a detainer request from immigration officials. Exh. F, Affidavit of Julio Trujillo Santoyo. 32. On April 29, 2016—over one month after his criminal charges were dismissed—the Plaintiff wrote to the Bexar County Sergeant’s Office:
“What’s my release date? And do I have bond or what? My case has already been dismissed. Let me know something.”
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To which the response was: “Hold for ICE.”
See Exh. G, Correspondence with Bexar County; Exh. F at ¶ 6. 33. Plaintiff’s girlfriend also inquired on multiple occasions about why Plaintiff remained in custody after his misdemeanor assault charge was dismissed. Exh. F at ¶ 10. Bexar County repeatedly informed her that the Plaintiff was detained pursuant to a request from federal immigration officials. Id. at ¶¶ 4-8. 34. Plaintiff’s girlfriend then called ICE who informed her that the Plaintiff was not on their list to be picked up. 35. During Plaintiff’s custody at the BCADC he was never served with a warrant for his arrest for federal immigration violations, a notice to appear before an immigration judge, or a final order of removal. Id. at ¶ 8. He also was not served with the ICE detainer request in violation of ICE policy. Id. He was not provided a bond, judicial review, or provided any due process of law. 36. On June 6, 2016, Plaintiff, still being unlawfully detained without a warrant or pending charges, was forced to hire counsel and pay attorney fees for an attorney to seek his release from unlawful detention in the BCADC. Id. at ¶ 11. 37. On June 8, 2016, the Plaintiff was released from BCADC and taken into ICE custody. See Exh. H, Letter from the Bexar County Sheriff’s Office confirming the dates of Plaintiff’s detention in the Bexar County Jail. 38. Issuance and maintenance of the immigration detainer by the Defendant’s ICE officers was the direct and proximate cause of the Plaintiff’s detention in the BCADC against his will, without his consent, and with absolutely no legal authority, from March 24, 2016 (the date when his State criminal charges were dismissed) to June 8, 2016 (the date when ICE assumed his custody).
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39. On June 8, 2016, ICE agents assumed custody of the Plaintiff and read him his Miranda rights. 40. From March 24, 2016 until June 8, 2016, while under arrest and detained at the BCADC, the Plaintiff was not charged with any offense under federal immigration laws. He was held without a warrant for his arrest. He did not receive prompt independent review of whether there was probable cause to detain him. He was not provided notice about any pending charges. He had no opportunity to appear before a judge to seek his release, to learn why he was deprived of his liberty, or post a bond.
C. The Plaintiff administrative complaint with ICE. 41. On August 29, 2016, the Plaintiff submitted an administrative complaint to ICE requesting the agency to pay damages caused by the Plaintiff’s unlawful detention. See Exh. I. The complaint alleged that ICE is liable under the FTCA for falsely imprisoning the Plaintiff pursuant to the detainer request issued by the ICE San Antonio Field Office. See id. The Plaintiff requested damages in the amount of one million dollars. See id. 42. On January 11, 2017, ICE mailed a letter to the Plaintiff’s counsel denying the Plaintiff’s administrative complaint and denying any liability under the FTCA. See Exh. J. 43. The Plaintiff has exhausted all administrative remedies as required by law. See 28 U.S.C. § 2675(a).
CLAIM FOR RELIEF 44. The foregoing allegations, numbered 1-43, are incorporated by reference. 45. As a result of the wrongful acts or omission of law enforcement officers and employees of the Defendant who were acting within the scope of their employment, the Plaintiff was deprived of his liberty and willfully detained for approximately 76 days.
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46. The Plaintiff did not consent to this detention. 47. The Plaintiff’s detention was without lawful authority. 48. Accordingly, if the Defendant were a private actor, it would liable under Texas law for the tort of false imprisonment under the law of Texas, the State where the aforementioned acts or omission occurred. See Wal-Mart Stores, Inc., 92 S.W.3d at 506 (Tex. 2002); Sears, Roebuck Co., 693 S.W.2d at 375. 49. The Defendant’s false imprisonment of the Plaintiff is a direct and proximate cause of the Plaintiff’s injuries sustained as a result of his unlawful detention. 50. The Defendant is therefore liable for damages caused to the Plaintiff pursuant to the Federal Tort Claims Act. See 28 U.S.C. §§ 1346(b)(1); 2674; 2680(h). 51. The Plaintiff is entitled to compensatory damages of one million dollars, court costs, and any other relief this Court deems just and proper.
CONCLUSION For the foregoing reasons, the Plaintiff respectfully requests the Court enter the following orders: a) Enter judgment in favor of the Plaintiff against the Defendant for compensatory
damages in the amount of one million dollars; b) Order the Defendant to pay all court costs incurred in bringing this action; and c) Grant the Plaintiff any and all additional relief to which he may appear to be
entitled. Respectfully submitted, /s/ Juan Carlos Rodríguez Juan Carlos Rodríguez State Bar No. 24033007 juancarlos@dmcausa.com
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Lance E. Curtright State Bar No. 24032109 lance@dmcausa.com

DE MOTT, McCHESNEY, CURTRIGHT,

ARMENDARIZ, LLP

800 Dolorosa, Ste. 100

San Antonio, Texas 78207

Phone:

(210)354-1844

FAX:

(210)212-2116

Attorneys for Plaintiff

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 Case 5:16-cv-00855-OLG Document 36 Filed 06/05/17 Page 1 of 19

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
JULIO TRUJILLO SANTOYO,
Plaintiff;

FILED

JUN 0 52017

CLERK, U.S.' DISTRICT COURT

WESTERN DIST

T XAS

DEP CLERK

V.

Civil No. 5:16-CV-855-OLG

UNITED STATES OF AMERICA et al.,

Defendants.

i) 1P)

This case is before the Court on Defendant Bexar County's Motion to Dismiss the First

Amended Complaint (docket no. 13) and Plaintiff's Motion for Partial Summary Judgment

(docket no. 22). The Court finds that Defendant's Motion to Dismiss should be GRANTED IN

PART and DENIED IN PART, and Plaintiff's Motion for Partial Summary Judgment should be

GRANTED IN PART and DENIED IN PART.

Background

Plaintiff's Complaint asserts claims under 42 U.S.C. § 1983 for violations of the Fourth, Fifth, and Fourteenth Amendments; claims for declaratory relief under 28 U.S.C. § 2201 and 2202; claims for violations of the Immigration and Nationality Act (1NA), 8 U.S.C. § 1226(a) and 1 357(a)(2) and (d); and Bivens claims arising from Plaintiff's alleged unlawful detention at

the Bexar County Adult Detention Center (BCADC) from March 24, 2016, to June 7, 2016.

Docket no. 11 at 1 & ¶J 54-86. Plaintiff asserts claims against the Department of Homeland
Security (DHS), Immigration and Customs Enforcement (ICE), several unknown ICE agents,

and Bexar County.

Plaintiff was arrested on January 20, 2016, for misdemeanor assault and placed into

custody at BCADC. Id. at ¶ 38. At some point during Plaintiff's detention, Defendant ICE agent 1 of 19

Case 5:16-cv-00855-OLG Document 36 Filed 06/05/17 Page 2 of 19
Leonard Davis conducted an immigration interview with Plaintiff, concluded that he was a
foreign born national, and lodged an immigration detainer with Bexar County. Id at ¶ 39. On
March 24, 2016, the assault charge was dismissed, but Plaintiff was not released. Id. at ¶ 42. Plaintiff alleges he and his girlfriend inquired, including at least one inquiry in writing, about the reason for his continued detention, and was told that he was being held pursuant to the immigration detainer. Id. at ¶J 44-46. However, Plaintiff alleges, his girlfriend also contacted ICE directly and was informed that Plaintiff was not on their list to be picked up. Id. at ¶ 47. Finally, Plaintiff alleges, on June 7, 2016, he was released from the Bexar County Jail into ICE custody. Id. at ¶J 34-3 7.
Although Plaintiff contends that the allegedly unlawful detention resulted from an ICE detainer, Plaintiff's Amended Complaint also incorporates a claim drawn from an affidavit submitted with Defendant's initial Motion to Dismiss, that Plaintiff's detention was prolonged because BCADC did not receive judicial authorization to release him until June 7, 2016. Id. at ¶ 50 (citing docket no. 4-1 at ¶ 8). Plaintiff's Amended Complaint thus asserts two Section 1983 claims against Bexar County. The first asserts that Bexar County's practice of honoring ICE detainer requests caused Plaintiff's injuries and violated the Fourth, Fifth, and Fourteenth Amendments. Docket no. 11 at ¶J 54-60. The second asserts that Bexar County's policy of detaining individuals in BCADC until receipt ofjudicial authorization via "facsimile and/or email" (the "judicial authorization policy") was the cause of Plaintiff's injuries and violated the Fourth, Fifth, and Fourteenth Amendments. Id. at ¶J 6 1-70. Plaintiff's Amended Complaint also alleges that the ICE detainer issued against him exceeded the statutory authorization for ICE detainers because it was not supported by an individualized determination that he was "likely to escape" and was not convicted of a crime relating to a controlled substance, which Plaintiff contends violated 8 U.S.C. § 1226(a) and 1357(a)(2) and (d). Id. at ¶J 71-76. Plaintiff's
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Amended Complaint also seeks a declaration pursuant to 28 U.S.C. § 2201 and 2202 that ICE detainers violate the Fourth and Fifth Amendments. Id. at ¶J 77-81. Finally, Plaintiff's Amended Complaint asserts Bivens claims against Defendants Lucero and Davis, who are, respectively, the Director of the San Antonio ICE field office and the ICE officer who issued the detainer request against Plaintiff. Plaintiff alleges that Defendant Davis inaccurately represented to Defendant
Bexar County that ICE had a final order for removal of Plaintiff at the time that the January 20, 2016 detainer request was issued. Id. at ¶IJ 39-40, 85. Plaintiff alleges that Defendant Lucero is responsible for implementing "policies, customs and practices, including. . . deliberately
indifferent failure to establish adequate procedures, supervision and training {which] caused the
Plaintiff's injuries and the violations of the Fourth and Fifth Amendments." Id. at ¶fJ 82-83.
Defendant Bexar County has moved to dismiss the claims against it pursuant to Fed. R. Civ. P. 1 2(b)(6), or, alternatively, for summary judgment pursuant to Fed. R. Civ. P. 56. Docket no. 13 at ¶IJ 1, 3. Plaintiff has moved for partial summaryjudgment against Defendant Bexar County as to its Section 1983 claims. Docket no. 22.
Legal Standards and Analysis Rule 8(a) of the Federal Rules of Civil Procedure requires that a complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief[,]" and Rule 1 2(b)(6) provides that a complaint may be dismissed if it "fails to state a claim upon which relief
can be granted[.]" Courts apply these rules through the two-pronged process outlined by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). First, the Court must identify the complaint's factual allegations, which are
assumed to be true, and distinguish them from any statements of legal conclusion, which are not entitled to the assumption of truth. Iqbal, 556 U.S. at 678, 680-8 1. Second, the Court must assess whether the assumed-as-true factual allegations set forth a plausible claim to relief. This is "a
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context-specific task that requires the reviewing court to draw on its judicial experience and common sense" to determine whether "the well-pleaded facts. . . permit the court to infer more than the mere possibility of misconduct[.]" Iqbal, 556 U.S. at 679. Ultimately, the claim is
subject to dismissal if it lacks "factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. When considering a motion to dismiss, courts are "limited to the complaint, any
documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint" and may also consider "matters of which a court may take judicial notice[,]" including pleadings and court proceedings in state court that are public record. Lone Star Fund V (US.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); Funky. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011); 330 Cedron Trust v. Citimortgage, Inc., No. SA-14-CV-933-XR, 2015 WL 1566058, at *2 (W.D. Tex. Apr. 8, 2015). If the Court considers other materials, it must treat the motion as one for summary judgment under Fed. R. Civ. P. 56, and must afford the parties a reasonable opportunity to present all material pertinent to the motion. Fed. R. Civ. P. 12(d).
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). The movant bears the burden of "demonstrat[ing] the absence of a genuine issue of material fact," and once the movant has met this burden, the nonmovant must "go beyond the pleadings" and designate specific facts, supported by summary judgment evidence, showing that there is a genuine need for trial. Monell v. Dep 't ofSoc. Services ofCily ofNew York, 436 U.S. 658, 694 (1978); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).
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In the context of a claim under 42 U.S.C. § 1983, "a municipality cannot be held vicariously liable for the constitutional torts of its employees or agents"; rather, "[a] municipality is liable only for acts directly attributable to it through some official action or imprimatur." Valle v. City ofHouston, 613 F.3d 536, 541 (5th cir. 2010). Thus, to establish municipal liability under Section 1983, a plaintiff must plead and prove three elements: "(1) an official policy (or custom), of which (2) a policymaker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose 'moving force' is that policy or custom." Valle, 613 F.3d at 54142 (quoting Pineda v. City ofHouston, 291 F.3d 325, 328 (5th Cir. 2002)).
In its motion to dismiss, Defendant Bexar County argues that Plaintiff has failed to adequately plead the existence of a Bexar County custom or policy that caused the alleged deprivation of Plaintiff's constitutional rights. Docket no. 13 at ¶ 4. Defendant also argues that Plaintiff's claims regarding the sufficiency of the detainer should be dismissed because the record shows that probable cause existed to believe that Plaintiff had committed a federal
crimeillegal reentry into the United States after removal. Id at ¶ 8. Defendant also argues that Plaintiff's Amended Complaint fails to establish that its policy of honoring ICE detainers by
detaining inmates for up to 48 hours was the "moving force" behind Plaintiff's challenged 75 day detention. Id. at ¶ 9. Finally, Defendant argues that its judicial authorization policy is constitutional and was not the moving force behind Plaintiff's alleged constitutional deprivations. Id. at ¶J 11-13. Defendant's motion is submitted pursuant to Fed. R. Civ. P. 12(b)(6), but also seeks as an alternative summary judgment pursuant to Fed. R. Civ. P. 56. Id. at ¶111,3.
In response, Plaintiff argues that his Amended Complaint sufficiently pleads his Section
1983 claims. Plaintiff contends that he has satisfied the first two elements of a sufficient Section
1983 pleading because "he identified, and the Defendant concedes, two detention policies about 5 of 19

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which the Defendant's policymakers are aware." Docket no. 15 at 6. Plaintiff further contends that he has made a sufficient pleading that the judicial authorization policy was the moving force behind his allegedly unlawful detention because Defendant has not disputed his claim that "they continued to hold him in custody until after his charges were dismissed until. . . they received a facsimile or e-mail from the court." Id. at 7. Plaintiff also argues that dismissal of his Section 1983 claims at this stage would be inappropriate because a fact question exists regarding whether his allegedly unlawful 76-day detention was the result of the ICE detainer or the judicial authorization policy. Id, at 15, 17.
In his motion seeking partial summary judgment, Plaintiff contends that Defendant Bexar County has conceded that its continued detention of Plaintiff after the entry of the order
dismissing the assault charge against him was "pursuant to two policies"both the practice of
honoring ICE detainer requests and the judicial authorization policy. Docket no. 22 at 3, 5
(arguing that "[un the course of these proceedings, the Defendants conceded the existence of
policies that were the moving force behind [Plaintiff's] unlawful imprisonment."). In his motion, Plaintiff identifies the pertinent policymaker as the Bexar County Sheriff and argues that
evidence not in dispute shows the Sheriff's knowledge of both the ICE detainer policy and the judicial authorization policy. Id. at 7-8. Plaintiff then argues that both policies were the moving
forces behind his allegedly unlawful 76-day detention. Id. at 9-15. In its Response, Defendant Bexar County argues that Plaintiff is not entitled to summary
judgment because he has not shown that either of the challenged policies are facially
unconstitutional or "promulgated with deliberate indifference to the known or obvious consequences that constitutional violations would result." Docket no. 23 at ¶ 4 (citing Piotrowski v. Cily ofHouston, 237 F.3d 567, 579 (5th Cir. 2001)). Defendant further argues that Plaintiff has failed to show that the alleged deprivation of his rights was pursuant to the challenged policies
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because he has shown the existence of "persistent, widespread practices that could constitute policies for purposes of § 1983 actions" or that any such policy was adopted or continued "in deliberate indifference to the constitutional rights" of the County's residents. Id. at ¶ 5 (citing Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995)). Defendant also disputes the sufficiency of Plaintiff's showing of actual or constructive knowledge, arguing that the knowledge of certain Bexar County officialssuch as an Assistant District Attorney or the
Bexar County Clerkthat the charges against Plaintiff had been dismissed as of March 24, 2016,
cannot fairly be imputed to the County. Id. at ¶ 7. The parties' filings effectively amount to cross-motions for summary judgment on
Plaintiff's Section 1983 claims against Defendant Bexar County. The Court accordingly analyzes
them together, and considers each required element of a sufficient Section 1983 pleading in turn. First, the Court considers whether a genuine question of fact exists regarding the existence of an official policy or custom. Defendant does not dispute that it maintains a policy of holding BCADC detainees until receipt of written judicial authorization for their release. With respect to the County's practice of honoring ICE detainer requests, Defendant relies upon Campbell v. City ofSan Antonio, 43 F.3d 973, 977 (5th Cir. 1995), and argues that Plaintiff has failed to state the existence of a policy because he has failed to show the impact of any purported policy on anyone other than himself. Docket nos. 13 at ¶ 9; 23 at ¶ 5. However, establishing the existence of a custom by producing evidence of its application to other individuals is only one way of
satisfying the first element to show municipal Section 1983 liability. See, e.g., Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) ("practices of officials may become 'so permanent and
well settled as to constitute a 'custom or usage' with the force of law." (quoting Monell v. Dep 't
ofSoc. Services of City of New York, 436 U.S. 658, 691 (1978))). A more straightforward method to satisfy this element is to establish that "the action that is alleged to be unconstitutional
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implements or executes a policy statement, ordinance, regulation, or decision officially adopted
and promulgated" by the policymaker." Monell, 436 U.S. at 690. The existence of a "policy" can also be established by evidence of "formal rules and understandings" or "fixed plans of action to
be followed under similar circumstances consistently and over time." Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir. 1993) (citing Pembaur v. City ofCincinnati, 475 U.s.
469, 478 (1986)). Moreover, the first requirement of municipal Section 1983 liability can even be satisfied by a single action of a municipal official who possesses policymaking authority regarding the action in question, such as a county Sheriff Brady v. Fort Bend County, 145 F.3d
691, 698 (5th Cir. 1998); Turner v. Upton County, 915 F.2d 133, 136 (5th Cir. 1990) (in Texas, a sheriff wields final policymaking authority in the county regarding law enforcement). In this case, Plaintiff has presented evidence that, as of April 2016, under former Bexar County Sheriff Susan Pamerleau, the County "complied with all [ICE detainerj requests{,]" except in situations where inmates subject to a detainer request were transferred to other facilities or jurisdictions, or where the 48-hour detainer period expired before federal authorities picked up the detainee. Docket no. 22-1. Sheriff Pamerleau also described the County's practices for handling ICE detainer requests in March 23, 2016, testimony before the Texas Senate Subcommittee on Border Security, testimony which is cited by both parties and which is available online at http://ticsenate.granicus.comlMediaPlayer.php?viewid=40&clipid=1 0949. Defendant
acknowledges the County's practice of honoring ICE detainer requests, a practice premised,
according to Defendant, on the "assumption that all individuals on ICE detainers are individuals that have committed a felony offense or multiple misdemeanor offenses." Docket no. 17 at ¶ 6 & n.9 (citing Sheriff Pamerleau's testimony at 3:05:42). This evidence is sufficient to establish the
existence of a Bexar County policy of honoring ICE detainer requests, and to satisfy the first element of municipal Section 1983 liability. No evidence in the record creates any fact issue
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regarding the County's practice of honoring ICE detainer requests, and of assuming that such requests are based on the subject's commission of a felony or multiple misdemeanors.
This evidence also satisfies the second element of municipal Section 1983 liability,
showing that the Bexar County Sheriffthe official policymaker for purposes of law enforcement, Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996)had actual knowledge of the
County's practice of honoring ICE detainer requests. The parties' arguments regarding whether knowledge that Plaintiff was detained for more than 48 hours after entry of the order dismissing the charges against him can be imputed to the County are misplaced. The second element of
municipal Section 1983 liability is whether the municipal entity can be charged with knowledge of the custom or practice at issue, not the constitutional deprivation alleged to result from it.
Valle, 613 F.3d at 542. Defendant does not dispute the County's knowledge of the judicial
authorization policy, and has produced no evidence that creates any fact issue regarding whether the Sheriff had knowledge regarding the ICE detainer request compliance policy.
The final element of municipal Section 1983 liability is whether the evidence shows that
the challenged policy was the "moving force" behind the alleged constitutional deprivation. The
Court considers this inquiry first with respect to the County's policy of honoring ICE detainer requests. Plaintiff alleges that the entirety of his 76-day detention that followed the dismissal of the criminal charge resulted from the County's compliance with the ICE detainer request. He has produced evidence showing that, when he asked jail officials why he was being detained after the charge against him had been dismissed, he was informed that it was because ofthe ICE detainer
request. Docket no. 22-1 at 4-5; 19, 23-24. However, evidence not in dispute shows that such a prolonged detention based on an ICE detainer request would be contrary to both the County's practice regarding ICE detainer requests and the detainer request itself. Docket no. 22-1 at 8 (Sheriff Pamerleau statement, quoting news article, that inmates would be released, and the
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detainer request "declined," if "federal authorities failed to pick [the detainee] up within 48 hours"), 11 (ICE detainer request for Plaintiff, requesting that the County "[s]erve a copy of this form on the subject and maintain custody of him/her for a period NOT TO EXCEED 48
HOURS"); see also 8 C.F.R. § 287.7(d) (authorizing detention pursuant to detainer requests "for a period not to exceed 48 hours"). Accordingly, Plaintiff's evidence shows that the County's
practice of honoring ICE detainer requests was not the "moving force" behind his allegedly unconstitutional detention, because ifjail officials did in fact detain him for more than 48 hours
based on the ICE detainer request, they did so in violation of, rather than pursuant to, County practice. To the extent that Plaintiff alleges that the County's policy or practice was to detain
individuals beyond 48 hours, or indefinitely, upon receipt of an ICE detainer request, summary
judgment in Defendant's favor is appropriate because Plaintiff has not presented evidence that any such policy was ever adopted by a policymaking authority, that any such practice was carried out with respect to any individual other than Plaintiff himself, or that any policymaker was involved in the post-dismissal detention of Plaintiff for more than 48 hours based on receipt of the ICE detainer request.
Plaintiff also contends that the County's compliance with ICE detainer requests, even for periods of 48 hours or less, is unconstitutional. Docket nos. 15 at 14; 22 at 14. Plaintiff argues that Bexar County's practice is to honor ICE detainer requests without making any independent assessment of whether the prolonged detention is supported by probable cause that a crime has been committed, or whether the detainer otherwise complies with the iNA's statutory guidelines. Plaintiff argues that this practice establishes the County's liability for violating his rights to due process and to be secure from unreasonable seizure. Docket nos. 15 at 10-13; 22 at 11-14. Plaintiff further argues that the specific detainer request of which he was a subject was unsupported by probable cause that he had committed an offense within the enforcement power
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of state officials, as opposed to the federal offense of illegal reentry into the United States after removal. Docket no. 15 at 13-14. Plaintiff therefore contends that any period of post-dismissal detention based upon the ICE detainer request was therefore a violation of his Fourth, Fifth, and Fourteenth Amendment rights, for which the County is liable.
As discussed above, evidence not in dispute establishes that Bexar County maintains a
policy of honoring ICE detainer requests, and assumes that any subject of an ICE detainer
request has been determined by ICE to have committed a felony or multiple misdemeanors. Docket no. 17 at ¶ 6. Plaintiff is correct that detention pursuant to an ICE detainer request is a Fourth Amendment seizure that must be supported by probable cause or a warrant. Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 2509 (2012); Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015) ("Because [the detainee] was kept in custody for a new purpose after she
was entitled to release, she was subjected to a new seizure for Fourth Amendment purposes
one that must be supported by a new probable cause justification."); Cervantez v. Whitfield, 776 F.2d 556, 560 (5th Cir. 1985) (reciting stipulation). Furthermore, the Supreme Court has recently observed that "[a]s a general rule, it is not a crime for a removable alien to remain present in the
United States" and that "[i]f the police stop someone based on nothing more than possible
removability, the usual predicate for an arrest is absent." Arizona v. United States, 567 U.S. 387, 132 S.Ct. 2492, 2505 (2012); see also Santos v. Frederick County Bd ofCorn 'rs, 725 F.3d 451, 464 (4th Cir. 2013) ("the [Supreme] Court has said [in Arizona] that local officers generally lack
authority to arrest individuals suspected of civil immigration violations."); Mercado v. Dallas
County, Texas, 3:15-CV-3481-D, 2016 WL 3166306, at *7 (N.D. Tex. June 7, 2016) (discussing Arizona and Santos).
Defendants contend that the detainer of which Plaintiff was the subject was based not only on Plaintiff's alleged removability, but on his alleged commission of a federal criminal
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offense: unlawful reentry of the United States following removal, in violation of 8 U.S.C. § 1326(a). Docket no. 13 at ¶ 8. However, no evidence in the record indicates that information about Plaintiffs criminal violation of Section 1326(a) was available to County authorities at the
time that they determined to prolong his detention in response to the ICE detainer request.
Accordingly, the record is devoid of evidence showing that County officials' detention of Plaintiff pursuant to the ICE detainer request was supported by any County official's probable cause that he had committed a criminal offense. Defendant's argument that probable cause is established on the basis of the ICE removal order that has been submitted to the Court is
unavailing. The probable cause determination turns on information available to officers at the time of the challenged search or seizure, not information subsequently submitted to the Court. See, e.g., United States v. Woolery, 670 F.2d 513, 515 (5th Cir. 1982) (probable cause is assessed
according to "the facts and circumstances within the knowledge of the arresting officer and of
which he has reasonably trustworthy information"). Notably, the ICE removal order describing
Plaintiffs illegal reentry violation is dated June 8, 201 6the day after Plaintiffs detention at
BCACD ended. Docket no. 22-1 at 21. It is therefore irrelevant to the question of whether County officials had probable cause to detain Plaintiff pursuant to the ICE detainer.
Defendant suggests that County officials were entitled to rely upon ICE's probable cause determination. The Court does not agree. First, as discussed below, ICE's assessment of probable cause was based on a determination that Plaintiff was likely removable, not that he had likely
committed a criminal offense. The Court also notes that, even if the probable cause requirements
between County officials and 8 U.S.C. § 1357(d)(1) were interchangeable, the "collective knowledge doctrine" would not apply in this case because the record does not indicate any communication or cooperation between the ICE personnel who made the probable cause determination and the County officials who processed the detainer request. Indeed, the record
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does not reveal the identity of any individual within ICE to reached the probable cause
determination, the information that formed the basis for that determination, or when it was reached. Compare United States v. Powell, 732 F.3d 361, 369 (5th Cir. 2013) ("The collective
knowledge theory for reasonable suspicion applies so long as there is 'some degree of communication' between the acting officer and the officer who has knowledge of the necessary facts."); United States v. Ibarra, 493 F.3d 526, 531(5th Cir. 2007) (probable cause imputed through collective knowledge theory where "Agent Smith knew all of the facts giving rise to the
probable cause to search the trailer, and there was communication between Agent Smith,
Lieutenant Rawls, and Trooper McGuairt regarding the investigation of this trailer.") The unlawful detention of Plaintiff as a result of the ICE detainer request illustrates the
broader defects in the County's practice. To establish municipal liability, Plaintiff must show that the County's practice is either facially unconstitutional or "promulgated with deliberate indifference to the 'known or obvious consequences' that constitutional violations would result." Piotrowski v. City ofHouston, 237 F.3d 567, 579 (5th Cir. 2001) (quoting Bd. of County Corn 'rs ofBryan County, Ok!. v. Brown, 520 U.S. 397, 405 (1997)). Defendant's policy of honoring ICE detainer requests and of assuming the existence of probable cause based on the existence of a detainer request meets this standard of deliberate indifference. An obvious consequence of Defendant's practice is that individuals who are the subjects of ICE detainers will be detained by County officials who make no assessment, and have no knowledge, regarding whether probable cause exists that those individuals have committed any crime. In her testimony before a subcommittee of the Texas legislature, Sheriff Pamerleau correctly observes that, under DHS 'S Priority Enforcement Program (PEP),' DHS prioritized the removal of individuals convicted of
DHS's PEP guidelines were in effect throughout the duration of Plaintiff's allegedly
unlawful detention. Subsequent to the period relevant to this case, the PEP guidelines were
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certain criminal offenses, a departure from the more permissive standards for issuance of
detainer requests under the previous Secure Communities program. Nonetheless, even under the PEP guidelines, undocumented immigrants may be prioritized for removal even though they are
not suspected or convicted of a criminal offense, such as those "who, in the judgment of an ICE
Field Office Director, USCIS District Director, or USCIS Service Center Director, have
significantly abused the visa or visa waiver programs," or "who have been issued a final order of
42 removal on or after January 1, 201 Memorandum from DHS Secretary Jeh Johnson on
Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014), available at https://www.dhs. gov/sites/default/files/publications/ 14 1120_memo prosecutorial_discretion.pdf. And of course, the PEP guidelines establish DHS enforcement priorities, but do not prohibit the issuance of detainers for non-prioritized undocumented immigrants. See Id. at 5 ("Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein."). And more fundamentally, the fact of a prior conviction does not establish probable cause supporting a new Fourth Amendment seizure, so the designation of an undocumented immigrant as a PEP enforcement priority on that basis cannot be assumed sufficient to satisfy the probable cause requirement for warrantless detention by state or local officials. It is true that the immigration detainer form developed for use with the PEP
programthe DHS Form I-247Dincludes a section in which ICE selects from a series of
rescinded by DHS. See Memorandum from DHS Secretary John Kelly on Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017), available at https ://www.dhs.gov/sites/default/files/publications/1 7 0220_Si_Enforcement-of-the-
Immigration-Laws-to-Serve-the-National-Interest.pdf. The record does not reflect whether Bexar
County's policy of honoring all detainer requests has also been revised. As noted above, "it is not a crime for a removable alien to remain present in the United
States." Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 2505 (2012) (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)).
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boxes to inform County officials of the basis for "probable cause," but crucially, this refers not to
probable cause to believe that a crime has been committed, but to believe that "the subject is a
removable alien."3 The immigration detainer form of which Plaintiff was the subject indicated
that probable cause existed to believe that he was a removable alien based on "a final order of
removal against the subject." Docket no. 22-1. But, as noted above, neither the mere
removability of an individual nor the entry of a final removal order against them equates to a
showing of probable cause that they have committed a crime. Arizona, 132 S. Ct. at 2505;
Orellana v. Nobles County, CV 15-3852 ADMISER, 2017 WL 72397, at *8 (D. Minn. Jan. 6,
2017) (noting that "reason to believe [that a detainee] is an alien subject to removal from the
United States' does not, without more, provide the probable cause needed to make a lawful
arrest. . . . because, '[a]s a general rule, it is not a crime for a removable alien to remain present
in the United States." (quoting Arizona)). In short, the County's assumption that probable cause
must exist to detain any individual for whom it receives an ICE detainer request was
unreasonable. Its routine detention of such individuals made it inevitable that it would engage in
warrantless detention of individuals who were not suspected of any criminal offense, but who
became the subjects of ICE detainer requests either because they fell within a non-criminal PEP
enforcement priority or because a detainer request was lodged despite their non-priority status. In
' This distinction also explains why cases that reconcile federal authorities' warrantless detention authority under 8 U.S.C. § 1357(d) with the Fourth Amendment are not controlling. See, e.g., United States v. Varkonyi, 645 F.2d 453, 458 (5th Cir. Unit A May 1981) ("the phrase 'reason to believe' [in 8 U.S.C. § 1 357(a)(2)] has been equated with the constitutional requirement of probable cause"); Morales v. Chadbourne, 793 F.3d 208, 216 (1st Cir. 2015) (same); United States v. Quintana, 623 F.3d 1237, 1239 (8th Cir. 2010) (same). Those cases have all drawn an equivalence between probable cause and the statutory "reason to believe"
standard governing issuance of detainer requests within the context of claims against federal
agents. In this case, faced with claims against Bexar County, the Court must examine the detention in question was supported by probable cause to believe that a crime had been committed, not by probable cause (or 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[.]" 8 U.S.C. § 1357(d)(1).
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other words, facts not in dispute show that the County's practice was carried out with deliberate
indifference to the constitutional violations that would inevitably flow from it.
Plaintiff's arguments that the detainer request in this case exceeded the statutory authority
for such requests may be relevant to Plaintiff's claims against ICE,4 but they are not relevant to
Plaintiff's claims against the County, and are therefore not addressed here. Plaintiff's claim
against the County turns on the question of whether, as a result of honoring the ICE detainer
request, County officials detained Plaintiff without probable cause. As discussed above,
Plaintiff's Section 1983 claim that is premised on the ICE detainer involves, at most, a 48 hour
span during his 76-day post-dismissal detention. However, no evidence in the record suggests
that the County's detention of Plaintiff during that period was supported by probable cause that
Plaintiff had committed any crime, state or federal.5 The Court therefore concludes that Plaintiff
is entitled to partial summary judgment on this claim.6
The Court now turns to Plaintiff's Section 1983 claim challenging the County's judicial
authorization policy. The Court agrees with Defendant that Plaintiff has failed to show that this
policy is either facially unconstitutional or deliberately indifferent to any certain-to-follow
constitutional deprivation. Piotrowski, 237 F.3d at 579. Moreover, Plaintiff has failed to plead
Nonetheless, the Court notes at this juncture that, contrary to Plaintiff's arguments, 8 U.S.C. § 1357(d), authorizing the "[d]etainer of aliens for violations of controlled substances laws[,]" supplies an alternative basis for use of detainers in cases where "an alien. . . is arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled substances," but does not require that all warrantless ICE detainersparticularly those
with separate statutory bases such as Section 13 57(a)(2)relate to a controlled substance
offense.
It is therefore not necessary for the Court to reach Plaintiff's argument that federal law would preempt state officials from detaining an individual based on probable cause of only a federal crime. Docket no. 22 at 12.
o However, the Court agrees with Defendant that Plaintiff's claims against the County for Fifth Amendment violations cannot proceed because "the Fifth Amendment applies only to the actions of the federal government." Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996).
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more than an isolated violation of a constitutionally protected interest: He has not pleaded or submitted evidence showing that the County's policy was the moving force behind the failure to transmit judicial authorization for his release, or that the County's policy resulted in other individuals suffering deprivations similar to his. Thus, although Plaintiff has shown the existence ofa policy, the policymaker's knowledge ofthat policy, and the existence of a constitutional
deprivation, he has not shown that the policy he challenges was the moving force behind the constitutional deprivation. The record does not disclose the source of the error that caused
Plaintiff' s detention to continue after the dismissal of the charge against him: It is possible that personnel at the court failed to transmit the dismissal order to the jail, or that personnel at the jail failed to acknowledge receipt of the dismissal order. In either event, however, such an error would not be attributable to the County's judicial authorization policy. Campbell, 43 F.3d at 977. The Court is also not persuaded by Plaintiff's argument that some County officials' knowledge of the dismissal order should be attributed to personnel at the jail. There is no evidence that any of the individuals who Plaintiff speculates knew of the dismissal order also had knowledge of Plaintiff's continued detention, and none of those are individuals "whose edicts or acts may
fairly be said to represent official policy{.]" Compare Monell, 436 U.S. at 694. Furthermore,
accepting Plaintiff's argument, and holding the County liable because some of its employees knew of the dismissal order while others knew that Plaintiff remained in detention after the date of the dismissal order's entry, would amount to a finding of municipal liability on a respondeat
superior theorya result contrary to Section 1983. Monell, 436 U.S. 690-91.
The Court therefore concludes that, as to Plaintiff's Section 1983 claim that is premised on the County's judicial authorization policy, summary judgment is appropriate for Defendant.
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Case 5:16-cv-00855-OLG Document 36 Filed 06/05/17 Page 18 of 19
Conclusion and Order
The Court finds that Defendant's Motion to Dismiss (docket no. 13) presented to the Court materials outside the pleadings, alternatively sought summary judgment pursuant to Fed.
R. Civ. P. 56, and that both parties to these motions were afforded notice of the alternative
summary judgment request and have been provided a reasonable opportunity to present all material that is pertinent to the motion. The Court therefore treats the motion as one for summary judgment under Fed. R. Civ. P. 56, pursuant to Fed. R. Civ. P. 12(d).
The Court concludes that facts not in dispute show that Defendant Bexar County's policy of honoring ICE detainer requests was the moving force behind violations of Plaintiff's Fourth and Fourteenth Amendment rights, which resulted in the unlawful detention of Plaintiff for a period of up to 48 hours. The Court therefore concludes that Plaintiff is entitled to partial summary judgment on the issue of liability.
As to Plaintiff's 42 U.S.C. § 1983 claim relating to the County's policy of requiring receipt ofjudicial authorization by e-mail or facsimile before releasing a detainee, the Court
concludes that facts not in dispute show that the policy was not the moving force behind the
alleged violations of Plaintiff's Fourth and Fourteenth Amendment rights. The Court therefore
concludes that Defendant is entitled to summary judgment as to that claim. It is therefore ORDERED that Defendant's motion seeking summary judgment (docket
no. 13) is GRANTED IN PART as to Plaintiff's second claim for relief, set forth in paragraphs 6 1-70 of his First Amended Complaint, and DENIED IN PART as to all other claims;
It is further ORDERED that Plaintiff's Motion for Partial Summary Judgment (docket no. 22) is GRANTED IN PART as to Plaintiff's first claim for relief, set forth at paragraphs 54-60 of Plaintiff's First Amended Complaint, and DENIED IN PART as to all other claims;
18 of 19

Case 5:16-cv-00855-OLG Document 36 Filed 06/05/17 Page 19 of 19

It is further ORDERED that Plaintiff's Motion for Leave to File a Surreply (docket no.

19) is GRANTED; and

It is further ORDERED that Defendant's Motion to Dismiss (docket no. 4) is DENIED

AS MOOT. SIGNED this

'day of June, 2017.

Ij
'
ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE

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 Case 5:16-cv-00855-OLG Document 58 Filed 08/24/18 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
JULIO TRUJILLO SANTOYO,

FILED

41)6 242018

CLERI(

U.s.
WESTERNO, BY

DtSTR TRICT

CO OF

Plaint ifJ;

OEp CLERk

V.

Civil No. 16-CV-855-OLG

UNITED STATES OF AMERICA et al.,

Defendants.

i) 1 I)
On this date, the Court considered the status of the above-styled case. In this case, Plaintiff asserted claims under 42 U.S.C. § 1983 for violations of the Fourth, Fifth, and Fourteenth Amendments; claims for declaratory relief under 28 U.S.C. § 2201 and 2202; and claims for violations of the Immigration and Nationality Act (INA), 8 U.S.C. § 1226(a) and 1 357(a)(2) and (d). Plaintiff's claims all arise from his detention at the Bexar County Adult
Detention Center (BCADC) from March 24, 2016, to June 7, 2016detention that Bexar County carried out in part on the basis of an Immigration and Customs Enforcement detainer request. Docket no. 11 at 1 & ¶J 54-86. Plaintiff asserted claims against the Department of Homeland
Security (DHS), Immigration and Customs Enforcement (ICE), other federal defendants, and Bexar County.
This Court dismissed Plaintiff's claims against DHS, ICE, and the other federal defendants, docket no. 53 at 2-10, and dismissed Plaintiff's Section 1983 claim against Bexar County that was premised on the County's policy of requiring written judicial authorization before releasing detainees from BCADC, which was set forth in paragraphs 6 1-70 of Plaintiff's First Amended Complaint, docket no. 36 at 18. However, the Court granted Plaintiff's Motion for Partial Summary Judgment as to a single claim: Plaintiff's Section 1983 claim against Bexar
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Case 5:16-cv-00855-OLG Document 58 Filed 08/24/18 Page 2 of 3
County that related to the County's policy of honoring all ICE detainer requests, set forth in paragraphs 54-60 of Plaintiff's First Amended Complaint. Docket no. 36 at 18. The Court reasoned that a municipal policy of honoring all ICE detainer requests violated the Fourth Amendment because of the inevitability under such a policy that municipalities "would engage in warrantless detention of individuals who were not suspected of any criminal offense, but who became the subjects of ICE detainer requests" for reasons unrelated to probable cause to believe they had committed any criminal offense. Docket no. 36 at 14-16. The Court also specifically noted that "the 'collective knowledge doctrine' would not apply in this case because the record
does not indicate any communication or cooperation between the ICE personnel who made the probable cause aetermination and the County officials who processed the detainer request." Docket no. 34 at 12-13 (citing United States v. Powell, 732 F.3d 361, 369 (5th Cir. 2013)).
Defendant Bexar County moved pursuant to Fed. R. Civ. P. 59(e) for reconsideration of the Court's Order granting summary judgment in Plaintiff's favor on his Section 1983 ICE
detainer request claim, and the Court deferred a ruling on that motion pending further rulings
from the United States Court of Appeals for the Fifth Circuit in a case presenting a similar issues regarding the constitutionality of a municipal policy of blanket compliance with ICE detainer requests, City ofEl Cenizo v. Texas, SA-17-CV404-OLG. Docket no. 53 at 1-2.
On March 13, 2018, the Fifth Circuit issued an opinion in the El Cenizo case that reversed this Court's issuance of a preliminary injunction prohibiting enforcement of a state law requiring that municipalities honor all ICE detainer requests. City ofEl Cenizo, Texas v. Texas, 890 F.3d 164, 173 (5th Cir. 2018).' The Fifth Circuit reversed this Court's holding that such a
The Fifth Circuit's initial opinion was withdrawn and a superseded opinion was issued with changes not pertinent to the issues in this case. City ofEl Cenizo, Texas v. Texas, 885 F.3d 332 (5th Cir. 2018), withdrawn from bound volume, opinion withdrawn and superseded, 890 F.3d 164 (5th Cir. 2018)
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Case 5:16-cv-00855-OLG Document 58 Filed 08/24/18 Page 3 of 3

requirement would likely violate the Fourth Amendment, and specifically held that "[u]nder the

collective-knowledge doctrine. . . the ICE officer's knowledge [of the basis of removability for

the purpose of issuing a detainer request] may be imputed to local officials even when those

officials are unaware of the specific facts that establish probable cause of removability" and that

"[c]ompliance with an ICE detainer thus constitutes a paradigmatic instance of the collective-

knowledge doctrine, where the detainer request itself provides the required 'communication

between the arresting officer and an officer who has knowledge of all the necessary facts." El

Cenizo, 890 F.3d at 187-88 (quoting United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007)).

The Fifth Circuit has denied a petition for a rehearing en banc, no petition for certiorari has been

filed, and the deadline for any request for further appellate review of the Fifth Circuit's opinion

has passed.

The Court finds that the parties should submit further briefing regarding the impact of the

Fifth Circuit's opinion in El Cenizo on the Court's grant of summary judgment for Plaintiff.

It is therefore ORDERED that, no later than 14 days from the date of this Order,

Defendant Bexar County shall submit an advisory regarding the impact on its Motion for

Reconsideration (docket no. 41, 43) of the Fifth Circuit's holdings in El Cenizo. Plaintiff shall

file an advisory in response no later than 14 days from the date that Defendant's advisory is filed.

Defendant Bexar County shall file its advisory in reply, if any, no later than 7 days from the date

that Plaintiff's advisory is filed. The parties' filings in response to this Order shall not exceed 10

pages in 1ength.

SIGNED this

day of August, 2018.

ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE
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 Case: 5:16-cv-855 As of: 03/04/2020 01:21 PM CST 1 of 8
CONSOLIDATED,LEAD_CASE
U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:16−cv−00855−OLG

Julio Trujillo Santoyo v. Bexar County, Texas et al Assigned to: Chief Judge Orlando L. Garcia Demand: $1,000,000 Case in other court: 5CCA, 17−51005 (DOC. #54)
5CCA, 19−50124 (Doc. 67) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/26/2016 Date Terminated: 01/17/2019 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Julio Trujillo Santoyo

represented by Juan Carlos Rodriguez De Mott, McChesney, Curtright & Armendariz, LLP 800 Dolorosa, Suite 100 San Antonio, TX 78207 210−354−1844 Fax: 210−212−2116 Email: juancarlos@dmcausa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lance Edward Curtright De Mott, McChesney, Curtright and Associates LLP 800 Dolorosa San Antonio, TX 78207 (210) 354−1844 Fax: 210/212−2116 Email: lance@dmcausa.com ATTORNEY TO BE NOTICED

V. Defendant Bexar County, Texas
Defendant

represented by Jacquelyn Michelle Christilles United States Attorney's Office − Western District Civil Section 601 NW Loop 410 Suite 600 San Antonio, TX 78216 210−384−7365 Email: jacquelyn.christilles@usdoj.gov TERMINATED: 11/13/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristin K. Bloodworth Bexar County District Attorney's Office 101 W. Nueva, 7th Floor San Antonio, TX 78204 210−335−3920 Email: kristin.bloodworth@bexar.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 5:16-cv-855 As of: 03/04/2020 01:21 PM CST 2 of 8

Enrique M. Lucero Field Office Director for the San Antonio Field Office TERMINATED: 10/19/2017
Defendant John Doe 1−5 employees of Immigration and Customs Enforcement TERMINATED: 10/19/2017
Defendant Jeh Johnson Secrtary of Homeland Security TERMINATED: 10/19/2017
Defendant Daniel Bible U.S. Immigration and Enforcement TERMINATED: 10/19/2017
Defendant Leonard Davis U.S. Immigration and Enforcement TERMINATED: 10/19/2017
Defendant Sarah Saldana Director of ICE TERMINATED: 10/19/2017

Gary L. Anderson Assistant United States Attorney 601 NW Loop 410, # 600 San Antonio, TX 78216 (210) 384−7365 Fax: 210/384−7312 Email: stephanie.karam@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary L. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary L. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary L. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary L. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary L. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Consol Defendant
United States Of America TERMINATED: 10/19/2017

represented by Gary L. Anderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/26/2016
08/26/2016

# Docket Text
1 COMPLAINT ( Filing fee $ 400 receipt number 0542−8794442). No Summons requested at this time, filed by Julio Trujillo Santoyo. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit)(Curtright, Lance) (Entered: 08/26/2016)
Case Assigned to Chief Judge Orlando L. Garcia. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (rf) (Entered: 08/29/2016)

Case: 5:16-cv-855 As of: 03/04/2020 01:21 PM CST 3 of 8

08/26/2016 08/29/2016 08/30/2016 09/27/2016 10/11/2016
10/18/2016
10/18/2016
10/18/2016 10/18/2016 10/18/2016 10/19/2016 10/20/2016 11/07/2016 11/10/2016 11/14/2016
11/14/2016 11/21/2016 11/22/2016
11/22/2016

If ordered by the court, all referrals will be assigned to Magistrate Judge Primomo (rf) (Entered: 08/29/2016)
2 REQUEST FOR ISSUANCE OF SUMMONS by Julio Trujillo Santoyo. (Curtright, Lance) (Entered: 08/29/2016)
3 Summons Issued as to All Defendants. (aej) (Entered: 08/30/2016)
4 MOTION to Dismiss and, in the Alternative, Motion for Summary Judgment by Bexar County, Texas. (Attachments: # 1 Affidavit)(Christilles, Jacquelyn) (Entered: 09/27/2016)
5 Response in Opposition to Motion, filed by Julio Trujillo Santoyo, re 4 MOTION to Dismiss and, in the Alternative, Motion for Summary Judgment filed by Defendant Bexar County, Texas (Attachments: # 1 Proposed Order)(Curtright, Lance) (Entered: 10/11/2016)
6 * **DOCUMENT IS DEFICIENT − WRONG PDF ATTACHED (duplicate of doc #4)REPLY to Response to Motion, filed by Bexar County, Texas, re 4 MOTION to Dismiss and, in the Alternative, Motion for Summary Judgment filed by Defendant Bexar County, Texas (Christilles, Jacquelyn) Modified on 10/18/2016, to designate deficiency (rf). (Entered: 10/18/2016)
DEFICIENCY NOTICE: ***NOTIFIED COUNSEL THAT DOCUMENT IS DEFICIENT − WRONG PDF ATTACHED − DOCUMENT APPEARS TO BE A DUPLICATE OF DOC #4**** re 6 Reply to Response to Motion,. (rf) (Entered: 10/18/2016)
7 REPLY to Response to Motion, filed by Bexar County, Texas, re 4 MOTION to Dismiss and, in the Alternative, Motion for Summary Judgment filed by Defendant Bexar County, Texas (Christilles, Jacquelyn) (Entered: 10/18/2016)
10 Amended Exhibit List by Julio Trujillo Santoyo. (rg) (Entered: 10/20/2016)
11 FIRST AMENDED COMPLAINT against Bexar County, Texas, Daniel Bible, Leonard Davis, Jeh Johnson, Enrique M. Lucero, Sarah Saldana amending 1 Complaint, filed by Julio Trujillo Santoyo.(rg) (Entered: 10/20/2016)
8 REQUEST FOR ISSUANCE OF SUMMONS by Julio Trujillo Santoyo. (Rodriguez, Juan) (Entered: 10/19/2016)
9 Summons Issued as to Jeh Johnson, Daniel Bible, and Leonard Davis(aej) (Entered: 10/20/2016)
12 Unopposed MOTION for Extension of Time to File Answer by Jeh Johnson. (Anderson, Gary) (Entered: 11/07/2016)
13 MOTION to Dismiss First Amended Complaint by Bexar County, Texas. (Christilles, Jacquelyn) (Entered: 11/10/2016)
Text Order GRANTING 12 Unopposed Motion for Extension of Time to Answer until and including Monday, November 21, 2016 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 11/14/2016)
Set/Reset Deadlines: Jeh Johnson answer due 11/21/2016. (aej) (Entered: 11/14/2016)
14 Unopposed MOTION for Extension of Time to File Answer by Jeh Johnson. (Anderson, Gary) (Entered: 11/21/2016)
Text Order GRANTING 14 Unopposed Motion for Extension of Time to Answer until and including Monday, December 5, 2016 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 11/22/2016)
15 Response in Opposition to Motion, filed by Julio Trujillo Santoyo, re 13 MOTION to Dismiss First Amended Complaint filed by Defendant Bexar County, Texas (Attachments: # 1 Proposed Order)(Curtright, Lance) (Entered: 11/22/2016)

Case: 5:16-cv-855 As of: 03/04/2020 01:21 PM CST 4 of 8

11/22/2016 11/28/2016 12/02/2016 12/02/2016 12/05/2016 12/06/2016
12/06/2016 12/07/2016 12/08/2016 12/09/2016 12/12/2016
12/12/2016 12/23/2016 01/03/2017 01/09/2017 01/09/2017 01/11/2017
01/11/2017 01/19/2017 01/23/2017

Set/Reset Deadlines: Jeh Johnson answer due 12/5/2016. (aej) (Entered: 11/22/2016)
16 MOTION for Extension of Time to File Response/Reply as to 15 Response in Opposition to Motion by Bexar County, Texas. (Attachments: # 1 Proposed Order)(Christilles, Jacquelyn) (Entered: 11/28/2016)
Text Order GRANTING 16 Motion for Extension of Time to File Reply entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 12/02/2016)
17 REPLY to Response to Motion, filed by Bexar County, Texas, re 13 MOTION to Dismiss First Amended Complaint filed by Defendant Bexar County, Texas (Christilles, Jacquelyn) (Entered: 12/02/2016)
18 Unopposed MOTION for Extension of Time to File Answer by Jeh Johnson. (Anderson, Gary) (Entered: 12/05/2016)
Text Order GRANTING 18 Unopposed Motion for Extension of Time to Answer until and including Friday, December 9, 2016, in which to respond to Plaintiffs Complaint entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 12/06/2016)
Set/Reset Deadlines: Jeh Johnson answer due 12/9/2016. (aej) (Entered: 12/07/2016)
19 MOTION for Leave to File Surreply by Julio Trujillo Santoyo. (Attachments: # 1 Surreply)(Rodriguez, Juan) (Entered: 12/07/2016)
20 REPLY to Response to Motion, filed by Bexar County, Texas, re 19 MOTION for Leave to File Surreply filed by Plaintiff Julio Trujillo Santoyo (Christilles, Jacquelyn) (Entered: 12/08/2016)
21 Unopposed MOTION for Extension of Time to File Answer by Jeh Johnson. (Anderson, Gary) (Entered: 12/09/2016)
Text Order GRANTING 21 Defendant's Unopposed Motion for Extension of Time to Answer until and including Monday, January 9, 2016, in which to respond to Plaintiffs Complaint entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 12/12/2016)
Set/Reset Deadlines: Jeh Johnson answer due 1/9/2017. (aej) (Entered: 12/12/2016)
22 MOTION for Partial Summary Judgment by Julio Trujillo Santoyo. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Curtright, Lance) (Entered: 12/23/2016)
23 RESPONSE to Motion, filed by Bexar County, Texas, re 22 MOTION for Partial Summary Judgment filed by Plaintiff Julio Trujillo Santoyo (Christilles, Jacquelyn) (Entered: 01/03/2017)
24 REPLY to Response to Motion, filed by Julio Trujillo Santoyo, re 22 MOTION for Partial Summary Judgment filed by Plaintiff Julio Trujillo Santoyo (Curtright, Lance) (Entered: 01/09/2017)
25 Unopposed MOTION for Extension of Time to File Answer by Jeh Johnson. (Anderson, Gary) (Entered: 01/09/2017)
Text Order GRANTING 25 Unopposed Motion for Extension of Time to Answer until and including Monday, January 23, 2017 entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 01/11/2017)
Set/Reset Deadlines: Jeh Johnson answer due 1/23/2017. (aej) (Entered: 01/12/2017)
26 NOTICE of Voluntary Dismissal by Julio Trujillo Santoyo (Rodriguez, Juan) (Entered: 01/19/2017)
27 Unopposed MOTION for Extension of Time to File Answer by Jeh Johnson. (Anderson, Gary) (Entered: 01/23/2017)

Case: 5:16-cv-855 As of: 03/04/2020 01:21 PM CST 5 of 8

01/27/2017
01/27/2017 02/08/2017 02/13/2017
02/13/2017 02/22/2017 02/27/2017
02/27/2017
03/24/2017 04/06/2017 05/04/2017 05/17/2017
05/26/2017 06/05/2017
06/05/2017 06/13/2017 06/20/2017

Text Order GRANTING 27 Unopposed Motion for Extension of Time to Answer entered by Chief Judge Orlando L. Garcia. Defendant's have until and including Monday, February 22, 2017, in which to respond to Plaintiffs Complaint.(This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 01/27/2017)
Set/Reset Deadlines: Jeh Johnson answer due 2/22/2017. (aej) (Entered: 01/30/2017)
28 Unopposed MOTION for Leave to File Notice of Supplemental Authority by Julio Trujillo Santoyo. (Attachments: # 1 Notice of case law, # 2 Copy of decision, # 3 Proposed Order)(Curtright, Lance) (Entered: 02/08/2017)
Text Order GRANTING 28 Unopposed Motion for Leave to File Supplemental Authority entered by Chief Judge Orlando L. Garcia. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 02/13/2017)
29 SUPPLEMENTAL Authority by Julio Trujillo Santoyo. (Attachments: # 1 Exhibit)(aej) (Entered: 02/13/2017)
30 Unopposed MOTION for Extension of Time to File Answer by Daniel Bible, Leonard Davis, John Doe 1−5, Jeh Johnson, Enrique M. Lucero, Sarah Saldana. (Anderson, Gary) (Entered: 02/22/2017)
Text Order GRANTING 30 Unopposed Motion for Extension of Time to Answer entered by Chief Judge Orlando L. Garcia. Defendant's have until and including Wednesday, March 08, 2017, in which to respond to Plaintiffs Complaint.((This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 02/27/2017)
Set/Reset Deadlines: Daniel Bible answer due 3/8/2017; Leonard Davis answer due 3/8/2017; John Doe 1−5 answer due 3/8/2017; Jeh Johnson answer due 3/8/2017; Enrique M. Lucero answer due 3/8/2017; Sarah Saldana answer due 3/8/2017. (aej) (Entered: 02/27/2017)
31 ORDER Consolidating Case. All filings must be made in the lead case. Signed by Judge David A. Ezra. (aej) (Entered: 04/03/2017)
32 NOTICE by Bexar County, Texas (Christilles, Jacquelyn) (Entered: 04/06/2017)
33 Defendant's ANSWER to Complaint by Jeh Johnson.(Anderson, Gary) (Entered: 05/04/2017)
34 Order and Advisory. Plaintiff shall submit a proposed scheduling order to the Court within 45 days of the filing of this Order. Notice of right to consent to disposition of a civil case by a U.S. Magistrate Judge.. Signed by Chief Judge Orlando L. Garcia. (rf) (Entered: 05/17/2017)
35 NON−CONSENT to Trial by US Magistrate Judge by Julio Trujillo Santoyo. (Curtright, Lance) (Entered: 05/26/2017)
36 ORDER DENYING AS MOOT 4 Motion to Dismiss ; GRANTING IN PART AND DENYING IN PART 13 Motion to Dismiss ; GRANTING 19 Motion for Leave to File; GRANTING IN PART AND DENYING IN PART 22 Motion for Partial Summary Judgment. Signed by Chief Judge Orlando L. Garcia. (aej) (Entered: 06/06/2017)
37 SURREPLY to Motion filed by Julio Trujillo Santoyo, re 4 MOTION to Dismiss and, in the Alternative, Motion for Summary Judgment filed by Defendant Bexar County, Texas (aej) (Entered: 06/08/2017)
38 CONSENT to Trial by US Magistrate Judge by Daniel Bible, Leonard Davis, Jeh Johnson, Enrique M. Lucero, Sarah Saldana, United States Of America. (Anderson, Gary) (Entered: 06/13/2017)
39 Proposed Scheduling Order by Julio Trujillo Santoyo. (Curtright, Lance) (Entered: 06/20/2017)

Case: 5:16-cv-855 As of: 03/04/2020 01:21 PM CST 6 of 8

06/21/2017
06/23/2017 06/23/2017 06/30/2017
07/05/2017
07/05/2017
07/07/2017
08/18/2017 08/18/2017 08/21/2017 08/25/2017 08/30/2017 09/01/2017 09/01/2017 09/19/2017 10/18/2017 11/10/2017 11/13/2017

40 SCHEDULING ORDER: Pretrial Conference set for 4/4/2018 10:00 AM before Chief Judge Orlando L. Garcia, Jury Selection set for 4/9/2018 09:30AM before Chief Judge Orlando L. Garcia, Jury Trial set for 4/9/2018 09:30 AM before Chief Judge Orlando L. Garcia, ADR Report Deadline due by 8/21/2017, ADR Mediation Completed by 12/11/2017, Amended Pleadings due by 9/11/2017, Discovery due by 12/4/2017, Motions due by 12/18/2017,. Signed by Chief Judge Orlando L. Garcia. (rf) Modified on 6/23/2017 , to correct Amended Pleadings ddl(rf). (Entered: 06/21/2017)
Set/Reset Deadlines: Amended Pleadings due by 9/11/2017, (rf) (Entered: 06/23/2017)
Notice of Correction: ***NOTIFIED COUNSEL THAT THIS ENTRY HAS BEEN EDITED TO REFLECT THE CORRECT AMENDED PLEADINGS DEADLINE OF 9/11/17****re 40 Scheduling Order, (rf) (Entered: 06/23/2017)
41 ***DOCUMENT DEFICIENT − MISSING PROPOSED ORDER*** MOTION for Reconsideration re 36 Order on Motion to Dismiss,,,, Order on Motion for Leave to File,, Order on Motion for Partial Summary Judgment, by Bexar County, Texas. (Christilles, Jacquelyn) Modified on 7/5/2017 (aej). (Entered: 06/30/2017)
42 DEFICIENCY NOTICE:***DOCUMENT DEFICIENT − MISSING PROPOSED ORDER*** re 41 MOTION for Reconsideration re 36 Order on Motion to Dismiss,,,, Order on Motion for Leave to File,, Order on Motion for Partial Summary Judgment, (aej) (Entered: 07/05/2017)
43 CORRECTED MOTION for Reconsideration re 41 MOTION for Reconsideration re 36 Order on Motion to Dismiss,,,, Order on Motion for Leave to File,, Order on Motion for Partial Summary Judgment, by Bexar County, Texas. (Attachments: # 1 Proposed Order)(Christilles, Jacquelyn) (Entered: 07/05/2017)
44 Response in Opposition to Motion, filed by Julio Trujillo Santoyo, re 43 CORRECTED MOTION for Reconsideration re 41 MOTION for Reconsideration re 36 Order on Motion to Dismiss,,,, Order on Motion for Leave to File,, Order on Motion for Partial Summary Judgment, filed by Defendant Bexar County, Texas (Attachments: # 1 Proposed Order)(Curtright, Lance) (Entered: 07/07/2017)
45 MOTION to Dismiss by Jeh Johnson. (Anderson, Gary) (Entered: 08/18/2017)
46 MOTION to Stay Case by Jeh Johnson. (Anderson, Gary) (Entered: 08/18/2017)
47 ADR Report Filed − by Julio Trujillo Santoyo(Curtright, Lance) (Entered: 08/21/2017)
48 Response in Opposition to Motion, filed by Julio Trujillo Santoyo, re 46 MOTION to Stay Case filed by Defendant Jeh Johnson (Attachments: # 1 Exhibit, # 2 Proposed Order)(Curtright, Lance) (Entered: 08/25/2017)
49 ADVISORY TO THE COURT by Bexar County, Texas. (Christilles, Jacquelyn) (Entered: 08/30/2017)
50 Response in Opposition to Motion, filed by Julio Trujillo Santoyo, re 45 MOTION to Dismiss filed by Defendant Jeh Johnson (Attachments: # 1 Exhibit, # 2 Proposed Order)(Curtright, Lance) (Entered: 09/01/2017)
51 REPLY to Response to Motion, filed by Jeh Johnson, Enrique M. Lucero, Sarah Saldana, re 46 MOTION to Stay Case filed by Defendant Jeh Johnson (Anderson, Gary) (Entered: 09/01/2017)
52 MOTION to Compel the Federal Defendants to Respond to Plaintiff's First Request for Production of Documents and Interrogatories by Julio Trujillo Santoyo. (Attachments: # 1 Exhibit)(Rodriguez, Juan) (Entered: 09/19/2017)
53 ORDER GRANTING 45 Motion to Dismiss ; DENYING 46 Motion to Stay Case; DENYING 52 Motion to Compel. Signed by Chief Judge Orlando L. Garcia. (aej) (Entered: 10/19/2017)
54 Appeal of Order entered by District Judge 53 by Julio Trujillo Santoyo. ( Filing fee $ 505 receipt number 0542−10169937) (Rodriguez, Juan) (Entered: 11/10/2017)
NOTICE OF APPEAL following 54 Notice of Appeal (E−Filed) by Julio Trujillo Santoyo. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out

Case: 5:16-cv-855 As of: 03/04/2020 01:21 PM CST 7 of 8

11/14/2017 11/21/2017 03/06/2018 03/27/2018 05/16/2018 08/24/2018
09/20/2018 09/27/2018 09/27/2018 10/31/2018 11/09/2018
12/04/2018 01/17/2019 01/17/2019 02/11/2019 02/11/2019
02/22/2019 02/22/2019 03/13/2019

Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (aej) (Entered: 11/13/2017)
If ordered by the court, all referrals will be assigned to Magistrate Judge Farrer (rf) (Entered: 11/14/2017)
55 TRANSCRIPT REQUEST by Julio Trujillo Santoyo − Transcript is unnecessary for Appeal Purposes. (fs) (Entered: 11/21/2017)
56 ORDER Cancelling Jury Selection/Trial and Pretrial Conference. Signed by Chief Judge Orlando L. Garcia. (aej) (Entered: 03/06/2018)
66 Certified copy of USCA JUDGMENT/MANDATE Dismissing Notice of Appeal,, filed by Julio Trujillo Santoyo, 54 Notice of Appeal (E−Filed) filed by Julio Trujillo Santoyo. (Attachments: # 1 Transmittal Letter from USCA)(fs) (Entered: 01/18/2019)
57 NOTICE by Bexar County, Texas (Christilles, Jacquelyn) (Entered: 05/16/2018)
58 ORDER, The Court finds that the parties should submit further briefing regarding the impact of the Fifth Circuit's opinion in El Cenizo on the Court's grant of summary judgment for Plaintiff. Signed by Chief Judge Orlando L. Garcia. (aej) (Entered: 08/24/2018)
59 ADVISORY TO THE COURT by Julio Trujillo Santoyo. (Curtright, Lance) (Entered: 09/20/2018)
60 ADVISORY TO THE COURT by Bexar County, Texas. (Christilles, Jacquelyn) (Entered: 09/27/2018)
61 NOTICE of Attorney Appearance by Jacquelyn Michelle Christilles on behalf of Bexar County, Texas (Christilles, Jacquelyn) (Entered: 09/27/2018)
62 MOTION to Substitute Attorney by Bexar County, Texas. (Bloodworth, Kristin) (Entered: 10/31/2018)
Text Order GRANTING 62 Motion to Substitute Attorney entered by Chief Judge Orlando L. Garcia. IT IS Therefore, that Kristin K. Bloodworth is substituted as counsel for Bexar County.(This is a text−only entry generated by the court. There is no document associated with this entry.) (ju) (Entered: 11/09/2018)
63 NOTICE OF ATTORNEY UNAVAILABILITY by Bexar County, Texas (Bloodworth, Kristin) (Entered: 12/04/2018)
64 ORDER GRANTING 41 Motion for Reconsideration ; GRANTING 43 Motion for Reconsideration. Signed by Chief Judge Orlando L. Garcia. (aej) (Entered: 01/17/2019)
65 CLERK'S JUDGMENT (aej) (Entered: 01/17/2019)
67 Appeal of Final Judgment 53 , 65 , 64 by Julio Trujillo Santoyo. ( Filing fee $ 505 receipt number 0542−11748606) (Rodriguez, Juan) (Entered: 02/11/2019)
NOTICE OF APPEAL following 67 Notice of Appeal (E−Filed) by Julio Trujillo Santoyo. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (aej) (Entered: 02/11/2019)
68 TRANSCRIPT REQUEST by Julio Trujillo Santoyo. NO HEARINGS. TRANSCRIPT IS UNNECESSARY FOR APPEAL PURPOSES. (dtg) (Entered: 02/22/2019)
Set APPEAL Deadlines: re 67 Notice of Appeal (E−Filed), Notice of Appeal. ELECTRONIC RECORD ON APPEAL DUE BY 3/7/2019. (dtg) (Entered: 02/22/2019)
Certification of the Electronic Record on Appeal in USCA #19−50124 has been accepted by the 5th Circuit. re 67 Notice of Appeal. Attorneys are advised that they

Case: 5:16-cv-855 As of: 03/04/2020 01:21 PM CST 8 of 8

05/24/2019 11/08/2019

may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (dtg) (Entered: 03/13/2019)
69 ORDER of USCA (certified copy). re 67 Notice of Appeal.***Under FED. R. APP. P. 42(b), appellees Enrique Lucero, John Doe 1−5, Kevin McAleenan, Daniel Bible, Leonard Davis, Thomas Homan and USA are dismissed as of May 24, 2019, pursuant to appellant's unopposed motion. Bexar County remains an appellee to the appeal.*** (Attachments: # 1 COPY OF APPELLANT'S UNOPPOSED MOTION FOR PARTIAL DISMISSAL OF APPEAL, # 2 TRANSMITTAL LETTER FROM USCA5)(dtg) (Entered: 05/29/2019)
70 Certified copy of USCA JUDGMENT/MANDATE Dismissing Notice of Appeal, filed by Julio Trujillo Santoyo, 67 Notice of Appeal (E−Filed) filed by Julio Trujillo Santoyo.***Under FED. R. APP. P. 42(b), the appeal is dismissed as ofNovember 08, 2019, pursuant to appellant's motion.*** (Attachments: # 1 TRANSMITTAL LETTER FROM USCA5)(dtg) (Entered: 11/08/2019)

 
 Case 5:16-cv-00855-OLG Document 64 Filed 01/17/19 Page 1 of 11

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

FILED
JAN 17 2019

JULIO TRUJILLO SANTOYO,
Plaint ifJ;

DSTT CLERK, U.S. DSTRCT COURT

WESTERN
BY_

E)EXAS

CLERK

Civil No. 5:16-C V-855-OLG

BEXAR COUNTY,

Defendant.

I) 1 0 This case is before the Court on the Motion for Reconsideration filed by Defendant Bexar
County (docket no. 43). Defendant's motion seeks reconsideration of the Court's Order partially granting Plaintiffs partial motion for summary judgment (docket no. 36 at 18), which related to Plaintiffs Section 1983 claim against Bexar County arising from the County's prolonged detention of him pursuant to a detainer request placed by United States Immigration and
Customs Enforcement (ICE). The Court finds that the motion for reconsideration should be
GRANTED; that the partial summary judgment that was entered in Plaintiffs favor should be vacated; and that summary judgment should be entered in Defendant's favor on that claim.
Background Plaintiff asserted claims under 42 U.S.C. § 1983 for violations of the Fourth, Fifth, and Fourteenth Amendments; claims for declaratory relief under 28 U.S.C. § 2201 and 2202; and claims for violations of the Immigration and Nationality Act ([NA), 8 U.S.C. § 1226(a) and 1357(a)(2) and (d). Plaintiffs claims all arise from his detention at the Bexar County Adult
Detention Center (BCADC) from March 24, 2016, to June 7, 2016detention that Bexar County carried out in part on the basis of an ICE detainer request. Docket no. 11 at 1 & ¶IJ 54-86. Plaintiff asserted claims against the Department of Homeland Security (DHS), Immigration and
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Customs Enforcement (ICE), other federal defendants, and Bexar County. This Court dismissed Plaintiff's claims against DHS, ICE, and the other federal defendants, docket no. 53 at 2-10, and dismissed Plaintiff's Section 1983 claim against Bexar County that was premised on the
County's policy of requiring written judicial authorization before releasing detainees from BCADC, which was set forth in paragraphs 6 1-70 of Plaintiff's First Amended Complaint, docket no. 36 at 18. However, the Court granted Plaintiff's Motion for Partial Summary Judgment as to a single claim: Plaintiff's Section 1983 claim against Bexar County that related to the County's policy of honoring all ICE detainer requests, which was set forth in paragraphs 5460 of Plaintiff's First Amended Complaint. Docket no. 36 at 18. The Court reasoned that a municipal policy of fulfilling all ICE detainer requests violated the Fourth Amendment because of the inevitability under such a policy that municipalities "would engage in warrantless detention of individuals who were not suspected of any criminal offense, but who became the subjects of ICE detainer requests" for reasons unrelated to probable cause to believe they had
committed any criminal offense. Docket no. 36 at 14-16. The Court also specifically noted that "the 'collective knowledge doctrine' would not apply in this case because the record does not indicate any communication or cooperation between the ICE personnel who made the probable cause determination and the County officials who processed the detainer request." Docket no. 34 at 12-13 (citing United States v. Powell, 732 F.3d 361, 369 (5th Cir. 2013)).
Defendant Bexar County moved pursuant to Fed. R. Civ. P. 59(e) for reconsideration of the Court's Order granting summary judgment in Plaintiff's favor on his Section 1983 ICE
detainer request claim, and the Court deferred a ruling on that motion pending further rulings
from the United States Court of Appeals for the Fifth Circuit in a case presenting similar issues regarding the constitutionality of a municipal policy of blanket fulfillment of ICE detainer requests, City ofEl Cenizo v. Texas, SA-17-CV-404-OLG. Docket no. 53 at 1-2.
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On March 13, 2018, the Fifth Circuit issued an opinion in the El Cenizo case that reversed this Court's issuance of a preliminary injunction prohibiting enforcement of a state law requiring that municipalities honor all ICE detainer requests. City ofEl Cenizo, Texas v. Texas, 890 F.3d 164, 173 (5th Cir. 2018).' The Fifth Circuit "disavowed" this Court's prior summary judgment order in this case to the extent that it "suggested the Fourth Amendment requires probable cause of criminality in the immigration context[,]" El Cenizo, 890 F.3d at 188 n.22, and reversed this Court's holding in that case that a state law mandate of total detainer fulfillment would likely violate the Fourth Amendment, reasoning in part that "[u]nder the collectiveknowledge doctrine. . . the ICE officer's knowledge [of the basis of removability for the purpose of issuing a detainer request] may be imputed to local officials even when those officials are unaware of the specific facts that establish probable cause of removability[.]" El Cenizo, 890 F.3d at 187-88. The Fifth Circuit further found that "[c]ompliance with an ICE detainer thus constitutes a paradigmatic instance of the collective-knowledge doctrine, where the detainer request itself provides the required 'communication between the arresting officer and an officer who has knowledge of all the necessary facts." El Cenizo, 890 F.3d at 187-88 (quoting United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007)). The Fifth Circuit has denied a petition for a rehearing en banc, no petition for certiorari has been filed, and the deadline for any request for further appellate review of the Fifth Circuit's opinion has passed.
Pursuant to an Order from this Court, the parties have submitted briefing regarding the
imapct of the Fifth Circuit's opinion in El Cenizo on this Court's partial grant of summary judgment for Plaintiff. Docket nos. 59; 60. Plaintiff contends that nothing in the Fifth Circuit's El
1 The Fifth Circuit's initial opinion was withdrawn and a superseded opinion was issued with changes not pertinent to the issues in this case. City ofEl Cenizo, Texas v. Texas, 885 F.3d 332 (5th Cir. 2018), withdrawn from bound volume, opinion withdrawn and superseded, 890 F.3d 164 (5th Cir. 2018).
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Cenizo opinion should alter this Court's partial grant of summary judgment, both because the
Fifth Circuit in that case considered facial Fourth Amendment challenges, and this case presents an as-applied challenge; and because the detainer that provided the basis for Plaintiff's detention was not accompanied by an administrative warrant and predated changes to ICE's detailer policy
that requires the issuance of an administrative warrant with every detainer. Docket no. 59 at 4-6. Plaintiff also argues that Bexar County's reliance on the detainer that provided the basis for his
prolonged detention violated the Fourth Amendment for an additional reason: Because ICE made no assessment regarding whether Plaintiff posed an escape risk, which Plaintiff argues rendered the detainer facially invalid under 8 U.S.C. § 1357(a)(2). Docket no. 59 at 4-5 (citing Moreno v. Napolitano, 213 F. Supp. 3d 999 (N.D. Ill. 2016)). For that reason, Plaintiff argues, the facially defective detainer could not have provided the predicate to apply the collective knowledge doctrine, since "ICE officers cannot delegate power that they cannot exercise themselves." Docket no. 59 at 5. Plaintiff argues that Bexar County may not rely upon ICE's inaccurate representation at the time the detainer issued that a final removal order had been entered because
the County detained Plaintiff pursuant to its policy of complying with all detainer requests
including those in which the detainer request was unaccompanied by any assertion of probable cause or risk of escape. Docket no. 59 at 8-9. Finally, Plaintiff argues that Bexar County "willfully ignored" evidence tending to dissipate the probable cause of removability because it continued to hold Plaintiff even after ICE failed to take custody of Plaintiff for more than 48 hours of the dismissal of the criminal charges against him, and ignored Plaintiff's and his girlfriend's complaints regarding his continued detention more than 48 hours after dismissal of the criminal charges. Docket no. 59 at 9-10. Plaintiff acknowledges Bexar County's contention that it was unaware of the dismissal of the charges, but argues that "if collective-knowledge is
the touchstone for the basis for the arrest, the court order dismissing the charge [should be]
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imputed to them." Docket no. 59 at 10 n.4. On this reasoning, Plaintiff argues that, to the extent that the Court reconsiders its Order on the parties' summary judgment motion, "it should find that the County is liable for the full amount of time they detained Santoyo without a warrant under the collective knowledge doctrine" or alternatively, "allow discovery into whether the County has a practice or custom of ignoring dissipating evidence in other cases involving the detention of noncitizens pursuant to detainers." Docket no. 59 at 10-11.
In its briefing, Bexar County argues that the Fifth Circuit in El Cenizo established a rule
under which the collective knowledge doctrine imputes probable cause based on the existence of a detainer, regardless of whether that detainer is accompanied by an administrative warrant as is now required under ICE policy implemented after Plaintiff's release but before the El Cenizo
litigation. Docket no. 60 at 2. Bexar County further argues that the detainer issued in this case communicated probable cause to support Plaintiff's prolonged detention because a box on the detainer form, which was signed by a "Deportation Officer," was checked so as to attest that
"[p]robable cause exists that the subject is a removable alien. . . based on "a final order of removal against subject[.J" Docket no. 60 at 5. Bexar County acknowledges Plaintiff's
arguments that, because this attestation was incorrectno final order of removal had actually been enteredthe detainer was invalid, but argues that Bexar County nonetheless correctly
relied upon the false attestation of probable cause. Docket no. 60 at 5-6. These arguments largely mirror those asserted in Bexar County's motion for reconsideration, which was filed before the
Fifth Circuit's El Cenizo opinion was issued. Legal Standards and Analysis
Rule 59(e) of the Federal Rules of Civil Procedure permits a court to alter or amend a judgment upon "a showing of(1) an intervening change in controlling law; (2) new evidence not
previously available; or (3) the need to correct a clear legal error or to prevent manifest
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Case 5:16-cv-00855-OLG Document 64 Filed 01/17/19 Page 6 of 11
injustice." Farquhar v. Steen, 611 Fed. Appx. 796, 800 (5th Cir. 2015) (quoting In re Benjamin
Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002)).
In the context of a claim under 42 U.S.C. § 1983, "a municipality cannot be held vicariously liable for the constitutional torts of its employees or agents"; rather, "[a] municipality
is liable only for acts directly attributable to it through some official action or imprimatur." Valle
v. City ofHouston, 613 F.3d 536, 541 (5th cir. 2010). Thus, to establish municipal liability under Section 1983, a plaintiff must plead and prove "(1) an official policy (or custom), of which (2) a
policymaker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose 'moving force' is that policy or custom." Valle, 613 F.3d at 54 1-42 (quoting Pineda v. City ofHouston, 291 F.3d 325, 328 (5th Cir. 2002)). To establish that a municipal
policy or practice is the "moving force" of a constitutional violation, a plaintiff "must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Valle, 613
F.3d at 542 (quoting Bd. ofthe County Comm'rs v. Brown, 520 U.S. 397, 404 (1997)). The
"requisite degree of culpability," in turn, requires a showing that "the municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right
will follow the decision." Valle, 613 F.3d at 542; Piotrowski v. City ofHouston, 237 F.3d 567, 579 (5th Cir. 2001).
The Court previously found that facts not in dispute establish that Plaintiff has satisfied the first and second elements of his Section 1983 claim, showing that Bexar County, at the time of Plaintiffs detention, maintained a policy, of which the then-Sheriff Susan Pamerleau had actual knowledge, of fulfilling all ICE detainer requests subject only to exceptions not pertinent to this case. Docket no. 36 at 8-9. Bexar County does not seek reconsideration of these findings. Rather, its arguments go to the third Section 1983 prong: Whether Plaintiff suffered any Fourth
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Amendment violation that flowed from the ICE detainer fulfillment policies that Bexar County

maintained at the time of his detention.

Detention pursuant to an ICE detainer request is a Fourth Amendment seizure that must

be supported by probable cause or a warrant. Arizona v. United States, 567 U.S. 387, 132 S. Ct.

2492, 2509 (2012); Morales v. Chadbourne, 793 F.3d 208, 217 (1st Cir. 2015) ("Because [the

detainee] was kept in custody for a new purpose after she was entitled to release, she was

subjected to a new seizure for Fourth Amendment purposesone that must be supported by a

new probable cause justification."); Cervantez v. Whitfield, 776 F.2d 556, 560 (5th Cir. 1985)

(reciting stipulation). As the Court previously noted, the detainer in this case that supplied the

basis for Bexar County's prolonged detention of Plaintiff indicated that "probable cause exists

that the subject is a removable alien. . . based on. . . a final order of removal against the

subject." Docket no. 22-1 at 11. Plaintiff assertsand Bexar County does not appear to

disputethat this recitation ofprobable cause was inaccurate because at the time the detainer

was issued, no final order of removal had in fact been entered as to Plaintiff. Docket nos. 59 at 8-

9; 60 at 5-6. The Court's previous Order did not reach the truth or falsity of the recitation of

probable cause set forth in the detainer. Instead, the Court reasoned that, even assuming the truth

of the detainer's probable cause claim, probable cause could not be imputed to Bexar County for

two reasons: first, because ICE had assessed the existence of probable cause that Plaintiff was

removable, not whether he had committed any criminal offense; and second, because "even if the

probable cause requirements between County officials and 8 U.S.C. § 1 357(d)(1) were interchangeable," the record "does not indicate any communication or cooperation between the

ICE personnel who made the probable cause determination and the County officials who

processed the detainer request[,]" thus precluding application of the collective knowledge

doctrine. Docket no. 36 at 12-13.

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Bexar County is correct that the Fifth Circuit has rejected this reasoning. In El Cenizo, the Fifth Circuit found that, since "Courts have upheld many statutes that allow seizures absent probable cause that a crime has been committed"-----collecting cases involving the seizure of the
mentally ill, incapacitated, and juvenile runawaysthis Court had erred in "holding that state and local officers may only arrest individuals if there is probable cause of criminality." El
Cenizo, 890 F.3d at 188; see also Weisler v. Jefferson Par. Sheriff's Office, 736 Fed. Appx. 468, 471(5th Cir. 2018) ("the Fourth Amendment does not limit arrests to criminal law violations"; concluding that arrest for violation of state window-tint statute did not violate Fourth Amendment). The El Cenizo Court also specifically disavowed this Court's prior summary judgment order in this case, as well as one other district court opinion, to the extent that they "suggested the Fourth Amendment requires probable cause of criminality in the immigration context." El Cenizo, 890 F.3d at 188 n.22.
Likewise, the Fifth Circuit in El Cenizo found that "[u]nder the collective-knowledge
doctrine... {an] ICE officer's knowledge may be imputed to local officials even when those officials are unaware of the specific facts that establish probable cause of removability." El
Cenizo, 890 F.3d at 187 (citing United States v. Zuniga, 860 F.3d 276, 283 (5th Cir. 2017)). The
Fifth Circuit reasoned that the "some degree of communication" requirement is satisfied by the
checked box on the detainer form stating a conclusion that probable cause exists, since the officer carrying out the seizure "need not have personal knowledge of the evidence that gave rise
to the reasonable suspicion or probable cause, so long as he is acting at the request of those who
have the necessary information." El Cenizo, 890 F.3d at 187 (quoting Zuniga, 860 F.3d at 283). For that reason, the Fifth Circuit found that "[cjompliance with an ICE detainer thus constitutes a
paradigmatic instance of the collective-knowledge doctrine, where the detainer request itself
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provides the required "communication between the arresting officer and an officer who has knowledge of all the necessary facts." El Cenizo, 890 F.3d at 187-88.
The Court finds that the development of this appellate authority establishes a basis for relief under Fed. R. Civ. P. 59(e) and requires this Court to vacate its partial grant of summary judgment in Plaintiff's favor. Although the challenge in the El Cenizo litigation was a facial
Fourth Amendment challenge, the Fifth Circuit's holdings in that casethat the Fourth
Amendment does not require suspicion of criminality and regarding the collective knowledge
doctrineare not specific to the context of a facial challenge. And, although Plaintiff is correct
that El Cenizo considered the Fourth Amendment implications of a state-law mandate of detainer fulfillment in the context of an ICE policy that requires administrative warrants to accompany all
detainers, the Court agrees with Bexar County that, under the facts in this case, the detainer that
formed the basis for Plaintiff's prolonged detention included an assertion of probable cause of
removability equivalent to that found in an administrative warrant. Docket no. 22-1 at 11. Plaintiff argues for two reasons that the detainer in this case provided an inadequate predicate for
application of the collective knowledge doctrine: first, because it inaccurately stated that a final order of removal had already been entered; and second, because it contained no indication that any ICE agent had, in addition to assessing the existence of probable cause of removability, determined the existence of an escape risk, which Plaintiff argues is required under 8 U.S.C. § 1357(a)(2). The Supreme Court has made clear that, when a seizure is carried out by an officer
whose sole basis for reasonable suspicion or probable cause was communicated to him in accordance with the collective knowledge doctrine, and that communicated suspicion is later revealed to have been deficient, "an otherwise illegal [seizure] cannot be insulated from
challenge by the decision of the instigating officer to rely on fellow officers to make the
[seizure]." United States v. Hensley, 469 U.S. 221, 230 (1985) (quoting Whiteley v. Warden,
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Wyo. State Penitentiary, 401 U.S. 560, 568 (1971)). However, in this case, Plaintiff need not only establish a Fourth Amendment violation to prevail on his Section 1983 municipal liability claim against Bexar County; he must show that that the County's practice with respect to blanket fulfillment of ICE detainers is either facially unconstitutional or was "promulgated with deliberate indifference to the 'known or obvious consequences' that constitutional violations
would result." Piotrowski, 237 F.3d at 579 (quoting Bd. of County Corn 'rs ofBryan County, Ok!.
v. Brown, 520 U.S. 397, 405 (1997)). This Court previously found that Plaintiff had satisfied this requirement because "{a]n obvious consequence of Defendant's practice is that individuals who are the subjects of ICE detainers will be detained by County officials who make no assessment, and have no knowledge, regarding whether probable cause exists that those individuals have committed any crime." Docket no. 36 at 13. This conclusion is untenable in light of the Fifth
Circuit's holding that the Fourth Amendment imposes no requirement of suspicion of criminality
in the immigration context. Even assuming that Plaintiff is correct that ICE erroneously stated the existence of a final order of removal and failed to assess whether he posed an escape risk in
this case, the Fourth Amendment violation flowing from that erroran error which Bexar County would not have been in a position to detectis not a "known or obvious consequence"
of Bexar County's policy of blanket ICE detainer fulfillment. The same is true of Plaintiffs assertion that the detainer was invalid because of the absence of an individualized determination by ICE that Plaintiff posed a flight risk. Even assuming the truth of Plaintiffs assertion that the
detainer was deficient for this reason, such a deficiency would not render Bexar County liable for
honoring the detainer because it is not a "known or obvious consequence" of Bexar County's policy of blanket detainer fulfillment. Rather, Plaintiffs claim that his detainer was deficient for this reason is one that sounds against the federal Defendantsand one that the Court has already
considered and dismissed. Docket no. 53 at 5-9.
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Plaintiff provides no authority in support of his argument that the collective knowledge doctrine should be applied to impute to Bexar County knowledge regarding the dismissal of the
state-court criminal charges against him. The Court has already considered and ruled upon Plaintiff's Section 1983 claim that relates to Bexar County's failure to promptly release him
following dismissal of the criminal charges, and Plaintiff has not identified any intervening
change in controlling law, newly discovered evidence, or legal error that would provide the basis for relief from that judgement under Fed. R. Civ. P. 59(e).
For these reasons, the Court finds that, in light of the standards set forth by the Fifth Circuit in El Cenizo, these is no genuine dispute of material fact regarding Plaintiff's Section 1983 claim arising from Bexar County's fulfillment of the ICE detainer that was placed as to him, and that Bexar County is entitled to a judgment as a matter of law on that claim. The Court accordingly concludes that Defendant Bexar County's motion seeking summary judgment on this claim, docket no. 13, should be GRANTED.
Conclusion and Order
It is therefore ORDERED that Defendant's Motion for Reconsideration (docket nos. 41; 43) is GRANTED; and
It is further ORDERED that the portion of this Court's Order partially granting summary judgment for Plaintiff on the claim set forth at ¶J 54-60 of Plaintiff's First Amended Complaint (docket no. 36 at 18) is VACATED, and that Defendant's motion seeking summary judgment on
that claim (docket no. 13) is GRANTED. There are no claims or issues remaining to be resolved in this case. It is therefore
ORDERED that the Clerk of the Court shall close this case upon entry of this Order.

SIGNED this

day of January, 2019.
ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE
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 Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 1 of 19

FILED

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

OCT 1 8 2016
CLERK U.

Julio Trujillo Santoyo,

§

§

Plaintiff,

§

§

V.

§

§

Bexar County, Texas; Jeh Johnson, Secretary §

of the Department of Homeland Security;

§

(DHS); Sarah Saldana, Director of

§

Immigration and Customs Enforcement (ICE); §

Daniel Bible, Field Office Director for the San §

Antonio Field Office; Enrique M. Lucero, §

Former Field Office Director for the San

§

Antonio Field Office; and Leonard Davis; ICE §

Deportation Officer;

§

§

Defendants.

§

CIVIL ACTION NO. 5:16-cv-855 OLG

PLAINTIFF'S AMENDED COMPLAINT

The Plaintiff, Julio Trujillo Santoyo, through counsel, respectfully brings this action seeking damages against the Defendants for unlawfully detaining him. The Plaintiff was unlawfully detained in the Bexar County Adult Detention Center (BCADC) from March 24, 2016
until June 8, 2016 without notice of any charges, without a warrant, a notice to appear, or an order of removal in violation of law. In furtherance of his claim the Plaintiff alleges as follows:

INTRODUCTION

1. The Plaintiffwas unlawfully detained in the BCADC after his State criminal charges were
dismissed on two unlawful grounds. First, in excess of its statutory authority and in violation of
the Fourth, Fifth, and Fourteenth Amendments, Immigration and Customs Enforcement (ICE) issued a detainer requesting Defendant Bexar County to detain the Plaintiff after his charges were

dismissed. Second, the Defendant Bexar County held the Plaintiff for approximately 76 days after

Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 2 of 19
his charges were dismissed pursuant to its policy, practice, and custom ofnot releasing individuals
until it receives an email or facsimile from a judicial authority. 2. ICE's statutory authority to issue detainers, without a warrant, is limited. 8 U.S.C. § 1357(d); 8 U.S.C. § 1226; and 8 U.S.C. § 1357(a). However, ICE regularly exceeds its statutory authority in issuing detainers without a warrant, without a notice to appear, without a final order
of removal, and without providing the affected individual notice about the immigration detainer. ICE's detainer practice exceeds the authority granted to it under the Immigration and Nationality
Act (INA). 3. Immigration detainers violate the Fourth Amendment because they result in an arrest and
detention without a warrant. The detainers violate the due process clause of the Fifth and
Fourteenth Amendments inasmuch as the affected individual is provided no notice about a pending charge, and is not afforded a hearing or any process by which to challenge the detainer before any judicial or administrative authority.
4. Defendant Bexar County has no authority to arrest individuals for violations of the federal immigration laws. Nevertheless, Defendant Bexar county admitted in documents filed with this Court that it maintains a policy, practice and custom of detaining individuals in the BCADC whenever ICE issues them a detainer request. ECF Doc. 4-1 at ¶ 5. Pursuant to this policy, practice, and custom, the Defendant Bexar County detains individuals suspected of violating federal
immigration law even when it lacks the authority to do so. The Defendant Bexar County detains individuals pursuant to ICE detainer requests even when the person's State criminal charges have been dismissed or when the affected individual has posted a bond. This policy, practice, and custom was a moving force behind the Plaintiff being unlawfully detained in the BCADC for approximately 76 days after his criminal charges were dismissed. The Defendant Bexar County

Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 3 of 19
expends significant law enforcement resources in an unlawful attempt to enforce federal
immigration law. The Defendant Bexar County's illegal and wasteful conduct has caused, and if
not addressed will continue to cause, substantial harm to Texas residents.
5. The Defendant Bexar County also admits to a policy, practice, and custom of not releasing
detainees until it receives an email or facsimile from a judicial authority informing it that charges were dismissed against an individual in its custody. Id. at ¶ 3. This policy, practice, and custom was a moving force behind the Plaintiff being detained for approximately 76 days after his criminal
charges were dismissed in violation of the Fourth, Fifth and Fourteenth Amendments. The
Plaintiffs criminal charges were dismissed on March 24, 2016, but the Defendant Bexar County did not release him until June 8, 2016, pursuant to this policy or custom. 6. Plaintiff also brings constitutional claims under the Fourth and Fifth Amendments pursuant to Bivens v. Six Unknown NamedAgents ofthe Federal Bureau ofNarcotics, 403 U.S. 388 (1971), against Defendants Lucero and Davis. These ICE officers are directly responsible for the Plaintiffs illegal detention. These federal officers incorrectly alleged in their detainer that they had a final order of removal against the Plaintiff, which resulted in Plaintiffs unlawful detention. These officers also left the Plaintiff to languish in the BCADC for approximately 76 days without a warrant for arrest, without notice of any charges against him (there were none), without any opportunity to be considered for release on bond, and without any other legal process of any kind. 7. To vindicate his fundamental constitutional rights, Plaintiff seeks a declaratory judgment that the Defendants' policies, practices, and customs described herein are unlawful and/or unconstitutional. Plaintiff also seeks monetary compensation for Defendants' unconstitutional deprivation of his liberty.
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JURISDICTION
8. This action arises under the Constitution and laws of the United States. This Court has
jurisdiction pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1331 and 1343. 9. The Court has jurisdiction to consider the Plaintiff's statutory claims under the Administrative Procedures Act (APA) under federal question jurisdiction. 28 U.S.C. § 1331 10. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. § 2201 and 2202.
11. Venue is proper in this district because the Plaintiff resides in Bexar County and all of the
underlying events occurred in this district. 28 U.S.C. § 139 1(b). PARTIES
12. Plaintiff is an adult who currently resides in Bexar County, Texas. He was unlawfully detained by Defendants in the BCADC for approximately 76 days after his State charges for misdemeanor assault were dismissed. 13. Defendant Bexar County, Texas is a county organized and operating under the laws of the
State of Texas. Defendant Bexar County is geographically located within the boundaries of this
district and can be sued in its own name. The Defendant Bexar County includes, but is not limited to, the Bexar County Courts, the District Attorney's Office, the Bexar County Sheriff's Office and the BCADC staff.
14. Defendant Jeh Johnson is the Secretary of the Department of Homeland Security (DHS). Defendant Johnson is charged with administering the NA. He is being sued in his official capacity. 15. Defendant Sarah Saldana is the Director of ICE. Defendant Saldana is charged with enforcing the NA including the issuance of immigration detainers to law enforcement agencies
(LEA). Defendant Saldana is being sued in her official capacity.
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16. Defendant Daniel Bible is the current Field Office Director ofthe San Antonio Field Office
for ICE. Defendant Bible is charged with enforcing the INA in the San Antonio district including
the issuance of detainer requests to the Defendant Bexar County and other LEAs within the San Antonio district's zone of authority. Defendant Bible is responsible for formulating and implementing policies applicable to the ICE San Antonio Field Office's detention of prisoners,
including policies to ensure that those inmates housed at ICE's request at the Bexar County Jail are detained pursuant to and in accordance with federal regulations, and that their detention does not violate the Constitution. Defendant Bible is also responsible for training and supervising his staff to ensure that those inmates held at ICE's request in the Bexar County Jail are detained pursuant to and in accordance with federal law and that their detention does not violate the Constitution. Defendant Bible is being sued in his official capacity. 17. Defendant Enrique Lucero is the former Field Office Director of the San Antonio Field
Office for the ICE Office of Detention and Removal Operations. He was the Director during the
time period when Plaintiff Trujillo was illegally detained. Defendant Lucero was responsible for formulating and implementing policies applicable to the ICE San Antonio Field Office's detention of prisoners, including policies to ensure that those inmates housed at ICE's request at the Bexar County Jail are detained pursuant to and accordance with federal regulations, and that their detention does not violate the Constitution. Defendant Lucero was also responsible for training and supervising his staff to ensure that those inmates held at ICE's request in the Bexar County Jail are detained pursuant to and in accordance with federal law and that their detention does not violate the Constitution. At all times relevant to this Complaint, Defendant Lucero acted or failed to act under color of federal law. Defendant Lucero is being sued in his individual capacity. 18. Defendant Leonard Davis is an ICE officer who issued the immigration detainer against
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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 6 of 19
the Plaintiff which led to his unlawful detention. Defendant Davis is being sued in his individual capacity.
FACTS A. Immigration detainer requests generally. 19. ICE issues detainer requests to State and local LEAs when they desire to investigate
whether an individual in the custody of an LEA violated federal immigration law. The detainer
requests LEAs to detain individuals after their charges are dismissed, they posted a bond, or served their sentence to permit ICE time to assume custody. 20. ICE detainer requests carry no lawful mandate and the LEA who receives such a request is under no lawful obligation to abide by it. See Galarza v. Szalczyk, 745 F.3d 634, 640-45 (3d Cir. 2014) and 8 C.F.R. § 287.7 ("The detainer is a request that such agency advise the Department, prior to the release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible."). In fact, the Tenth Amendment prevents federal immigration officials from ordering state or local
officials to imprison suspected immigration violators "at the request of the federal government."
Galarza, 745 F.3d at 643. 21. When an LEA continues to detain a person after their charges are dismissed, they posted bond, or they served their sentence, the LEA has re-arrested the individual without a warrant. 22. ICE detainer requests are issued to LEAs on forms 1-247, I-247N, I-247D, and Form 1-247X. These forms are not warrants, enforceable orders, and are in no way binding upon the local LEA that receives it. Nor do immigration detainers require probable cause that the detainee committed a crime. In fact, immigration detainers are routinely used to detain individuals based
upon suspected civil violations of the immigration laws. 23. ICE does not provide an administrative procedure for challenging the issuance of a
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detainer. Nor does the Defendant Bexar County provide any process by which the affected individual can challenge the ICE detainer. 24. Immigration detainers are not subject to review by a neutral judge or magistrate, nor are they subject to the same procedural and substantive due process requirements and safeguards to which ordinary criminal detainers are subject. 25. The statutory authority for such detainers is located in 8 U.S.C. § 1357(d). Although the
plain language of § 1357(d) plainly limits the use of detainers to individuals detained "for violation of any law relating to controlled substances," ICE routinely issues detainers against individuals
who are detained for offenses other than controlled substances violations. 26. Congress provided that ICE must obtain "a warrant issued by the Attorney General" to arrest an individual "pending a decision on whether the alien is to be removed from the United
States." 8 U.S.C. § 1226(a). ICE can only effectuate warrantless arrests for a violation of the
immigration law when the officer has reason to believe that the individual "is likely to escape
before a warrant can be obtained for his arrest . . . ." 8 U.S.C. § 1357(a)(2). In violation of § I 357(a)(2), ICE routinely issues detainerswhich are not warrantsthat result in an individual's
arrest by an LEA without conducting an individualized determination about whether the person is likely to escape. See, e.g., Moreno v. Napolitano, No. 11-C-5452, 2016 U.S.Dist.LEXIS 136449 (N.D. Ill. Sep. 30, 2016) (interpreting § 1357(a)(2) to require an individualized determination that the detainee "is likely to escape" before a warrantless arrest pursuant to an ICE detainer can be effectuated).
27. Based on information and belief, ICE does not always assume custody of a person after
they issue a detainer. Based on information and belief, in some cases, ICE will assume custody pursuant to a detainer and then release the individual if the person is not an enforcement priority.
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B. Defendant Bexar County's policies, practices, or customs were the moving force behind Plaintiff Trujillo's, and other similarly situated individuals, unconstitutional detention in the
BCADC. i. ICE detainer requests. 28. Defendant Bexar County routinely detains individuals without a warrant whenever ICE issues a detainer pursuant to an official county policy, practice, or custom. 29. In a sworn statement provided to this Court, the Defendant Bexar County admitted that
they have a policy, practice and custom of detaining individuals pursuant to ICE detainer requests. ECF Doc. 4-1 at ¶ ¶ 5-7. Thus, it is the actual policy, practice and custom of the Defendant Bexar
County to hold detainees with immigration detainers in the BCADC awaiting pick-up by the federal immigration authorities, even when such people have had bond posted on their behalf, have paid their fines, have no additional charges pending against them, and are not subject to any judicial order requiring or authorizing their continued detention. 30. Defendant Bexar County's policy, practice or custom is to enforce immigration detainers
regardless of whether immigration officials have, or even claim to have, a warrant to arrest the
suspected immigration violator.
31. Defendant Bexar County's policy, practice or custom of detaining individuals without a
warrant whenever immigration requests them to do so is a "persistent, often repeated, constant" constitutional violation that "constitutes a custom and policy." Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). On March 23, 2016, Sheriff Susan Pamerleau testified before the Texas State Senate on border security that there were 90 people detained in the BCADC with ICE
detainer requests, which demonstrates the high number of individuals affected by the Defendant Bexar County's policy, practice or custom. Video testimony available at
http://ticsenate.granicus.com/MediaPlaver.php?view id 40&clip id 10949.
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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 9 of 19
32. The Defendant's practice, policy or custom was the moving force behind the Plaintiff's
unlawful detention, and the unconstitutional detention of other similarly situated individuals.
33. Defendant Bexar County's policymakers have actual and constructive knowledge about the constitutional violations that result from the policy to hold detainees whenever ICE issues a
hold or detainer and regardless ifthere is a properly issued warrant for arrest. Indeed, Bexar County
Sheriff Susan Pamerleau represented to Texas State Senator Brian Birdwell that the Defendant Bexar County complies with all immigration detainer requests. See Exh. A. Defendant Bexar
County detains such individuals regardless if there is a properly authorized warrant allowing them
to do so. ii. The Defendant Bexar County's "email/facsimile" policy.
34. In a sworn affidavit filed with this Court, the Defendant Bexar County admitted to the following policy, practice or custom regarding when they we will release inmates from the BCADC:
Inmates may only be released from BCADC pursuant to appropriate judicial authorization.
This may include bond or dismissal of charges. Judicial authorization is received by
BCADC via facsimile and/or email. ECFDoc.4-1 atlJ3. 35. Thus, the Defendant Bexar County's actual policy, practice or custom is not to release
inmateswho have had their charges dismisseduntil they receive an email or facsimile. 36. The Defendant Bexar County's policymakers have actual and constructive knowledge of this policy, practice and custom. Id. at ¶ 2. 37. The Defendant Bexar County's policy, practice, or custom of not releasing inmates until
an email or facsimile is received from their own employees was a moving force behind Plaintiff's unlawful detention in the BCADC.

Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 10 of 19
C. PlaintiffTrujillo's unlawful detention in the BCADC from March 24, 2016 until June 8, 2016.
38. On or around January 20, 2016, Plaintiff was arrested for misdemeanor assault and detained at the BCADC. 39. On January 20, 2016, in a custodial setting at the BCADC, and without access to counsel, Defendant Leonard Davis, an ICE agent, interrogated the Plaintiff about his immigration status. Defendant Davis failed to Mirandize the Plaintiff before his custodial interrogation. Subsequent to the custodial investigation, Defendant Davis filed an immigration detainer with the Defendant Bexar County requesting that the Plaintiff remain in the BCADC beyond the time when he would otherwise be released to allow ICE to assume his custody. Exh. B (Form I-247D). 40. In the detainer request, Defendant Davis inaccurately represented that probable cause
existed that the Plaintiff was a removable alien based on a final order of removal. On January, 20, 2016, the day when the detainer was issued, ICE had no final order of removal which they could legally execute against the Plaintiff. They did not procure an order of removal until June 8, 2016.
Ex. C (Removal Order). Thus, Defendant Davis' basis for "probable cause" was incorrect as a
matter of law and the Plaintiff was provided no legal channel by which to challenge it. 41. At no time while Plaintiff was in custody at the BCADC did ICE seek a warrant of arrest
for federal immigration violations. 42. On or around March 24, 2016, Plaintiff's misdemeanor assault charge was dismissed. See
Exh. D (Order of dismissal).
43. The Plaintiff remained in unlawful detention at the BCADC after his charges were dismissed pursuant to the ICE detainer request and the Defendant Bexar County's policy, practice
or custom of not releasing inmates until they receive an email or facsimile from ajudicial authority. The Plaintiff remained in BCADC without a warrant for arrest, order from a Court, order of
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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 11 of 19
removal, or other legal basis until June 8, 2016. He was in custody at BCADC for approximately 76 days after his criminal charges were dismissed pursuant to the ICE detainer and the Defendant Bexar County's policy, practice or custom requiring an email or facsimile from ajudicial authority before a detainee is released. He was at no time presented before a magistrate or other authority for a hearing. Nor was he provided bail or the opportunity to seek a bond. 44. During his unlawful detention, the Plaintiff submitted multiple inquiries with the Defendants seeking to understand why he was detained after the Bexar County Court dismissed the misdemeanor criminal case against him. Defendant Bexar County informed the Plaintiff that he was being detained pursuant to a detainer request from immigration officials.
45. On April 29, 201 6over one month after his criminal charges were dismissedthe
Plaintiff wrote to the Bexar County Sergeant's Office: "What's my release date? And do I have bond or what? My case has already been dismissed. Let me know something."
To which the response was: "Hold for ICE."
See Exh. E.
46. Plaintiff's girlfriend also inquired on multiple occasions about why Plaintiff remained in custody after his misdemeanor assault charge was dismissed. Defendant Bexar County repeatedly informed her that the Plaintiff was detained pursuant to a request from federal immigration officials. 47. Plaintiff's girlfriend then called ICE who informed her that the Plaintiff was not on their list to be picked up. 48. During Plaintiff's custody at the BCADC he was never served with a warrant for his arrest
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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 12 of 19
for federal immigration violations, a notice to appear before an immigration judge, or a final order
of removal. He also was not served with the ICE detainer request in violation of ICE policy. He was not provided a bond, judicial review, or provided any due process of law.
49. On June 6, 2016, Plaintiff, still being unlawfully detained without a warrant or pending charges, was forced to hire counsel and pay attorney fees for an attorney to seek his release from unlawful detention in the BCADC. 50. According to the Defendant Bexar County's filings with this Court, the following day, "[o]n June 7, 2016 at approximately 2:50 p.m., BCADC received an order via e-mail from the court showing that charges against Mr. Trujillo Santoyo had been dismissed." ECF Doc. 4-1 at ¶ 8. He was released into ICE custody on June 8, 2016. See also Exh. F (Letter from the Bexar
County Sheriffs Office confirming the dates of Plaintiffs detention in the Bexar County Jail).
51. The Defendants held Plaintiff in the BCADC, against Plaintiff's will, without his consent, and with absolutely no legal authority from March 24, 2016 (date when his charges were dismissed) to June 8, 2016 (date when immigration assumed his custody).
52. ICE agents then assumed custody of the Plaintiff on June 8, 2016 and read him his Miranda
rights. 53. From March 24, 2016 until June 8, 2016, while under arrest and detained at the BCADC the Plaintiff was not charged with any offense under federal immigration laws. He was held
without a warrant for his arrest. He did not receive prompt independent review of whether there
was probable cause to detain him. He was not provided notice about any pending charges. He had
no opportunity to appear before a judge to seek his release, to learn why he was deprived of his
liberty, or post a bond.
FIRST CLAIM FOR RELIEF
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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 13 of 19
(Plaintiffs first 42 U.S.C. § 1983 claim against Defendant Bexar CountyICE detainer policy)
54. The foregoing allegations are incorporated by reference.
55. The Defendant Bexar County has a policy, practice or custom of detaining individuals in
the BCADC after criminal charges have been dismissed, bonds have been posted, and after
detainees have completed their terms of imprisonment whenever they receive a detainer request
from ICE. 56. The Defendant Bexar County's policymakers have actual and constructive knowledge about this policy, practice and custom.
57. The Defendant Bexar County's policy, practice or custom of detaining individuals was a moving force that caused the Plaintiffs unconstitutional detention in the BCADC. The Defendant Bexar County deprived the Plaintiffofhis liberty, without legal authority, in violation ofhis Fourth
Amendment right to be free from unreasonable searches and seizures. Defendant Bexar County
deprived the Plaintiffof his liberty, without legal authority, in violation ofhis Fifth and Fourteenth
Amendment rights to due process. 58. Defendant Bexar County's policies, practices and customs, including its deliberate indifference to establish adequate procedures, policies, supervision and training, caused Plaintiffs
injuries and the violations of his constitutional rights. 59. The Defendant's policy, practice or custom of detaining individuals with ICE detainers is a pattern of conduct that will be repeated in the future unless this Court intervenes to stop it. 60. As a direct and proximate cause of Defendant Bexar County's policy of detaining
individuals without a warrant for arrest whenever immigration agents request them to do so the Plaintiff suffered damages and is entitled to compensatory damages, attorney fees and costs pursuant to 42 U.S.C. § 1988 and any other relief the Court deems just and proper.
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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 14 of 19
SECOND CLAIM FOR RELIEF (Plaintiffs first 42 U.S.C. § 1983 claim against Defendant Bexar Countyemail/fax policy.)
61. The foregoing allegations are incorporated by reference.
62. The Defendant Bexar County maintains a policy, practice or custom of not releasing
individuals from the BCADC until they receive "judicial authorization" via "facsimile and/or email." ECF Doc. 4-1, p. 2, ¶ 3. 63. The Defendant Bexar County's policymakers have actual and constructive knowledge about this policy, practice or custom.
64. The Defendant Bexar County's policy, practice, or custom of not releasing individuals until they receive a fax or email from their own employees was the moving force behind the Plaintiffs
unconstitutional detention in the BCADC.
65. The Plaintiffs criminal charges were dismissed on March 24, 2016, but the Defendant Bexar County unlawfully continued to detain the Plaintiff until June 8, 2016 when it received an email from the court. 66. The Defendant Bexar County was aware that the Plaintiff was being detained at the BCADC after his charges were dismissed. First, the Defendant Bexar County, through its County Court, ordered the dismissal of the charges. The Defendant Bexar County, through the District Attorney's Office, was a party to the litigation and had knowledge that the charges were dismissed. Finally, the Plaintiff alerted the Defendant Bexar County that he was still in custody on April 29, 2016, over one month after his charges were dismissed. See Exh. E. 67. The Plaintiffs detention in the BCADC pursuant to the email/fax policy from March 24, 2016 until June 8,2016 violated the Fourth Amendment because the Plaintiff was detained without a warrant or probable cause that he committed an offense.
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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 15 of 19
68. The Plaintiff's detention in the BCADC pursuant to the email/fax policy from March 24,
2016 until June 8, 2016 violated the due process clause of the Fifth and Fourteenth Amendments. The Plaintiff was not provided notice of any charges and was never afforded a hearing. He was
not provided bail and was not given the opportunity to request a bond.
69. The Defendant's policy, practice or custom ofdetaining individuals with charges dismissed until they receive an email or facsimile from a judicial authority is a pattern of conduct that will
be repeated in the future unless this Court intervenes to stop it.
70. As a direct and proximate cause of Defendant Bexar County's policy of detaining
individuals without a warrant for arrest pursuant to their "email/fax" policy or custom the Plaintiff suffered damages and is entitled to compensatory damages, attorney fees and costs pursuant to 42 U.S.C. § 1988 and any other relief the Court deems just and proper.
THIRD CLAIM OF RELIEF (Plaintiff's statutory claims against the Federal Defendants for issuing detainers in excess of the
authority provided them under the INA) 71. The foregoing allegations are incorporated by reference.
72. The Federal Defendants' application of immigration detainers against the Plaintiff exceeded their constitutional and statutory authority in violation of law.
73. The Federal Defendants failure to issue detainers in accordance with the due process
protections required by the relevant provisions of the 1NA (8 U.S.C. § 1226(a), 8 U.S.C. § 1357(a)(2), and 8 U.S.C. § 1357(d)) caused the Defendant's loss of liberty. See Moreno v.
Napolitano, No. 11-C -5452, 2016 U.S. Dist. LEXIS 136449 (N.D. Ill. Sep. 30, 2016) (interpreting § 1 357(a)(2) to require an individualized determination that the detainee "is likely to escape" before a warrantless arrest pursuant to an ICE detainer can be effectuated). 74. ICE routinely issues detainers to individuals who have not been convicted a crime relating
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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 16 of 19
to a controlled substance in violation of 8 U.S.C. § 1357(d)'s plain language.
75. ICE routinely issues detainers without warrants and without any consideration about whether the individual affected is reasonably likely to escape.
76. As a direct and proximate cause of these statutory violations, the Plaintiff was unlawfully
detained and is entitled damages.
FOURTh CLAIM OF RELIEF
(Plaintiff's constitutional claims) 77. All preceding allegations are incorporated by reference. 78. ICE detainers should be declared unconstitutional since they constitute a warrantless
seizure in violation of the Fourth Amendment.
79. ICE detainers should be declared unconstitutional since they violate detainees' due process
rights in violation of the Fifth Amendment. 80. Defendant Bexar County's policy, practice and custom of detaining people under an ICE
detainer even after the time requested by 'ICE has expired violates the Fourth and Fifth Amendments and should be declared unconstitutional.
81. As a direct and proximate cause of these constitutional violations, alone or in the aggregate, the Plaintiff was unconstitutionally deprived of his liberty.
FIFTH CLAIM OF RELIEF (Plaintiff's Bivens claims against Defendant Lucero, and Defendant Davis) 82. Defendant Lucero's policies, customs and practices, including his deliberately indifferent failure to establish adequate procedures, supervision and training caused the Plaintiff's injuries and the violations of the Fourth and Fifth Amendments.
83. These policies are not reasonably related to any legitimate governmental objective.
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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 17 of 19
84. Defendant Lucero' s actions and inactions caused the Plaintiff to be deprived of his Fourth Amendment right to be free from unreasonable seizures and his Fifth Amendment right to due process of law.
85. Defendant Davis incorrectly represented to the Defendant Bexar County that ICE had a
final order of removal which provided them with probable cause for arrest. In fact, on the day when the detainer was issued, ICE was not in possession of a final order of removal which it could execute against the Plaintiff. ICE was without an order of removal until June 8, 2016. See Exh. C. This order of removal is still not a final, executable order. See Ponce-Osorio v. Johnson, 824 F.3d 502 (5th Cir. 2016) (holding that reinstatement orders of removal are final only upon completion of reasonable fear and withholding of removal proceedings). 86. As a result ofhis unlawful detention, the Plaintiff is entitled to compensatory damages, and
any other relief the Court deems just. PLAINTIFF'S CLAIM FOR ATTORNEY FEES
87. The Plaintiff seeks and is entitled to recover reasonable attorney fees, expenses and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, for those claims to which it is appropriate.
JURY DEMAND 88. Pursuant to the Federal Rule of Civil Procedure 38(b), Plaintiff requests a trial by jury as to all issues so triable.
CONCLUSION For the foregoing reasons, the Plaintiff respectfully requests the Court enter the following orders: a) Enter judgment in favor of Plaintiff against Defendants for compensatory and
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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 18 of 19

punitive damages; b) Declare ICE detainers violate the Fourth and Fifth Amendments;
c) Declare Defendant Bexar County's policy, practice, or custom of detaining
persons under an ICE detainer to be unconstitutional; d) Award Plaintiff damages for his unlawful detention pursuant to the Defendant
Bexar County's policy, practice or custom of requiring an email or facsimile from
a judicial authority before releasing an individual; e) Grant Plaintiff reasonable attorney's fees and his costs and expenses herein as
authorized by 42 U.S.C. § 1988 against Defendant; and f) Grant Plaintiff any and all additional relief to which they may appear to be
entitled.

Respectfully submitted,

Is! Lance Curtright Lance Curtright State Bar No. 24032109 lance(dmcausa.com

Juan Carlos Rodriguez State Bar No. 24033007 j uancarlos()dmcausa.corn

DE MOTI', McCHESNEY, CURTRIGHT,

ARMENDARIZ, LLP

800 Dolorosa, Ste. 100

San Antonio, Texas 78207

Phone:

(210)354-1844

FAX:

(210)212-2116

Attorneys for Plaintiff

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Case 5:16-cv-00855-OLG Document 11 Filed 10/18/16 Page 19 of 19

CERTIFICATE OF SERVICE
I hereby certif' that on October 18, 2016, I caused the foregoing Plaintiff's First Amended Complaint and Attached Exhibits to be electronically filed using the Court's CM!ECF system. All Defendants who have entered their appearance through the Court's CM/ECF system will be served with a copy through the Court's electronic system.

October 18, 2016

/5/ Lance Curtright Lance Curtright
ATTORNEY FOR PLAINTIFF

 
 Case 5:16-cv-00855-OLG Document 1 Filed 08/26/16 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Julio Trujillo Santoyo,

§

§

Plaintiff,

§

§

V.

§

§

Bexar County, Texas; Enrique M. Lucero, §

Field Office Director for the San Antonio Field §

Office, and John Doe 1-5 (employees of

§

Immigration and Customs

§

Enforcement);

§

§

Defendants.

§

CIVIL ACTION NO. 5:16-cv-855

PLAINTIFF’S ORIGINAL COMPLAINT

The Plaintiff, Julio Trujillo Santoyo, through counsel, respectfully brings this action seeking

damages against the Defendants for unlawfully detaining him in the Bexar County Jail from March

24, 2016 until June 7, 2016 without charge, warrant, or probable cause. In furtherance of this claim,

he alleges as follows.

INTRODUCTION

1. This action is brought to redress the unlawful and prolonged imprisonment by law

enforcement officials of the Plaintiff Julio Trujillo Santoyo.

2. Defendant Bexar County imprisoned the Plaintiff for approximately 75 days after his

criminal charges were dismissed pursuant to a policy and practice under which Defendant Bexar

County routinely detains individuals whenever Immigration and Customs Enforcement (ICE) agents

request them to do so. Defendant Bexar County’s policy and practice violates the Fourth, Fifth and

Fourteenth Amendments to the United States Constitution and expends significant law enforcement

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Case 5:16-cv-00855-OLG Document 1 Filed 08/26/16 Page 2 of 12
resources in an unlawful attempt to enforce federal immigration law. Defendant Bexar County’s illegal and wasteful conduct has caused, and if not addressed will continue to cause, substantial harm to Texas residents. 3. Plaintiff also brings constitutional claims under the Fourth and Fifth Amendments pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against the ICE officers and employees responsible for his illegal detention. These federal officers left the Plaintiff to languish in county jail for approximately 75 days without a warrant for arrest, without notice of any charges against him (there were none), without any opportunity to be considered for release on bond, and without any other legal process of any kind. The specific agents’ names are yet unknown to the Plaintiff. 4. To vindicate his and others’ fundamental constitutional rights, Plaintiff seeks a declaratory judgment that the Defendants’ policies, practices, and customs described herein are unconstitutional. Plaintiff also seeks monetary compensation for Defendants’ unconstitutional deprivation of his liberty.
JURISDICTION 5. This action arises under the Constitution and laws of the United States and this Court has jurisdiction pursuant to 42 U.S.C. § 1983, 28 U.S.C. §§ 1331 and 1343. 6. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 7. Venue is proper in this district because the Plaintiff resides in Bexar County and all of the underlying events occurred in this district. 28 U.S.C. § 1391(b).
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PARTIES 8. Plaintiff is an adult who currently resides in Bexar County, Texas. He was unlawfully detained by Defendants in the Bexar County Jail for 75 days after his assault charges were dismissed. 9. Defendant Bexar County, Texas is a county organized and operating under the laws of the State of Texas. Defendant Bexar County is geographically located within the boundaries of this district and can be sued in its own name. 10. Defendant Enrique Lucero was the Field Office Director of the San Antonio Field Office for the ICE Office of Detention and Removal Operations during the time period when Plaintiff was illegally detained. Defendant Lucero was responsible for formulating and implementing policies applicable to the ICE San Antonio Field Office’s detention of prisoners, including policies to ensure that those inmates housed at ICE’s request at the Bexar County Jail are detained pursuant to and accordance with federal regulations, and that their detention does not violate the United States Constitution. Defendant Lucero was also responsible for training and supervising his staff to ensure that those inmates held at ICE’s request in the Bexar County Jail are detained pursuant to and in accordance with federal law and that their detention does not violate the U.S. Constitution. At all times relevant to this Complaint, Defendant Lucero acted or failed to act under color of federal law. Defendant Lucero is being sued in his individual capacity. 11. Defendants John Doe 1-5 are ICE agents who were working in the San Antonio Field Office at the time when Plaintiff was unlawfully detained. These ICE officers made requests to the Defendant Bexar County to detain the Plaintiff, thereby causing his illegal detention. These Defendants also received notice about Plaintiff’s long-term, illegal detention and failed to (a) initiate
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the steps in ICE procedures that would result in the provision of legal process to the Plaintiff; or (b) terminate the Plaintiff’s detention. At all times relevant to this Complaint, Defendants John Doe 1-5 acted or failed to act under color of law. These Defendants are sued in in their individual capacities and are referred to in this Complaint as “Defendant ICE agents.”
FACTS A. Immigration detainer requests generally. 12. The immigration laws of the United States are enforced by ICE, which is a sub-agency of the Department of Homeland Security (“DHS”). 13. When ICE desires to investigate whether to initiate a removal proceeding against a suspected noncitizen who is in the custody of a local law enforcement agency, they frequently issue an immigration detainer request. 14. Federal immigration detainers or holds are requests from immigration authorities to local law enforcement asking them to temporarily detain a suspected noncitizen to permit immigration agents time to assume custody over the detainee. ICE cites 8 C.F.R. § 287.7 as authority for its detainer requests (“The detainer is a request that such agency advise the Department, prior to the release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.”). 15. Immigration detainers are merely requests. They are not warrants, enforceable orders, and are in no way binding upon the local law enforcement agency that receives it. Nor do immigration detainers require probable cause that the detainee committed a crime. In fact, immigration detainers are routinely used to detain individuals based upon suspected civil violations of the immigration laws.
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16. Since immigration detainers are merely requests to detain a suspected immigration violator, they do not impose a mandatory obligation upon Defendant Bexar County to detain the person. See, e.g., Galarza v. Szalczyk, 745 F.3d 634, 641 (3d Cir. 2014) (The Immigration and Nationality “Act does not authorize federal officials to command state or local officials to detain suspected aliens subject to removal.”). In fact, the Tenth Amendment prevents federal immigration officials from ordering state or local officials to imprison suspected immigration violators “at the request of the federal government.” Id. at 643. 17. Generally, ICE detainers request local lawful enforcement to temporarily detain a suspected noncitizen for 48 hours, not including weekends or federal holidays. 18. Immigration detainers are not subject to review by a neutral judge or magistrate prior to issuance, nor are they subject to the same procedural and substantive requirements and safeguards to which ordinary criminal detainers are subject.
B. Defendant Bexar County’s official policy, practice, or custom is to detain individuals whenever ICE issues a detainer.
19. Defendant Bexar County routinely detains individuals without a warrant whenever ICE issues a detainer pursuant to an official county policy, practice, or custom. 20. It is the actual policy and practice of the Defendant Bexar County to hold persons with immigration detainers in the Bexar County Jail awaiting pick-up by the federal immigration authorities, even when such people have had bond posted on their behalf, have paid their fines, have no additional charges against them, and are not subject to any judicial order requiring or authorizing continued detention. 21. Defendant Bexar County’s policy, practice and custom is to enforce immigration detainers regardless if immigration officials have, or even claim to have, probable cause to detain the
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suspected immigration violator. 22. Defendant Bexar County’s policy, practice or custom of detaining individuals without a warrant whenever immigration requests them to do so is a “persistent, often repeated, constant” constitutional violation that “constitutes a custom and policy.” Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995). 23. Although immigration detainers are supposed to be “temporary,” it is the Defendant Bexar County’s policy, practice or custom to detain individuals for however long is necessary for ICE officials to assume custody. 24. The Plaintiff’s unlawful detention without a warrant was not an isolated event or the product of an individual employee’s negligence. Rather, the constitutional violations were a direct result of Defendant Bexar County’s official policy, practice or custom of always enforcing federal immigration detainers. 25. Defendant Bexar County’s policymakers have actual and constructive knowledge about the constitutional violations that result from the policy to hold detainees whenever ICE issues a hold or detainer and regardless if there is a properly issued warrant for arrest. Indeed, Bexar County Sheriff Susan Pamerleau represented to Texas State Senator Brian Birdwell that the Defendant Bexar County complies with all immigration detainer requests. See Exh. A. Defendant Bexar County detains such individuals regardless if there is a properly authorized warrant allowing them to do so or if an immigration detainer is supported by an affidavit of probable cause.
C. Plaintiff’s unlawful detention in the Bexar County Jail from March 24, 2016 until June 7, 2016.
26. On or around January 21, 2016, Plaintiff was arrested for misdemeanor assault and placed into custody at the Bexar County Jail.
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27. While in custody at the Bexar County Jail, Defendant ICE agents conducted an immigration interview with the Plaintiff. They concluded that the Plaintiff was a foreign born national and accordingly lodged an immigration detainer with the Bexar County Jail. At no time while Plaintiff was in custody at the Bexar County Jail did Defendant ICE agents seek a warrant of arrest for federal immigration violations. 28. On or around March 24, 2016, Plaintiff’s misdemeanor assault charge was dismissed. See Exh. B (Order of dismissal). Yet he remained in unlawful detention at the Bexar County Jail without a warrant for arrest, order from a Court, or other legal basis until June 7, 2016. 29. Plaintiff inquired on multiple occasions seeking to understand why he was detained after the Bexar County Court dismissed his assault charges. Defendant Bexar County informed the Plaintiff that he was being detained pursuant to a request from immigration officials. 30. On April 29, 2016—over one month after his criminal charges were dismissed—the Plaintiff wrote to the Bexar County Sergeant’s Office:
“What’s my release date? And do I have bond or what? My case has already been dismissed. Let me know something.” To which the response was: “Hold for ICE.” See Exh. C. 31. Plaintiff’s girlfriend also inquired on multiple occasions about the reason why Plaintiff remained in custody after his misdemeanor assault charge was dismissed. Defendant Bexar County repeatedly informed her that the Plaintiff was detained pursuant to a request from federal immigration officials.
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32. Plaintiff’s girlfriend then called Defendant ICE agents who informed her that Plaintiff was not on their list to be picked up. 33. During Plaintiff’s custody at Bexar County Jail he was never served with a warrant for his arrest for federal immigration violations. 34. On June 6, 2016, Plaintiff, still being unlawfully detained without a warrant of arrest or probable cause, was forced to hire counsel and pay attorney fees for an attorney to seek his release from unlawful detention in the Bexar County Jail. Defendant Bexar County released Plaintiff into immigration custody on June 7, 2016. See Exh. D (Letter from the Bexar County Sheriff’s Office confirming the dates of Plaintiff’s detention in the Bexar County Jail). 35. Defendants held Plaintiff in the Bexar County Jail, against Plaintiff’s will, without his consent, and with absolutely no legal authority from March 24, 2016 (date when his charges were dismissed) to June 7, 2016 (date when immigration assumed his custody). 36. ICE agents then “arrested” the Plaintiff on June 8, 2016 and read him his Miranda rights. 37. From March 24, 2016 until June 8, 2016, the Plaintiff was not charged with any offense under federal immigration laws. He did not receive prompt independent review of whether there was probable cause to detain him. He had no opportunity to appear before a judge to seek his release, to learn why he was deprived of his liberty, or post a bond.
FIRST CLAIM FOR RELIEF (Defendant Bexar County’s detention of the Plaintiff violated the Fourth, Fifth, and Fourteenth
Amendments of the U.S. Constitution.) 38. The foregoing allegations are incorporated by reference. 39. Defendant Bexar County deprived the Plaintiff of his liberty, without legal authority, in violation of his Fourth Amendment right to be free from unreasonable searches and seizures.
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40. Defendant Bexar County deprived the Plaintiff of his liberty, without legal authority, in violation of his Fifth and Fourteenth Amendment rights to due process. 41. Defendant Bexar County’s policies, practices and customs, including its deliberate indifference to establish adequate procedures, policies, supervision and training, caused Plaintiff’s injuries and the violations of his constitutional rights. 42. As a direct and proximate cause of Defendant Bexar County’s policy of detaining individuals without a warrant for arrest whenever immigration agents request them to do so the Plaintiff suffered damages and is entitled to compensatory damages, attorney fees and costs pursuant to 42 U.S.C. §§ 1983 and 1988 and any other relief the Court deems just and proper.
SECOND CLAIM FOR RELIEF (Bivens claim against the ICE Defendants – Fourth and Fifth Amendments) 42. The foregoing allegations are incorporated by reference. 43. The Plaintiff was deprived of his liberty without legal authority, in violation of his right to be free of unreasonable searches and seizures and his right to due process of law. 44. Defendant Lucero’s policies, customs and practices, including his deliberately indifferent failure to establish adequate procedures, supervision and training caused the Plaintiff’s injuries and the violations of the Fourth and Fifth Amendments. 45. These policies are not reasonably related to any legitimate governmental objective. 46. The ICE Defendants’ actions and inactions caused the Plaintiff to be deprived of his Fourth Amendment right to be free from unreasonable seizures and his Fifth Amendment right to due process of law. 47. As a result of his unlawful detention, the Plaintiff is entitled to punitive damages,
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compensatory damages, and any other relief the Court deems just. THIRD CLAIM OF RELIEF
(Declaratory relief under 28 U.S.C. §§ 2201 and 2202) 48. All preceding allegations are incorporated by reference. 49. ICE detainers should be declared unconstitutional since they constitute a warrantless seizure in violation of the Fourth Amendment of the United States Constitution. 50. ICE detainers should be declared unconstitutional since they violate detainees’ due process rights in violation of the Fifth Amendment. 51. Defendant Bexar County’s policy, practice and custom of detaining people under an ICE detainer even after the time requested by ICE has expired violates the Fourth, Fifth and Fourteenth Amendments and should be declared unconstitutional.
JURY DEMAND 52. Pursuant to the Federal Rule of Civil Procedure 38(b), Plaintiff requests a trial by jury as to all issues so triable.
Conclusion For the foregoing reasons, the Plaintiff respectfully requests the Court enter the following orders: a) Enter judgment in favor of Plaintiff against Defendant Bexar County for
compensatory damages; b) Enter judgment in favor of Plaintiff against all ICE Defendants and award
compensatory and punitive damages; c) Declare ICE detainers to violate the Fourth and Fifth Amendments;
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d) Declare Defendant Bexar County’s policy and practice of detaining persons under an ICE detainer for longer than is requested to violate the Fourth, Fifth and Fourteenth Amendments;
e) Grant Plaintiff reasonable attorney's fees and his costs and expenses; and f) Grant Plaintiff any and all additional relief to which they may appear to be
entitled.
Respectfully submitted, /s/ Lance Curtright Lance Curtright State Bar No. 24032109 lance@dmcausa.com Juan Carlos Rodriguez State Bar No. 24033007 juancarlos@dmcausa.com DE MOTT, McCHESNEY, CURTRIGHT, ARMENDARIZ, LLP 800 Dolorosa, Ste. 100 San Antonio, Texas 78207 Phone: (210)354-1844 FAX: (210)212-2116 Attorneys for Plaintiff
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Case 5:16-cv-00855-OLG Document 1 Filed 08/26/16 Page 12 of 12 EXHIBIT LIST
A. Copy of letter from Bexar County Sheriff Susan Pamerleau to Texas State Senator Brian Birdwell.
B. Copy of March 24, 2016 order from Bexar County Court 7 dismissing assault charges against the Plaintiff.
C. Copy of Plaintiff’s April 29, 2016 correspondence with Defendant Bexar County concerning his detention.
D. Copy of letter from the Bexar County Sheriff’s Office Records Clerk Jose Angel Laines verifying the dates of Plaintiff’s detention in the Bexar County Jail.
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 Case 5:16-cv-00855-OLG Document 53 Filed 10/18/17 Page 1 of 10

UNITED STATES DISTRICT COURT

FILED

WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

OCT 1 8 2017

JULIO TRUJILLO SANTOYO,
Plaintf

CLERK, U.S; DISTRICT COURV

WESTERN DIST

S

BY

DEPUfY ERK

V.

Civil No. 5:16-CV-855-OLG

UNITED STATES OF AMERICA et al.,

Defendants.

This case is before the Court on the Motion for Reconsideration of the Court's Order of
June 5, 2017, submitted by Defendant Bexar County (docket no. 43); the Motion to Dismiss
pursuant to Fed. R. Civ. P. 12(b)(1) and (6) submitted by the federal Defendants1 (docket no.
45); the Motion to Stay Discovery and Scheduling Order Deadlines submitted by the federal
Defendants (docket no. 46); and the Motion to Compel submitted by Plaintiff (docket no. 52).
A separate case also pending before this Court, City ofEl Cenizo v. Texas, SA-17-CV-
404-OLG, poses questions similar to those raised by Defendant Bexar County's Motions for
Reconsideration regarding the Fourth Amendment consequences of a policy of blanket
fulfillment of ICE detainer requests. In that case, this Court entered a preliminary injunction
based in part upon a finding that such a policy likely violates the Fourth Amendment. City ofEl
Cenizo v. Texas, SA-17-CV-404-OLG, 2017 WL 3763098, at *28..*35 (W.D. Tex. Aug. 30,
2017). On September 25, 2017, the United States Court of Appeals for the Fifth Circuit stayed
For purposes of this Order, the federal Defendants include the Department of
Homeland Security (DHS), Acting U.S. Immigration and Customs Enforcement (ICE) Director
Thomas D. Homan, and ICE San Antonio Field Offie Director Daniel Bible. Two additional
ICE-affiliated officers were named as Defendants in this case: former San Antonio Field Office
Director Enrique Lucero and ICE Officer Leonard Davis, both of whom Plaintiff sued in their individual capacities. Docket no. 11 at ¶J 17-18. Plaintiff has voluntarily dismissed the Bivens
claims he initially asserted against the individual ICE defendants. Docket no. 26.
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this Court's injunction as to the state law requirement that localities "comply with, honor, and fulfill" ICE detainer requests. Cily ofEl Cenizo v. Texas, 17-50762, 2017 WL 4250186, at *2
(5th Cir. Sept. 25, 2017). The underlying appeal of the injunction remains pending before the Fifth Circuit, and, as of this Order, it remains possible that further rulings from the Fifth Circuit may establish new controlling authority that is relevant to Plaintiff's claims against Bexar
County in this case. The Court therefore defers a ruling on the motion for reconsideration at this time.
The Court finds that the motion to dismiss should be granted, and the remaining motions should be denied as moot.
Background Plaintiff asserts claims under 42 U.S.C. § 1983 for violations of the Fourth, Fifth, and Fourteenth Amendments; claims for declaratory relief under 28 U.S.C. § 2201 and 2202; and claims for violations of the Immigration and Nationality Act (INA), 8 U.S.C. § 1226(a) and 1357(a)(2) and (d), all arising from his detention at the Bexar County Adult Detention Center (BCADC) from March 24, 2016, to June 7, 2016. Docket no. 11 at 1 & ¶J 54-86. Plaintiff asserts these claims against the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and Bexar County.
Federal Defendants' Motion to Dismiss (docket no. 45) The federal Defendants have moved to dismiss Plaintiff's claims against them pursuant to Fed. R. Civ. P. 1 2(b)(1) and (6). Plaintiff has asserted three claims against the federal
Defendants: a claim that the federal Defendants issued the detainer request against him in
violation of 8 U.S.C. § 1226(a), 1357(a)(2), and 1357(d), docket no. 11 at ¶IJ 71-76; a claim that "ICE detainers should be declared unconstitutional since they constitute a warrantless seizure in violation of the Fourth Amendment" and because "they violate detainees' due process rights in
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violation of the Fifth Amendment[,]" docket no. 11 at ¶J 77-79; and a false imprisonment claim asserted under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1), 2674, 2680(h), 5:1 7-cv-54-OLG, docket no. 1 at ¶J 44-51.
The federal Defendants argue that, for several reasons, this Court lacks subject matter jurisdiction over Plaintiff's claim. They argue first that Plaintiff's claims are barred by sovereign immunity. Docket no. 45 at 9-10. Next, they argue that the Court lacks subject matter jurisdiction over Plaintiff's false imprisonment claim based on the holding, in Heck v. Humphrey, 512 U.s. 477 (1994), that "a civil tort action, including an action under section 1983, is not an appropriate
vehicle for challenging the validity of outstanding criminal judgments." Docket no. 45 at 10-11;
DeLeon v. City of Corpus Christi, 488 F.3d 649, 652 (5th Cir. 2007) (discussing Heck, noting that "[w]hen a plaintiff alleges tort claims against his arresting officers, the district court must first consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence. If so, the claim is barred" except in circumstances not relevant here (internal quotation marks omitted)). Next, the federal Defendants argue that sections of the 1INA that prohibit District Court review of certain civil removal actions also prohibit review by this Court of "the issuance of or effect of immigration detainers." Docket no. 45 at 11-15. Finally, they argue that Plaintiff's false imprisonment claim is specifically barred by the exception to the FTCA's waiver of sovereign immunity for discretionary functions. Docket no. 45 at 15-17.
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to move for
dismissal where the Court lacks subject matter jurisdiction over the case. Subject matter jurisdiction is lacking when the claims against a Defendant are barred by sovereign immunity. Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998). "The party asserting jurisdiction has
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the burden of proof." United States v. Renda Marine, Inc., 667 F.3d 651, 654 (5th Cir. 2012).2 In evaluating the existence of subject matter jurisdiction, the Court may consider the complaint
alone, the complaint supplemented by undisputed facts, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Robinson v. TCl/US W. Commc 'ns
Inc., 117 F.3d 900, 904 (5th Cir. 1997). A motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief. Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001); Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. May 1981). In reviewing a motion under Fed. R. Civ. P. 12(b)(6), the Court must first identify the
complaint's factual allegations, which are assumed to be true, and distinguish them from any
statements of legal conclusion, which are not entitled to the assumption of truth. Ashcroft v.
Iqbal, 556 U.S. 662, 678, 680-8 1 (2009). Second, the Court must assess whether the assumed-astrue factual allegations set forth a plausible claim to relief. This is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense" to determine whether "the well-pleaded facts. . . permit the court to infer more than the mere possibility of
misconduct[.]" Iqbal, 556 U.S. at 679. Ultimately, the claim is subject to dismissal if it lacks
"factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. When, as here, the Court is presented with both a motion under Rule 12(b)(1) challenging the Court's subject matter jurisdiction and other Rule 12 motions, the Court should determine the existence of subject matter jurisdiction before
Specifically, when the question of subject matter jurisdiction turns on the scope of the discretionary function exemption to the FTCA's waiver of sovereign immunity, the plaintiff at the pleading stage "must invoke the court's jurisdiction by alleging a claim that is facially outside of the discretionary function exception[,]" although it is less clear whether at successive stages the burden shifts to the government to establish the applicability ofthe exception. St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 & n.3 (5th Cir. 2009); Gibson v. United States, 809 F.3d 807, 811 n.l (5th Cir. 2016).
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proceeding to other arguments for dismissal. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
The FTCA "waives sovereign immunity for many torts committed by federal employees[,]" but not when the allegedly tortious acts involve the exercise ofjudgment or choice by the federal employee. Tsolmon v. United States, 841 F.3d 378, 380 (5th Cir. 2016) (citing United States v. Gaubert, 499 U.S. 315, 322 (1991); discussing discretionary function exception
to FTCA's waiver of sovereign immunity, under 26 U.S.C. § 2680(a)). The discretionary
functions as to which the FTCA does not waive immunity include "decisions on when, where, and how to investigate and whether to prosecute" immigration offenses. Tsolmon, 841 F.3d at 383. The Court agrees with the federal Defendants that, just as the issuance of a Notice to Appear in Tsolmon was classified as a discretionary function even though it triggered a detention
that was mandatory under agency policy, 841 F.3d at 382-83, the issuance of the detainer request
in this case was a discretionary function. The statutory and regulatory authorities that regulate the issuance of ICE detainer requests do not mandate their issuance, but provide that defined
categories of officers may issue them when, in the officer's judgment, certain circumstances are
present. See, e.g., 8 U.S.C. § 1357(d); 8 C.F.R. § 287.7(a) (authorized immigration officer "may" issue detainer request form); Ernesto Javier De La Cruz-Flores v. United States, SA- 1 6-CV-707RCL, 2017 WL 4276812, at *6 (W.D. Tex. Sept. 25, 2017).
Plaintiff nonetheless argues, relying upon Tsolmon, that issuance of the detainer in this
case falls outside the discretionary function exemption because the officers "acted unlawfully and unconstitutionally, which they have no discretion to do[,]" by issuing a detainer request that was not predicated upon an arrest for a controlled substance offense or an individualized finding
of likelihood of escape before a warrant could be issued. Docket no. 50 at 12-13, 21. However, as this Court recently observed in El Cenizo, 8 U.S.C. § 1357(d), which Plaintiff contends
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restricts the issuance of detainer requests to arrests for controlled substance violations, merely references and establishes special requirements for detainer requests in those cases, but does not limit the use of detainers in the context of arrests for offenses not involving controlled substances. El Cenizo, 2017 WL 3763098, at *30 n.71. Although no other provision of the 1NA specifically authorizes the issuance of detainer requests, that authority predates the INA and has
long been viewed as implied by federal immigration enforcers' authority to arrest those
suspected of being removable.3 Plaintiff also contends that the detainer was illegal and therefore
not a discretionary function because ICE failed to adequately assess whether he was a flight risk, relying upon a generalized determination that "criminal aliens flee after release from jail and do not voluntarily report to ICE" rather than undertaking an individualized assessment as required by 8 U.S.C. § 1357(a)(2). Docket no. 50 at 13. However, the Court in Tsolmon held that "officers
are unprotected only when they use their discretion to act in violation of a statute or policy that
specifically directs them to act otherwise." Tsolmon, 841 F.3d at 384. The discretionary function exception still covers officers who arguably misapply a rule that leaves "room for policy
judgment or decision[,]" such as the "judgment-laden 'reasonable belief' standard" of 8 U.S.C. §
1357(a)(2).4 Tsolmon, 841 F.3d at 384.
Comm. for Immigrant Rights ofSonoma County v. County ofSonoma, 644 F. Supp. 2d 1177, 1199 (N.D. Cal. 2009); see also Exparte Korner, 123 P.2d 111, 112 (Cal. Dist. Ct. App. 1942) (referencing use of INS detainers); Slavik v. Miller, 89 F. Supp. 575, 576 (W.D. Pa. 1950),
aff'd, 184 F.2d 575 (3d Cir. 1950) (same); Chung Young Chew v. Boyd, 309 F.2d 857, 865 (9th Cir. 1962) (same).
Since Plaintiff's allegations do not show that the federal Defendants engaged in intentional misconduct or acted with bad faith, the FTCA's "law enforcement proviso," 28 U.S.C. § 1680(h), also does not establish the waiver of sovereign immunity. See, e.g., Ernesto Javier De La Cruz-Flores, 2017 WL 4276812, at *4 (discussing interaction between discretionary function exception and law enforcement proviso under Fifth Circuit law); Campos v. United States, 226 F. Supp. 3d 734, 742 (W.D. Tex. 2016).
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The Court therefore concludes that Plaintiff has failed to show that sovereign immunity does not bar his false imprisonment claim, for which he seeks compensatory damages, and that that claim should therefore be dismissed pursuant to Fed. R. Civ. P. 12(b)(l). Plaintiff also asserts statutory claims, for which he seeks compensatory damages, docket no. 11 at ¶ 74-76, and constitutional claims, for which he seeks declaratory relief, docket no. 11 at ¶IJ 80-81. As to his non-FTCA claims, Plaintiff cites 28 U.S.C. § 1331, 1343, 2201, and 2202, and the
Administrative Procedures Act (APA) as the bases for this court's subject matter jurisdiction. But "Sections 1331 and 1343 . . . may not be construed to constitute waivers of the federal government's defense of sovereign immunity[,]" and likewise, Sections 2201 and 2202 "does not grant any consent of the United States to be sued." Beale v. Blount, 461 F.2d 1133, 1138 (5th
Cir. 1972); Anderson v. United States, 229 F.2d 675, 677 (5th Cir. 1956); see also United States v. Smith, 393 F.2d 318, 321(5th Cir. 1968); Alamo Aircraft Ltd. v. City ofSan Antonio, 5:15CV-00784, 2016 WL 5720860, at *3 (W.D. Tex. Sept. 30, 2016). The APA, at 5 U.S.C. § 702, does waive sovereign immunity for claims asserted by "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a
relevant statute"but only insofar as their claims "seek[] relief other than money damages[.]"
Doe v. United States, 853 F.3d 792, 799 (5th Cir. 2017), as revised (Apr. 12, 2017); Sonoma County, 644 F. Supp. 2d at 1193. The federal Defendants note, however, that the APA's wavier of sovereign immunity is explicitly made subject to "other limitations on judicial review or the power or duty of the court to dismiss any action or deny reliefl,]" 5 U.S.C. § 701(a)(1), 702, and they argue that this Court lacks jurisdiction over those claims under the INA's limitations on judicial review, particularly 8 U.S .C. § 1252(g). The federal Defendants argue that Section 1252(g), which provides that "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence
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proceedings, adjudicate cases, or execute removal orders against any alien under this chapter[,]" functions, together with Section 1 252(b)(9), as an "unmistakable zipper clause" requiring that any statutory or constitutional claim against ICE arising from an action or proceeding brought in connection with removal be raised within the administrative immigration proceeding, and then
through a petition seeking review by the Fifth Circuit of his final order of removal. Docket no. 45 at 12-13. However, the Supreme Court has rejected the characterization of Section 1252(g) as a "zipper" clause that "covers the universe of deportation claims[,]" and has instead held that it
"applies only to three discrete actions that the Attorney General may take: her 'decision or action' to 'commence proceedings, adjudicate cases, or execute removal orders." Reno v. Am.Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (noting that "[tjhere are of course many other decisions or actions that may be part of the deportation process" and listing
examples). The federal Defendants point out a handful of district court decisionsalthough none from within the Fifth Circuitfinding that issuance of a detainer request does fall within the scope of Section 1252(g). Docket no. 45 at 14 (citing Kha Minh Dang v. Short, 3:15-CV-01870-
MA, 2016 WL 1070811, at *3 (D. Or. Mar. 16, 2016) and Bile v. Lund, No. 15-5323, 2015 U.S. Dist. LEXIS 117967 (C.D. Cal. Sept. 1, 2015)). However, in other cases, courts have expressed
doubt about whether Section 1252(g) reaches the issuance of a detainer request, and the Fifth Circuit has found that at least some confinement-related claims are distinct from the decision to commence proceedings and therefore remain justiciable outside the context of administrative immigration proceedings. See, e.g., Martinez v. United States, CV 13 O6844SJOSHX, 2014 WL 12607839, at *5 (C.D. Cal. Mar. 17, 2014) ("Courts are divided as to whether a decision to detain an alien pending removal "arises from" the decision to commence proceedings."); Humphries v. Various Fed. USINS Employees, 164 F.3d 936, 944 (5th Cir. 1999) (claim of mistreatment during detention not barred by Section 1252(g)); see also Alvarez v. US.
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Immigration & Customs Enf't, 818 F.3d 1194, 1205 (11th Cir. 2016), cert. denied sub nom. Alvarezv. Skinner, 137 S. Ct. 2321 (2017).
Ultimately, this Court need not resolve this question because, even assuming that
Plaintiff's remaining claims against the federal Defendants fall within the scope of Section 1252(g), the Court finds that they fail to set forth a plausible claim to relief. Plaintiff does not allege that ICE lacked probable cause of his removability when they issued the detainer request
to BCADC, or during his pre-removal confinement after BCADC released him into ICE custody. And more fundamentally, Plaintiff's claims against the federal Defendants gloss over a crucial distinction: he alleges that his detention in BCADC pursuant to ICE's detainer request violated his Fourth and Fifth Amendment rights, but his pleadings show that this detention was not carried out by ICE, but by Bexar County. And, as discussed above, ICE did not compel Plaintiff's detention by issuing a detainer request to BCADC, rather, it merely requested that the County hold him for up to 48 hours beyond the time he would otherwise be released.5 Despite this lack of any binding directive from ICE that Plaintiff be kept in custody for BCADC, Plaintiff
argues without authority that ICE is responsible for BCADC's 76-day post-dismissal detention of
Plaintiff because BCADC "act[ed] as the Federal Defendants' agent" and failed to respond to Plaintiff's complaints about his prolonged detention. Docket no. 50 at 9-10.
The core of Plaintiff's claim for declaratory relief against the federal Defendants, however, is that "ICE detainers should be declared unconstitutional{.]" Docket no. 11 at ¶J 78-
79. Plaintiff has not provided the Court with any authority that would support such a declaration. As discussed above, courts have long held that the authority to issue non-binding requests that law enforcement entities notifS' immigration enforcement before releasing a particular individual,
Of course, this analysis might differ if ICE were on notice that state law would convert
its detainer request into a binding obligation upon the local entity to which it was directed.
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or, if possible, prolong their detention to allow immigration enforcers to assume custody of them, is implied by the authority of immigration enforcers to detain those suspected of removability.
Likewise, courts have long held that the Constitution permits immigration enforcers to make
warrantless arrests of individuals they suspect are removable. Abel v. United States, 362 U.s. 217, 230 (1960) ("Statutes authorizing administrative arrest to achieve detention pending deportation proceedings have the sanction of time."). Assuming the truth of all facts alleged in Plaintiff's complaint, the Court agrees with the federal Defendants that he has failed to show that
the federal Defendants violated his Fourth Amendment or due process rights by requesting,
based on their suspicion of his removability, that Bexar County hold him for an additional 48 hours. Accordingly, Plaintiff's claims seeking non-monetary relief against the federal Defendants
should be dismissed.
The Court therefore concludes that the federal Defendants' Motion to Dismiss (docket no. 45) should be granted.
Conclusion and Order
It is therefore ORDERED that: The Motion to Dismiss submitted by the federal Defendants (docket no. 45) is GRANTED; and
The Motion to Stay Discovery and Scheduling Order Deadlines submitted by the federal Defendants and the Motion to Compel Discovery Responses submitted by Plaintiff (docket nos. 46, 52) are DENIED as moot.

SIGNED this

day of October, 20

ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE
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 Case 5:17-cv-00054-OLG Document 4 Filed 03/27/17 Page 1 of 2

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

JULIO TRUJILLO SANTOYO,

§ No. 5:17-CV-54-DAE

§

Plaintiff,

§

§

vs.

§

§

UNITED STATES OF AMERICA, §

§

Defendant.

§

ORDER GRANTING JOINT MOTION FOR CONSOLIDATION Before the Court is a Joint Motion to Consolidate Cases filed by Julio
Trujillo Santoyo (“Trujillo”) and the United States of America seeking to consolidate this case with ongoing litigation in Trujillo v. Bexar County, Texas, et al., 5:16-CV-855-OLG (“Bexar County litigation”). (Dkt. # 3.) The parties assert that the legal and factual issues are similar to those issues pending against the federal defendants in the Bexar County litigation. (Id. at 1.)
Federal Rule of Civil Procedure 42(a) provides that if actions “involve a common question of law or fact,” the court may “consolidate the actions” or “issue any other order to avoid unnecessary cost or delay.” Fed. R. Civ. P. 42(a). The decision to consolidate actions under Rule 42(a) is “entirely within the discretion of the district court as it seeks to promote the administration of justice.” Gentry v. Smith, 487 F.2d 571, 581 (5th Cir. 1973).
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The Court has reviewed the pleadings in each case and finds that the cases involve common questions of law and fact as both cases stem from the alleged unlawful detention of Trujillo in the Bexar County Adult Detention Center, from approximately March 24, 2016, until June 7, 2016. The Court therefore ORDERS that the cases be consolidated to avoid unnecessary cost or delay and promote the administration of justice. As the first-filed case, the Court designates 5:16-CV-855-OLG as the lead case and directs the parties to make any subsequent filings in the lead case.
IT IS SO ORDERED. DATED: San Antonio, Texas, March 24, 2017.
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